U.S. Border Arrests

There has been a case in the news recently that led to much discussion about the appropriateness of strip searches at the U.S. border.  That case is Loretta Van Beek v. United States.  Ms. Van Beek filed in U.S. federal court complaining that she was strip searched and inappropriately fondled after failing to declare that she had raspberries in her vehicle. Ms. Van Beek is a resident of Ontario, and was apparently traveling to her vacation house in the United States at the time of the search.  She entered the U.S. at the Ambassador Bridge Detroit-Windsor border.   The U.S. Customs and Border Protection spokesman explained that strip search are left to  ”…the judgment of [the] individual CBP officers to use their discretion as to the extent of examination necessary.”  The limit on this power,  spokesman explained, was that “…CBP officers are expected to conduct their duties in a professional manner and to treat each traveler with dignity and respect.”  However, that is not really a correct statement of U.S. law.  To conduct a strip search, a border agent must have some level of individualized suspicion.  Strip searches can’t be done as a matter of routine.  U.S. courts have explained: ”While anyone at a border can be stopped for questioning and subjected to an inspection of luggage, handbags, pockets, wallets, without any suspicion at all on the part of customs officials, real suspicion is required before a strip search may be conducted.” United States v. Rodriguez, 592 F.2d 553, 556 (9th Cir. 1979). See also, Kirkpatrick v. Los Angeles, 803 F.2d 485, 489 (9th Cir. 1986) (government interest in preventing entry of contraband into country justifies searches at border that would otherwise not be constitutional, but border officials nonetheless must have “real suspicion” that contraband will be discovered before ordering strip search).  In Ms Van Beek’s case, it is hard to imagine why the border agents would believe that she had contraband hidden on her body just because she failed to declare that she possessed fruit when she crossed the border.  While it may be common for a person to hide such drugs as marijuana or cocaine on the person, the same just isn’t true for fruit.  It will be interesting to see how the Van Beek case turns out in court. In my practice as a defense lawyer, I rarely see strip searches at the border in Okanogan County, Ferry County or Stevens County, Washington.

In Canada the possession of smaller quantities of marijuana is more tolerated then in many areas of the U.S.  For Canadian citizens, being caught at the U.S. border with even tiny amounts of marijuana can be a disturbing experience.  In recent years at the U.S. border, foreign nationals caught with marijuana have been held up to 8 hours while U.S. federal agents search every inch of their car and personal belongings, and while others federal agents observe with one hand on their holster.

In many states in the U.S., policies toward marijuana have liberalized.  However, it seems that with federal agents at the U.S. Border, marijuana policies are stricter than ever.  Since the September 11^th attack, the number of agents at the U.S. border has increased dramatically. But rather than focusing exclusively on potential terror threats, many of these new agents pass their time scanning the border for Canadian citizens with a gram or two of marijuana.

Here are some tips for Canadians at the border

1. Be aware of border stops.  Often times a Canadian will end up at U.S. Customs by accident.  This is particularly true for many of the small border crossings in very rural locales.  Particularly at night, these crossing are not easily identified.  Many major Canadian routes are located parallel to the U.S. border, and one wrong turn can bring a person right into U.S. Customs.  Many people mistakenly believe that you can approach the border station and then ask to just turn around.  However, all the actual border stations are located within the territorial U.S., and travelers will be subjected to the same scrutiny as those attempting to cross the border.  Sometimes, Canadians will drive near the border to wait for the arrival of a friend. In this circumstance, be aware of any signs that warn travelers: “Beyond this point traffic must proceed directly to the border.”  In other words, if you drive near enough to the border crossing, you will find border officials waiving you in.
2. Remain Silent. I can’t speak to Canadian constitutional law, but in the United State you have the right to remain silent and not make statements that would incriminate yourself.  At some point an agent might read you your rights, but by this time you may have already incriminated yourself.  You may exercise your right against self-incrimination at any point.  If marijuana is found in your car, don’t make any statement confessing that you knew of its presence.  If the marijuana is in your luggage, your knowledge of its presence might seem pretty obvious, but then again no one knows that your friend couldn’t have just left it in there if you were previously traveling together.
3. Don’t try to talk yourself out of the charge. The border authorities don’t care if the marijuana was for personal use.   Border marijuana cases are referred for prosecution even when the amount in question is .1 gram. The agents might give you the impression that they will be more lenient if you are cooperative, but this is usually a ruse to get you talking.  Although some local city police in the interior of the U.S. might let you go with a warning, this never happens with marijuana at the border itself.
4. Know what to expect. While the border agents might seem excited about finding marijuana in your car, remember that federal prosecutors in the U.S. Attorney’s office will only rarely prosecute for a quantity of drugs that is relatively small.  Bringing any amount of a controlled substance across the border is a federal offense, but in practice you will be referred for charging in State court in the nearby counties.