Can You Refuse to Cooperate at Law Enforcement Checkpoints?

Not a drive-thru
Not a drive-thru

A Southern California teacher's refusal to cooperate with agents at a U.S. Customs and Border Protection checkpoint in New Mexico seemed to have much of Southern California fantasizing about being so bold. Middle school teacher Shane Parmely was recently detained for an hour as she kept mum about her citizenship at the immigration checkpoint. "Are we crossing a border?" she reportedly asked officers. "I’ve never been asked if I’m a citizen before when I’m traveling down the road."

Civil liberties experts say Parmely had the right to remain silent, but they note that exercising this right comes with costs. In her case, the price was time. "You can be briefly seized," says USC law professor Niels W. Frenzen, director of the school's Immigration Clinic. "The question is, is it unreasonable? The longer you're held, the more likely it will be determined by a judge to be unreasonable."

Mark Endicott, the supervisory Border Patrol Agent in San Diego, said via email that his fellow law enforcers have the right to hold someone for a limited amount of time until they can determine if they're in the country legally.

"Border Patrol checkpoints are a critical tool for the enforcement of our nation’s immigration laws," he said. "At a Border Patrol checkpoint, an agent may question a vehicle’s occupants about their citizenship, place of birth, and request document proof of immigration status, how legal status was obtained and make quick observations of what is in plain view in the interior of the vehicle. During the course of the immigration inspection, if an occupant refuses to answer an agent’s questions, the agent may detain the driver for a reasonable amount of time until he or she can make a determination regarding the occupant’s immigration status. It is agency policy that all individuals with whom we interact are treated with dignity and respect."

The issue is: How long is a "reasonable" amount of time? "Being held for an hour is pretty egregious," Frenzen says. But if Parmely wanted to challenge her detention after the fact, she could end up spending even more time in court. Exercising one's rights can be inconvenient.

"You don't have to talk to border patrol agents," he says. "But the reality is that most people do."

In fact, Frenzen argues that Southern Californians could, theoretically, follow the lead of some Floridians who have started to refuse to cooperate with police at DUI checkpoints in recent years. In the Sunshine State, some motorists roll through checkpoints with their widows up, some offering drivers licenses, insurance cards and registration paperwork through a slight opening. "Refusing to talk alone is not probable cause" for a stop or arrest, he says.

However, he notes the reality of unequal law enforcement today. "An older white guy driving in his Volvo is a lot more likely to get away with it than a young brown kid," he says.

And keep in mind that Border Patrol and DUI checkpoints are indeed legal. (Dealing with agents as you enter the country is a different matter, legally.) The CBP can operate "interior" immigration checkpoints within 100 miles of United States borders, including coastlines. Courts long ago ruled that DUI checkpoints are legit so long as police abide by certain guidelines. In California those include publicizing the forthcoming operation, conducting consistent, unbiased stops (every other driver, for example), and ensuring that innocents are thwarted for a minimal amount of time.

"People have the right to say no" when it comes to cooperation, Frenzen says. "The question is, what next?"


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