Legal Implications of Customs and Border Protection Officers Making Arrests for Suspected Violations of State Law

Each day, thousands of people request entry into the United States via the San Ysidro port of entry. At the border, individuals have significantly reduced constitutional protections against unreasonable searches and seizures; in fact, many detentions and searches are not deemed unreasonable because of the great national security interests. Of course, the main purview of a Border Protection Officer is to prevent contraband from entering the United States and to enforce immigration laws. But what if the Officer suspects a violation of state law?

This question was recently presented in one my cases in which a client was ultimately arrested and charged with driving under the influence. Client was entering the U.S. from Mexico and directed to secondary inspection on a computer generated referral (random). The Officer at the lane-booth asked him to drive to secondary. Once in the secondary inspection area, client was seen vomiting outside the driver’s side door of his vehicle by a second Officer. A conversation was had regarding my client’s consumption of alcohol earlier in the day. The Officer then asked the client to step out of the vehicle. At that point, the Officer smelled the odor of alcohol and decided to place client in handcuffs and escorted him to the security office while California Highway Patrol was contacted. Once CHP arrived, an investigation was conducted and the client was arrested for a suspected violation of Vehicle Code section 23152.

Many issues were raised. First, it was argued that because the Border Protection Officer was acting outside the scope of his authority (suspected DUI driver has nothing to do with contraband or immigration laws), he was deemed a citizen under California law. Penal Code section 837 outlines the requirements for a valid citizen’s arrest (versus Penal Code section 836 which discusses the threshold for an arrest by a peace officer). The more pragmatic question was whether the exclusionary rule to the Fourth Amendment applied when a citizen conducts an unlawful arrest. In this case, the court agreed that since the Officer was a government actor, the purpose of the exclusionary rule would be served and thus the motion to suppress pursuant to Penal Code section 1538.5 should be granted. The government actor finding was an important one since the Fourth Amendment does not apply to conduct by private citizens, but only to Government action. The case against my client was ultimately dismissed.

An interesting collateral question that was inconsequential to the criminal case is the potential civil liability faced by Customs and Border Protection. This is an issue that was anticipated by the Department of Homeland Security (which heads CBP). According to Judicial Watch, the Department of Homeland Security issued a directive (which was reported by someone from an Arizona office) to allow suspected drunk drivers to go on their way due to the potential liability. Of course, this issue raises a number of other legal, ethical and moral considerations. Nonetheless, there are fascinating legal issues that will require resolution for some clear direction on both sides of the fence.

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