Originally published by The Huffington Post
Border Patrol officers routinely board buses without a warrant, without specific people they’re targeting, up to 100 miles from the border — and ask passengers for their papers. Greyhound, the nation’s largest intercity bus line, lets the Border Patrol do it and doesn’t plan to stop.
Greyhound officials say they’re just complying with the law. But 10 ACLU state affiliates argue Greyhound has the right — and the responsibility to its passengers — to demand a warrant for Border Patrol officers to board its buses.
They believe Greyhound could fight for its rights and win. But first they have to convince the company to try.
“The starting place is to not give your consent,” said Jordan Wells, an attorney for the New York Civil Liberties Union. “If Border Patrol then says, ‘You know what, we actually don’t even need their consent, we’re going to just do this stuff,’ that would violate the Constitution. But we the public don’t get to have that conversation about whether this is constitutional when Greyhound gives away the game by just saying, ‘We consent, so it’s OK.’”
The tactic of boarding buses to ask passengers for papers isn’t new to the Trump administration, but immigrant rights advocates say it’s happening more frequently as the president seeks to detain and deport more immigrants. People were outraged in January when a Greyhound passenger posted video of Border Patrol officers demanding proof of citizenship from every passenger on the bus. It’s not just buses: Border Patrol has also questioned passengers on Amtrak trains, and last year Customs and Border Protection agents demanded passengers on a flight show ID when leaving a domestic flight. This isn’t for buses, trains or flights coming into the U.S.; it happens when people are traveling from place to place inside the U.S.
Customs and Border Protection, which includes Border Patrol, says that’s all within its authority. A spokesperson cited a statute that says immigration officers may “board and search for aliens in any vessel” within a reasonable distance from the border and without a warrant. The CBP spokesperson declined to elaborate on whether the agency requires probable cause or suspicion to board buses and request documents from passengers.
Government regulations set that “reasonable distance” as up to 100 miles from the border, including both the land and coasts, giving CBP authority over an area that includes nine of the 10 largest metropolitan areas and about two-thirds of the entire U.S. population.
A Greyhound spokesperson sent a list of statutes and regulations for why it must allow Border Patrol onto buses any time officers ask.
“Greyhound is required to comply with the law,” the spokesperson said last month after the ACLU wrote to the company to ask it to stop allowing Border Patrol to board without a warrant. “We are aware that routine transportation checks not only affect our operations, but our customers’ travel experience and will continue to do everything legally possible to minimize any negative experiences.”
The question is whether the document checks violate the Fourth Amendment, which protects individuals from unreasonable searches and seizures. The ACLU argues that CBP violates individuals’ rights when it does things like keeping passengers of a plane from deboarding while it questions them or asking for papers of bus passengers far from the border based on thin grounds for suspicion or none at all.
Greyhound isn’t “following the law; they’re facilitating a violation of the law,” said Cecillia Wang, deputy legal director at the national ACLU.
Legal experts were divided on whether Greyhound’s rights are being violated, which will likely have to be answered in the courts or by Congress.
The Border Patrol does have considerable authority to question people within its parameters of a “reasonable” distance from the border, so long as it doesn’t do so in a discriminatory way. That includes asking bus passengers for papers, even if it’s also “definitely unsavory,” said Greg Doucette, a North Carolina-based criminal attorney.
Courts have approved of warrantless stops of cars by the Border Patrol. The Supreme Court ruled in the 1976 case U.S. vs. Martinez-Fuerte that checkpoints on roads a distance from the border, at which every car is stopped for brief questioning, were not a violation of the Fourth Amendment.
But there are some limits. The Supreme Court has ruled that the Fourth Amendment prohibits the Border Patrol from searching private vehicles away from the border without probable cause or consent.
However, Greyhound is consenting to the searches rather than trying to assert a Fourth Amendment challenge. Many legal experts said they were unsure whether the company could prevail if it did try to say no. Kristie De Peña, director of immigration at the libertarian Niskanen Center think tank, said that if bus drivers demanded a warrant, they’d “just make agents mad” and likely wouldn’t succeed in arguing their right to do so in court. If Greyhound wanted to fight the searches, it might be able to get a toehold by arguing that the Border Patrol was trying to enter its non-public areas of business on routes far from the border, but current law indicates they likely wouldn’t be successful, De Peña said.
Others believed Greyhound could win in court. Several cited the fact that buses, because they are for ticketed passengers only, are a non-public area of a business. Greyhound could also argue that the Border Patrol was hurting its business, said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, or MALDEF.
“If I was Greyhound, I would certainly understand that this is a threat to my business, and I would test this and I would say no and take it where it goes,” Saenz said.
Anil Kalhan, a professor at Drexel University’s Thomas R. Kline School of Law, likened the matter to when Apple resisted the FBI’s demands to gain access to a locked iPhone. Greyhound could similarly take a stand in defense of the privacy of its customers, he said, and could win in courts, although he cautioned that it wasn’t guaranteed.
Greyhound is trying to say “that they’re not making an affirmative choice here, that they’re agreeing to the CBP entering because they have to, and that’s not the case,” Kalhan said. “I think that is obscuring the fact that they’re making this choice.”