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Surge in Unlawful Border Searches, ACLU Says

(CN) - While the U.S. Border Patrol boasts historic success in controlling illegal immigration into Arizona, citizens of rural areas along the border say unlawful searches are on the rise at internal checkpoints.

"Border residents regularly experience extended interrogation and detention not related to establishing citizenship, invasive searches, verbal harassment, and physical assault, among other abuses," ACLU Arizona attorney James Lyall wrote in an administrative complaint this week to the Department of Homeland Security.

Such altercations between rural residents of Southern Arizona and the Border Patrol come amid a steep drop in apprehensions of illegal migrants by agents assigned to the state. In 2012, Border Patrol apprehensions dropped to 124,631, the lowest level in 19 years and down some 82 percent since their highest point in 2000, the U.S. Customs and Border Protection says.

There are about 5,100 Border Patrol agents currently assigned to Arizona -- the most ever. This has led to "unprecedented border security between ports of entry and in remote regions of the Sonoran Desert," CPB says.

Lyall meanwhile documented a dozen individual altercations that occurred during the last months of 2013 at checkpoints near Arivaca and Tombstone, Ariz., and on the Tohono O'dham Nation southwest of Tucson.

He says the alleged security has come at the expense of rural residents' basic civil liberties.

"Residents of southern Arizona are increasingly outraged by Border Patrol checkpoints, and for good reason," Lyall wrote. "Forty years ago, the U.S. Supreme Court condoned immigration checkpoints under the assumption that the stops are 'brief,' and involve, at most, a 'limited inquiry into residence status' and a 'visual inspection' of the exterior of the vehicle."

Agents at the 72 permanent and tactical checkpoints in the southwest, most of them in rural, sparsely populated areas many miles north of the border, should look to the high court's 1976 ruling United States v. Martinez-Fuerte to define the limits of their power, according to Lyall's letter.

"In Martinez-Fuerte, the Supreme Court found immigration checkpoints to be permissible only insofar as they involve a 'brief detention of travelers during which (a)ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States," Lyall wrote.

Martinez-Fuerte further states that secondary inspections should be "made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy," and that most nearby residents should be simply "waved through."

Lyall insists, however, that this is not what is happening on the ground.

"In Arizona, most checkpoints are located in rural areas where local residents are often forced to undergo searches and detentions ranging far beyond 'limited' citizenship inquiries and not justified by 'heavy traffic,'" he wrote. "Border residents - including the many individuals who must pass through checkpoints daily to go to work, run errands, or take children to school-describe feelings of anxiety, fear, and anger after being interrogated, harassed, searched, and/or assaulted by federal agents. These individuals are not 'waved through the checkpoint without inquiry," as the Supreme Court envisioned. Each of the motorists described herein was referred for non-routine, unjustified detentions in a secondary inspection area on at least one occasion."

A secondary inspection - at least in the incidents Lyall outlined - often involve a full search of the resident's vehicle. Border Patrol officers often justifies such searches by walking a narcotics-sniffing dog around the vehicle and claiming that the animal detected the presence of contraband.

"A canine alert can provide agents with probable cause for a search only if the reliability of the dog and the handler are established," Lyall wrote. "There are ample grounds, however, to doubt the reliability of Border Patrol's use of service canines, including numerous studies and court decisions questioning the ability of canines to detect contraband accurately."

He added that "the frequency of false canine alerts at Border Patrol checkpoints indicates either that canines are frequently unreliable, or that agents are using canines fraudulently in order to obtain probable cause where it does not otherwise exist, or both. Whichever the case may be, the result is that border residents are regularly subject to unconstitutional searches and detentions."

This is the second complaint about Border Patrol abuses in Arizona that Lyall and the ACLU has submitted to the Department of Homeland Security in recent months. A letter in October cited several incidents of "unlawful roving patrols" and racial profiling.

Lyall said he is still waiting for a reply to that complaint, and he argued that DHS needs to reform its complaint process.

"Unfortunately, the lack of attention by DHS and its agencies to these complaints - involving civil rights abuses by the largest federal law enforcement agency in the nation - is not atypical," he wrote. "As should by now be clear, the entire DHS complaint process is in dire need of reform, and a broader commitment to Border Patrol oversight, accountability, and transparency is long overdue."

The ACLU of Arizona wants the agency to "conduct a prompt investigation of these individual allegations of abuse, along with any known checkpoint-related complaints from the past five years, as well as a "review of checkpoint policies and practices to determine whether Border Patrol is complying with its obligations under the U.S. Constitution and agency guidelines."

Meantime, the high number of Border Patrol agents stationed in Arizona isn't likely to change anytime soon. In a statement early last year, Jeffrey Self, commander of CBP's Joint Field Command in Tucson, promised to keep enforcement levels up.

"Although progress has been made, we will continue to build on those gains by sustaining enforcement efforts and ensuring all available capabilities are deployed effectively and efficiently to address threats," he said. "We will continue to use an integrated approach and maximize our resources to safeguard the Arizona/Mexico border."

Neither CBP national spokesman Michael Friel nor Arizona spokesman Victor Brabble has returned a request for comment on the incidents and issues Lyall raised in his letter.

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