Right now, anyone – citizen or not – entering the Land of the FreeTM can be subject to warrantless probing of their electronics, which can be seized for further study in the lab for months if necessary. It’s just that citizens can’t be prevented from entering their home country: you can have your equipment taken and scanned, you can be questioned for hours, but you’re still ultimately allowed in. Foreigners, on the other hand, have no such protections: they can be searched, grilled, and sent back the way they came, if immigration officials deem you to be a problem.
The draft legislation – which is still in its early stages – is essentially designed to make it a lot tougher to stop and search citizens on the spot when they return to the US of A. However, the bill is weighed down with one major caveat. If officers have serious concerns about a traveller but have no time to get a warrant, they can seize the electronics and later apply for a warrant retroactively. If the warrant application fails, all the information harvested must be destroyed and may not be used in further prosecutions.
These CBP agents — like too many other law enforcement officers — had no idea how to react when their authority was challenged. They only saw one route to take: escalation.
Cooke knew the CBP agents needed something in the way of reasonable suspicion to continue to detain her. But they had nothing. The only thing offered in the way of explanation as they ordered her to return to her detained vehicle was that she appeared “nervous” during her prior interaction with the female CBP agent. This threadbare assertion of “reasonable suspicion” is law enforcement’s blank check — one it writes itself and cashes with impunity.
The CBP supervisor then stated he’d be bringing in a drug dog to search her vehicle — another violation of Cooke’s rights. The Supreme Court very recently ruled that law enforcement cannot unnecessarily prolong routine stops in order to perform additional searches unrelated to the stop’s objective.
If the purpose of CBP is to secure borders and regulate immigration, then this stop had very little to do with the agency’s objectives. Cooke is an American citizen and had not crossed a border. If the CBP’s objective is to do whatever it wants within x number of miles of the border, then it’s apparently free to perform suspicionless searches. In this case, the CBP was operating in drug enforcement mode, but even so, it still hadn’t offered anything more than Cooke’s alleged “nervousness” to justify the search and detainment. Additionally, the CBP’s decision to bring in a drug dog raised the bar for justification.