When Border Patrol Can Pull You Over

Patrolling the area closest to the U.S.-Mexico border may be what first comes to mind when you think of Border Patrol, but it’s only one piece of their enforcement efforts.

Agents also set up checkpoints where they can stop drivers, question a vehicle’s occupants about their citizenship or place of birth and request proof of immigration status.

Border Patrol agents can also station themselves along roadways or conduct what are called “roving patrols.” Think of roving patrols a bit like the patrols local law enforcement conducts – they’re on the lookout for people committing crimes or violating immigration law.

But if you’ve seen Border Patrol vehicles on the move, particularly on freeways or other areas not all that close to the border, you might have wondered when and why they can pull you over.

In this week’s San Diego Explained, NBC 7’s Monica Dean and I break down Border Patrol’s authority. But first, here are some common questions and answers about the agency’s role and how it differs from the police.

Where can Border Patrol patrol?

In general, the closer you are to the border, the more likely you are to see Border Patrol agents. But that doesn’t mean Border Patrol agents can only perform their duties in the immediate border area.

The general rule of thumb is that Border Patrol’s jurisdiction stretches 100 miles from the border, including coastlines. So that pretty well covers San Diego County, and a good portion of the state. And under certain conditions, they might go beyond that distance. Border Patrol agents are sworn federal agents capable of enforcing the law in all 50 states and all U.S. territories, said Border Patrol spokesman Mark Endicott. Their authority to question individuals, make arrests, administer oaths or take and consider evidence is not geographically restricted by law.

Does Border Patrol pull you over for speeding?

No, Border Patrol agents do not enforce motor vehicle laws. So they won’t stop you for speeding, a broken taillight or a cracked windshield, for example. That said, a car’s speed or condition can be part of what raises an agent’s suspicion.

So when can Border Patrol pull you over?

Border Patrol’s main mission is to enforce immigration law. Simply being in the United States without authorization is a civil violation – not a crime. It is a crime, however, to reenter the country without authorization after being deported.

Border Patrol agents stop drivers if they have “reasonable suspicion” – that is, more than a hunch – that a crime or immigration violation has been, or will be, committed. Reasonable suspicion requires a lower standard of evidence than the probable cause needed to arrest someone or obtain a search warrant.

Probable cause means there’s concrete evidence to indicate a crime has been committed. Reasonable suspicion is interpreted more broadly, to mean that based on the facts agents can observe, and the agents’ training and experience, it would be reasonable for them to assume a crime or immigration violation has happened or will occur.

What are some things that give agents reasonable suspicion?

This one’s a little tricky.

Endicott said that because all vehicle stops are unique, an agent’s reasonable suspicion cannot be generalized. And Border Patrol is usually pretty-tight lipped about the signs agents actually look for when deciding to stop vehicles, because to do so would divulge law enforcement techniques that may jeopardize the agency’s mission, the agency contends.

In general, though, an agent’s level of suspicion is based on facts that agents can observe. A car with a low-riding bumper might indicate the driver is smuggling drugs or people in the back, for example.

Agents can also run vehicle license plates through its database to see if they match records involved in criminal investigations. They may receive tips or consider intelligence the agency has gathered. All could potentially lead to reasonable suspicion.

Can Border Patrol pull you over based on race or the color of your skin?

Not exactly. Stopping drivers solely based on race or the color of their skin is racial profiling, and agents are prohibited from doing so. Border Patrol, however, is one of the few agencies that’s legally allowed to consider race or nationality when deciding to stop or question people, so long as agents see indications of criminal activity or immigration violations.

Is there any situation in which a Border Patrol agent can stop a vehicle without reasonable suspicion?

No. Border Patrol agents do not have carte blanche to randomly stop vehicles. They must base their actions on reasonable suspicion of criminal activity. If they can’t articulate their suspicions based on observable facts, there’s a chance the stop is unjustified. A person could file a complaint or sue.

Agents can use any number of factors to justify a traffic stop, however, so long as they can articulate how those factors came together to create reasonable suspicion. And that’s what concerns David Loy, legal director for the ACLU of San Diego and Imperial Counties.

“These roving stops have a very high potential for abuse. Border Patrol agents have a great deal of authority and discretion, and in practice it’s really easy for them to abuse the discretion by stopping a driver based on appearances alone, then finding facts to fit the arrest after the fact,” Loy said.

In 2015, the local ACLU of San Diego sued Customs and Border Patrol to obtain records detailing the agency’s roving patrol operations throughout Southern California. Documents show that agents conducting roving patrols between January 2011 and July 2014 stopped and detained people for sometimes ambiguous or murky reasons.

Some of those reasons include: drivers speeding or slowing abruptly, not looking at agents who pulled up alongside the car, sitting rigidly upright in seats, acting nervously in the presence of Border Patrol agents or simply driving toward Los Angeles.

All are reasons Border Patrol used to stop and detain drivers who were in the country illegally.

The point is, Border Patrol agents’ main mission is to enforce immigration law, and they’re given broad authority to do so. But the reasons for a stop should always be based on observable factors that indicate crimes have been, or will be, committed or that immigration law has been violated.