Border Patrol Checkpoints

In Arizona we have a number of Border Patrol Checkpoints.  The main one that our firm, with a number of experienced Arizona Criminal Defense Attorneys, is seeing with a large increase in drug busts is the fully functional Border Patrol Checkpoint located on the eastbound lane of I-8 at mile marker 78 just east of Yuma, Arizona.  The checkpoint is citing a large number of people for various drug crimes.  These drug crimes, including marijuana offenses, are felonies in Arizona, regardless of the amount.  The Checkpoint has a K-9 unit on site that will detect even the smallest amount, or even trace smells from the past presence of drugs, in a vehicle.

Our firm has seen a trend of officer conduct that is of concern at these checkpoints.  As most, if not all, of us know, we the Supreme Court granted certain rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).   Miranda states that Miranda warnings must be given as a prophylactic measure to ensure that statements are truly the product of free choice.  These Miranda warnings include the right to remain silent, that anything that you say can and will be used against you in a court of law, you have the right to consult with an attorney, and if you are unable to afford one that one will be appointed.  It may or may not be known that it is the State’s burden to show that the person understood their rights, and that they knowingly and intelligently waived that right.  The reason that the burden is on the state is because statements made are prima facie involuntary. Lastly, a person can not be penalized for exercising their rights, i.e. the right to remain silent.

Now the conduct  of a concern is this, during the investigatory process an officer will question a suspect without having given Miranda warnings.  During this interrogation, the suspect will make statements which tend to incriminate that person.  Once they have incriminated themselves, the officer then gives a Miranda warning and re-asks the questions that lead to the incriminating response.  Now courts have not been willing to adopt a “cat out of the bag” theory, namely that once a person has made an incriminating statement without the benefit of Miranda warnings that a later incriminating statement can never be admitted.  What most courts have said, although not all, and each state and federal district is different, is that if there has been actual coercion that so taints the investigatory process then a subsequent waiver may be ineffective.  When a statement is coerced, and a statement could be considered coerced due to this specific tactic to which I am speaking, then there must be some break in the chain between the tainted statement and the fully Mirandized statement.  Those things can include time between confessions, change in the place of the interrogation, and a change in the identity of the interrogators.

If you feel that you have been subjected to such a tactic, you should consult with a criminal defense attorney, or a criminal drug attorney.   Only an attorney licensed within the jurisdiction in which you are arrested can tell you whether your statements can or should be suppressed.  An attorney can not guarantee any result, and results in various jurisdictions can vary.  This blog is meant to be informative, and while I do encourage others to post and discuss this topic, I can not and will not respond to any questions as it can create a conflict of interest and possible ethical violations.  However, I do encourage you to consult with an attorney in the event you are charged with any crime, especially a drug crime.

 

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One Response to “Border Patrol Checkpoints”

  1. John Doe Says:

    This is true…the dogs can detect even the smallest amount…

    Like

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