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Federal court: Searches at the border must still be reasonable

| Oct 8, 2018 | Criminal Defense

In 2015, Abdisalam Wilwal, Sagal Abdigani, and their four young children were heading home after visiting Canadian relatives when they stopped at the Portal, North Dakota, border station. They are both U.S. citizens and married. Shortly after handing over their papers, they were confronted by armed and aggressive Customs and Border Protection officers. Mr. Wilwal was handcuffed in front of his frightened, crying children.

The CBP officers accused Mr. Wilwal of being a terrorist. Although he denied this, they handcuffed his hands behind his back and left him in a room for hours with no food or water. He eventually passed out and needed paramedics called.

Even though Mr. Wilwal asked for a lawyer, agents from the Department of Homeland Security questioned him and continued to hold him for almost 11 hours. Then, Mr. Wilwal was released with no explanation.

While Mr. Wilwal was in custody, the rest of the family was told they were now detainees. The children were extremely frightened. One of them even speculated that the agents were going to kill them.

Once they were released, the family learned the reason for their detention. Mr. Wilwal had somehow been placed on the terrorism watchlist. They filled out a DHS form to protest his placement on the list but never received a response. They still don’t know why he is on the list.

According to leaked documents obtained by the ACLU, “concrete facts are not necessary” before someone can be put on the terrorism watchlist. The rules are vague and the threshold of proof is very low. Uncorroborated stories and even information of doubtful reliability is sufficient. By June 2016, approximately 1 million people had been placed on the list.

When the ACLU sued on behalf of Wilwal-Abdigani family, the government simply moved to dismiss the lawsuit as having no legitimate claim. It claimed in part that the Wilwal-Abdiganis had no right to claim they had been detained unreasonably because the events had taken place on the border.

CBP officers routinely tell people that they have no rights at the border or in the border zone, which extends 100 miles from the border in all directions and encompasses much of Wisconsin. They’re wrong.

The government does have significant leeway in routine searches and seizures when protecting the border. However, the federal judge in this lawsuit ruled that non-routine searches, such as those that are highly intrusive or destructive, must be justified by reasonable suspicion that a crime has been committed or is in progress. Therefore, he refused to dismiss the lawsuit.

The Constitution doesn’t evaporate in the border zone. To be constitutional, searches must still be reasonable. The Wilwal-Abdiganis’ case will move forward.

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