Where the Bill of Rights Is Suspended

Last week, as two Border Patrol officers waved car after car through the checkpoint just south of San Clemente, two young men--dark-haired, dark-skinned, wearing sneakers and baseball warm-up jackets--screeched their car over to the right shoulder of the highway and took off running up the scrub hills to the east.

They disappeared over the bluff just south of the checkpoint, with no one apparently in pursuit.

The officer who waved my car through didn’t so much as look up. I drove north, as I do every day, without incident.

Those two men and the untold number of others who run into the brush or across the highway risk injury or death in their effort to land a spot in this country. Scores of Mexicans died on the highway last year, and each death brought a flurry of questions about how the checkpoint is managed.

But interest passes, inevitably subsides, and life goes back to normal at the checkpoint, where 6,000 commuters an hour sometimes pass beneath the blinking red lights.

It’s precisely business as usual at the checkpoint, though, that can surprise someone from another part of the country, where checks for illegals are as unheard of as whole seasons without rain. I’m reminded every day that my easy passage is only because I’m Anglo, and because my car’s too small to hold a cache of aliens seeking U.S. refuge.

I figure that in the past 18 months since I moved to Southern California, I’ve been through the checkpoint better than 300 times. I’ve never been stopped, never questioned, never told to pull over.

Yet, it’s a rare day when there’s not at least a car or two by the side of the road. Border Patrol agents usually have the occupants by the side of their vehicle, sometimes they’re rifling through their trunks, other times checking the identifications of the driver and passengers.

And not once have I watched them searching anyone who was not Latino in appearance.

“I guess I’ve grown used to it,” said Richard C. Armendariz, a Santa Ana immigration lawyer. “But it’s strange. It’s one of those things that you’re forced to put up with if you’re Hispanic in this area.”

The Border Patrol says it pulls over more than just Latinos. Anyone can be stopped, and officers use their discretion in deciding who to question.

“There’s so much that an officer can look for,” said Ted Swofford, public information officer for the Border Patrol’s San Ysidro office. “I have arrested literally thousands of illegal aliens, and you notice things like the clothing, the way the hair is cut, the difference in the way they carry themselves.”

Cars can tell volumes too, Swofford said. Heavily laden vehicles give their drivers away by the way they ride, by how they stop.

But the checkpoint officer who makes the decision about whether to pull a driver over has to act quickly. The backup during the morning commute can often run 30 to 40 cars deep; to keep traffic moving, the officer must decide in an instant whether he wants to question a driver.

For those stopped, U.S. constitutional protections do not apply. Officers can ask questions, and drivers have no right to refuse to answer. Officers can demand to search the car, and drivers have no right to say no.

The Border Patrol needs no probable cause to justify such a stop, because the checkpoint is considered an extension of the border, not a full part of the United States, where constitutional protections would apply. Anyone can be stopped for any reason or for no reason at all.

“The checkpoint creates an exception to the idea that once you’re here, you’re free from this sort of thing,” said Charles Hammond Wheeler, directing attorney of the National Immigration Law Center. “It’s a zone where they can ask you anything, and you must answer or open up your trunk or whatever.”

For 75,000 illegal aliens, the stop at the checkpoint last year meant arrest and return to Mexico. For a few dozen others, attempts to avoid it meant death.

But for many people who rarely make the news, the brush with the checkpoint was less dramatic. Thousands of legal U.S. citizens--stopped because they looked Latino or because their cars looked suspicious--felt a moment of uncertainty, of fear, of having to prove that they deserved to be in the country where they pay taxes and hold jobs and have families.

That’s a hell of a thing to tack onto anyone’s commute.