CBP Memo Confirms Bus Drivers Have A Right To Deny Agents Permission To Search Buses And Passengers

from the Greyhound-rings-in-with-the-loudest-of-'no-comments' dept

Customs and Border Protection has confirmed that its agents can't legally do one of things they've been doing pretty regularly. Under Trump, the CBP has stepped up its sweeps of mass transportation, targeting buses operated by Greyhound and others.

These searches are happening as far inland as the law allows, up to 100 miles from any border (and, technically, any international airport). This isn't just happening near the southern border. Travelers in New York and Maine have reported being questioned and otherwise harassed by CBP agents, who have been given permission to search buses by drivers.

According to a memo obtained by the Associated Press, CBP does not actually have the legal authority to conduct sweeps of public transportation.

The memo obtained by the AP was dated Jan. 28, addressed to all chief patrol agents and signed by then-Border Patrol Chief Carla Provost just before she retired. It confirms the legal position that Greyhound’s critics have taken: that the Constitution’s Fourth Amendment prevents agents from boarding buses and questioning passengers without a warrant or the consent of the company. “When transportation checks occur on a bus at non-checkpoint locations, the agent must demonstrate that he or she gained access to the bus with the consent of the company’s owner or one of the company’s employees,” the memo states. An agent’s actions while on the bus “would not cause a reasonable person to believe that he or she is unable to terminate the encounter with the agent.”

Sadly, this means one person's consent trumps the rights of every person on the bus. And this memo conflicts with statements made both by the CBP and representatives for Greyhound, the latter of which have routinely insisted they have no right to deny CBP access to buses.

Border Patrol officials claim they always ask for consent from drivers. Even if this is true (and it probably isn't), there's little to indicate the actions taken by agents once on a bus would make it clear to passengers that any questioning or searches are optional.

Last year, Greyhound said it could not refuse entry to federal officers. Spokespeople went so far as to suggest people (like ACLU reps) saying it did have a choice were being "false and tendentious." Well, it's now clear who's going to be false and tendentious if bus drivers continue to let the CBP search their vehicles (and their vehicles' occupants). The company already seems to be stepping out on the "false" limb, insisting it has always been opposed to the sweeps it has never opposed:

Greyhound said that it appreciated the Border Patrol “clarifying” its policy. “We were unaware of USBP’s memo clarifying their practices regarding transportation and bus check operations,” the company said. “We are pleased there appears to be greater context about these practices as we have publicly stated we do not consent to these searches and maintain that position.”

To reverse this, Greyhound needs to make an affirmative statement that it categorically does not consent to bus searches and post signage that allows the company to speak for its drivers when drivers might feel pressured by federal agents to ignore company policy.

So far, Greyhound has done nothing to make it clear its anti-sweep. Jeremy Stahl of Slate tried to get a direct answer from the company and got some runaround and deflection instead.

When I asked Tricia Martinez on Friday if she maintained the legal position that “Greyhound cannot deny Customs and Border Protection (CBP) access to its buses,” she told me, “I’m maintaining the position that you need to call our communications specialist.” Greyhound’s communications specialist informed Slate that “[t]he company will not be providing any statements at this time.” Greyhound is being sued in California by a U.S. citizen for allegedly allowing CBP to racially profile its passengers.

Despite the use of Border Patrol and Customs and Border Protection officers, this tactic sometimes doesn't seem to have much to do with patrolling and protecting borders. The AP reports arrests in Spokane, Washington area (nearly 100 miles from the Canadian border) more than doubled from 2017 to 2019, despite the fact no Greyhound lines operating from that terminal cross international borders. A recent experience related by comedian Mohanad Elshieky detailed the CBP's boarding of his bus in Spokane -- one that culminated in agents unilaterally declaring he was in country illegally despite verifying both his work permit and license were valid.

Until Greyhound joins other bus lines in denouncing CBP sweeps and promising to protect their customers from suspicionless searches, the agency will continue to target these passengers. If you want your rights asserted on your behalf, you're better off with a competitor.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, buses, cbp

Companies: greyhound