New York Court Tells CBP Agent He's Not Allowed To Pretend He's A Traffic Cop

from the 'citizen's-arrest'-is-supposed-to-describe-the-person-making-the-arr dept

Wed, Dec 5th 2018 3:32pm — Tim Cushing

In a short decision, the Supreme Court of the State of New York reminds federal agents what they can and can't do while operating under the color of law. In this case (via The Newspaper) a CBP officer, who was supposed to be keeping an eye on the ultra-dangerous Canadians, decided he wanted to be a traffic cop instead.

Spotting a driver "engaging in dangerous maneuvers," the CBP agent (who is unnamed in the decision) decided to pursue the vehicle. He called the Buffalo (New York) Police Department to relay his observations. Deciding it would take too long for Buffalo PD officers to respond -- and supposedly concerned about the danger posed by the driver -- the CBP agent activated the lights on his vehicle and pulled the driver over.

The CBP agent did not approach the driver until a Buffalo police officer arrived -- not out of concern for the Constitution, but rather for his own personal safety. The CBP agent left after more police officers arrived. A gun was discovered during the stop and the driver was charged under New York law with illegal possession of a firearm.

The driver moved to suppress the evidence, arguing the stop itself was unlawful. The court found the CBP agent had the "powers of a peace officer," a fact that's relevant to its final determination. As such, the CBP agent can do certain things related to customs/border protection, but pulling drivers over for traffic violations isn't one of them. From the decision [PDF]:

In concluding that the agent unlawfully stopped the vehicle, the court determined that the agent had the powers of a peace officer, but that the traffic stop could not be justified on that basis because the agent was not acting pursuant to his special duties or within his geographical area of employment.

The state argued the CBP agent was not acting as a peace officer when he performed the stop. It claimed the agent was nothing more than a concerned citizen performing an ultra-rare "citizen's arrest." LOL, says the court. Even if the court had found that a CBP agent is not a peace officer, the agent's actions undercut any arguments construing this as a citizen's arrest.

Even assuming, arguendo, that the agent, as a marine interdiction agent with the U.S. Customs and Border Protection Air and Marine Operations and a deputized task force officer with the Niagara County Sheriff’s Office, is not a peace officer and does not possess the powers thereof [...] we conclude that the court properly determined that the agent did not effect a valid citizen’s arrest.

The agent, while contemporaneously reporting the incident to the police over the telephone and requesting the presence of a police unit, activated red and blue emergency lights in the grille of his truck and a light bar inside the windshield for the purpose of stopping the vehicle. A private person, however, is not authorized to display such emergency lights from his or her private vehicle (see Vehicle and Traffic Law § 375 [41]; People v Hesselink, 76 Misc 2d 418, 418-419 [Town of Brighton Just Ct 1973]). Moreover, a private person may not falsely express by words or actions that he or she is acting with approval or authority of a public agency or department with the intent to induce another to submit to such pretended official authority or to otherwise cause another to act in reliance upon that pretense (see Penal Law § 190.25 [3]; see generally People v LaFontaine, 235 AD2d 93, 106 [1st Dept 1997, Tom, J., dissenting], revd on other grounds 92 NY2d 470 [1998]).

Thus, the agent was not lawfully acting merely as a private person effectuating a citizen’s arrest when he activated emergency lights that were affixed to his truck by virtue of his position in law enforcement. Additionally, the agent was not acting merely as a private person when he approached the seized vehicle as backup in cooperation with the officer for safety purposes.

The state also tried to argue that even if the seizure was not lawful under New York law, it was not unconstitutional. The court says "you had us at 'illegal seizure.'"

Even if a violation of the citizen’s arrest statute is not necessarily a violation of a constitutional right, we conclude that adherence to the requirements of the statute implicates the constitutional right to be free from unreasonable searches and seizures…

And away goes the evidence and the conviction. The lesson is: if you're a federal agent charged with keeping an eye on the border, do that. If you feel the need to act like a concerned citizen, try to do it without turning on your emergency lights and pulling them over. Otherwise, all you've done is waste a bunch of people's time.

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, border patrol, buffalo, cbp, new york, traffic police

34 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Gary (profile), 5 Dec 2018 @ 3:49pm

Welcome to Buffalo!
Since the "border" extends 100 miles or so ICE has decided that it should rule over the city with an iron firt!
[ link to this | view in thread ]
Anonymous Coward, 5 Dec 2018 @ 3:56pm

Re: Welcome to Buffalo!
Well given the time of year, I will allow ICE to dominate Buffalo. Come spring though, we will see how long ICE stays around.
[ link to this | view in thread ]
Anonymous Coward, 5 Dec 2018 @ 4:43pm

the long arm of the three letter agency/federal cops
I always assumed that anyone with a uniform, badge, and sidearm, whether from a federal, state, or local agency, had basically full police powers. In the case of the Bundy Ranch standoff, for instance, the local sheriff was sympathetic to the Bundy protest, so the feds sent in armed BLM "policemen" to set up roadblocks, make arrests, taser people, and all the usual things that cops do. Did they suddenly become "private citizens" the instant they stepped off federal land and onto the street or private property?

With just about every federal agency these days these having its own armed police/security force, it can be confusing trying to figure out just what powers they have and exactly where they have them.

After the Bin Laden operation back in 2001, paranoid military police were frequently making arrests outside of their fenced-off bases of anyone deemed to be acting "suspicious" such as pulling over their car to snap a photo or whatever else.

The infamous Sierra Blanca "immigration" checkpoint on I-10 outside El Paso operates to a large degree as an excuse to search vehicles for illegal drugs, a job which is clearly outside the official scope of this agency. But it's been a cash cow for the virtually uninhabited Hudspeth County, whose police force, jail cells, and criminal court exist almost exclusively to assist ICE agents, in a mutually beneficial relationship (as neither has the authority to do the complete operation alone) as they shake down recreational drug users.
[ link to this | view in thread ]
stderric (profile), 5 Dec 2018 @ 4:51pm

I can't be alone here in kinda wishing the court had just said that "OK, have it your way, it was in fact a valid citizen's arrest"... and then had the CBP "citizen" charged with impersonating an officer?
[ link to this | view in thread ]
Anonymous Anonymous Coward (profile), 5 Dec 2018 @ 4:53pm

Re: the long arm of the three letter agency/federal cops
Wreckless driving isn't a Federal offense. Terrorism is. Drugs are. Even if it is only presumed terrorism, or a search for drugs. The case then needs to be made in a court. The CBP agent is a Federal officer, charged with enforcing Federal regulations.

Don't get me wrong, I think the whole within 100 miles of a border is not only stupid but unconstitutional. Feds doing traffic stops without probable cause is also unconstitutional. The problem is that the right cases haven't been brought before the right courts, yet.
[ link to this | view in thread ]
Anon, 5 Dec 2018 @ 7:46pm

But it doesn't matter
The guy's name has gone into a database, and for getting away with it" he will forever be subject to the third degree when re-entering the country. (I assume he's not an ultra-dangerous Canadian, because (a) he wouldn't have a gun and (b) he would have been sent out of the country and banned from re-entry, strictly on the CBP whims.)
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

John Smith, 5 Dec 2018 @ 9:18pm

Then we'll change the law to make it legal to pretend. That should satisfy this criminal-sympathetic mistake of a judge.

It's called having influence, something Masnick and his pirate crew wishes they had but can't work for it, so they have to resort to making look like an idiot.
[ link to this | view in thread ]
justok (profile), 5 Dec 2018 @ 9:36pm

should be
Shouldn't it be civilian arrest rather than citizen arrest?
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 1:23am

An alien with an illegal gun, no problemo?
"A gun was discovered during the stop and the driver was charged under New York law with illegal possession of a firearm."

Anyone concerned about this part?
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 4:24am

Re: should be
Makes me wonder... if you are a tourist visiting the country can you do a "citizen arrest"?
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 4:48am

Re:
horse with no name just hates it when due process is enforced.
[ link to this | view in thread ]
btr1701 (profile), 6 Dec 2018 @ 6:27am

Re: the long arm of the three letter agency/federal cops
> With just about every federal agency these days these
> having its own armed police/security force, it can be
> confusing trying to figure out just what powers they have
> and exactly where they have them.

Every state has its own laws regarding how much authority it grants federal agents to enforce state and local laws.

Some states give federal agents no police power at all. Some states give them full police power, which would have made the traffic stop in this case completely lawful. Other states give federal agents partial police power. For example, in California, federal agents can make arrests for violations of state law if it's a felony committed in their presence.

It might have been helpful if Cushing had provided this information in his article, but admitting that the scenario presented in the article would have been perfectly legal if it happened in many other states in the nation would have undercut his finger-wagging lecture to federal agents.

And really, if someone is weaving and lurching around in traffic, exhibiting signs of being drunk behind the wheel, isn't stopping him and getting him off the road and protecting the lives of other drivers more important than whether the case ultimately gets thrown out by a judge for lack of jurisdiction? Would Cushing rather the ICE agent just have shrugged his shoulders for lack of jurisdiction and just let the guy go on down the road and iron out a family of five or something?
[ link to this | view in thread ]
Kitsune 106, 6 Dec 2018 @ 6:34am

Re: Re: the long arm of the three letter agency/federal cops
But also to own logic, he is there to enforce border.

So he left his post to go after someone. Given all the terror and talk of the scary Muslims, we just showed that a distraction will make ICE officers leave post .

Now what if his leaving had let someone smuggle in something dangerous? Would the une be different?
[ link to this | view in thread ]
Oblate (profile), 6 Dec 2018 @ 6:50am

Re: Re: the long arm of the three letter agency/federal cops

Wreckless driving isn't a Federal offense.

You wouldn't know that from watching drivers around here...
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 7:01am

Re: An alien with an illegal gun, no problemo?

Anyone concerned about this part?

Yes. Still more concerned with the officers's inability to follow the law.

Also, article did not mention he is an alien, did you just make that up to make it sound more scary? Additionally, if he was an alien it's most likely he would be Canadian, which would actually make it less frightening.
[ link to this | view in thread ]
btr1701 (profile), 6 Dec 2018 @ 7:02am

Re: Re: Re: the long arm of the three letter agency/federal cops
> So he left his post to go after someone.

Where was that established? He could have been commuting to or from work or engaged in some other duty-- heading to the range, driving to a training seminar, etc.-- when he saw the guy weaving around in traffic.
[ link to this | view in thread ]
Anon, 6 Dec 2018 @ 7:35am

Re: Re: An alien with an illegal gun, no problemo?
If he was a Canadian who just crossed the border, he would very likely NOT have a gun. They are very hard to get in Canada (and so, expensive to acquire illegally). If he was the sort to have an illegal weapon, he would likely be flagged in the police database both sides have access to - why take it into the USA with the risk it would be found at the border coming or going?

More likely, this was some CBP agent driving down the freeway to or from work who got annoyed at some (American) idiot driving like an idiot - and hit the lights even though he was not allowed to do that for traffic offenses that were strictly not up to him to enforce. (Hence, he called in the real cops)

And in the USA we Canadians presume that Americans having a gun is pretty much routine; the restrictions about licensing only apply to stop minorities from carrying them, since the second amendment, like voting rights, don't apply unless you're white.
[ link to this | view in thread ]
crade (profile), 6 Dec 2018 @ 7:47am

I would have gone with the "I just put my lights on, not my fault he pulled over" defense :)
[ link to this | view in thread ]
jbakerjonathan, 6 Dec 2018 @ 8:00am

Re: should be
No. Citizen's arrest is the correct description. However, perhaps you were implying that the Federal officer is other than a civilian in order to express some dissatisfaction with the world today...
[ link to this | view in thread ]
jbakerjonathan, 6 Dec 2018 @ 8:02am

Re: An alien with an illegal gun, no problemo?
I'll raise my hand!
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 8:48am

Re: An alien with an illegal gun, no problemo?
..no problemo?

Not as much as a CBP agent who is ignorant about what his job entails.
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 8:55am

Re:
"I would have gone with the "I just put my lights on, not my fault he pulled over" defense"

So if he failed to pull over it wouldn't be fleeing and eluding then?
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 8:58am

Why is it that drivers that are not Insured. Maybe not even a Drivers license, etc or in this case have a gun he's not supposed to have always drive like an idiot to stand out and get pulled over? Wouldn't you be on your best driving behavior?
[ link to this | view in thread ]
norahc (profile), 6 Dec 2018 @ 9:03am

Re:
Is there dash cam video showing the driver driving like an idiot? Or are we just taking the CBP officer at his word?
[ link to this | view in thread ]
norahc (profile), 6 Dec 2018 @ 9:12am

Re: Re: Re: An alien with an illegal gun, no problemo?
Just because the gun was illegal in NY doesn't mean it would be illegal in Canada...or the rest of the US for that matter.
[ link to this | view in thread ]
Bruce C., 6 Dec 2018 @ 9:52am

Set pedantics to "stun"
To be fair, the statement is correct as written. "Wreckless" driving isn't an offense in any jurisdiction, federal, state or local. Of course that won't prevent certain cops from pulling you over for driving "too carefully".
[ link to this | view in thread ]
Dave., 6 Dec 2018 @ 12:10pm

Re:
Who's the idiot here?
[ link to this | view in thread ]
Anon, 6 Dec 2018 @ 12:32pm

Re: Re: Re: Re: An alien with an illegal gun, no problemo?
Oh yes. A gun illegal in New York would be illegal in Canada. To start with, laws on possessing and transporting firearms are strict. If the gun were loaded, if it did not have a trigger lock in place, or if it were a pistol, if it could contain more than 6 rounds in the magazine - it's illegal in Canada. You need a special permit to own a pistol in Canada, and you are restricted to carrying it directly to and from the gun club firing range. You don't get to take it on outings across the border without reams of paperwork.
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 2:30pm

Re: Re: Re: Re: Re: An alien with an illegal gun, no problemo?
As a whole, Canada certainly has stricter gun laws compared to the US, especially regarding handguns, but many exceptions exist.

There are many guns common in Canada which are illegal south of the border. One example would be Chinese-made rifles which were banned from importation in the early 1990s before really any made it into the country. Also, many individual US states, counties, and cities have additional gun bans, such as anti-"assault weapon" laws which ban many types of military-issue weapons that are legal in Canada, such as Soviet/Chinese SKS rifles.
[ link to this | view in thread ]
Anonymous Coward, 6 Dec 2018 @ 3:43pm

“so they have to resort to making look like an idiot.”

You do a fine job of that all by yourself.
[ link to this | view in thread ]
nasch (profile), 7 Dec 2018 @ 6:52am

Re: Re: the long arm of the three letter agency/federal cops

Would Cushing rather the ICE agent just have shrugged his shoulders for lack of jurisdiction and just let the guy go on down the road and iron out a family of five or something?

He should call it in, and perhaps follow the driver. He should not go beyond the bounds of his authority. Are you saying if it's important enough, it's OK for police to abuse their authority? And individual police officers get to decide what is and what is not important enough? Surely you see the problem there.
[ link to this | view in thread ]
Anonymous Coward, 7 Dec 2018 @ 8:33am

Re: Re: should be

if you are a tourist visiting the country can you do a "citizen arrest"?

Generally yes; some countries call it "arrest by any person" or similar. But be careful—you may only be authorized to arrest for things you personally witnessed, or offenses of a certain severity. Things like assault and robbery are usually covered, traffic offenses usually not.
[ link to this | view in thread ]
Anonymous Coward, 23 Jun 2019 @ 9:59am

Lol WRECKless.....more like Reckless. What a garbage article.
[ link to this | view in thread ]
GIANNI GIACCHI, 14 Feb 2020 @ 3:39pm

Today I was pulled over by a border patrol officer in New York City for what it said i passed him in a wrong matter.
As i was on Atlantic ave to get on the ramp for 278 bqe in front of there was a boarder patrol ford explorer USA Gov. license plate DHS 274135 turning left in front of me.
As we turning coming from the apposite lane converging in to the ramp 2 car stops the guy operating the vehicle in front got out and arguing with the driver from the following vehicles,
At the point traffic was stopped and i found my self blocking the upcoming lanes, i saw space to move in between the car fighting and the stopped in the middle of the upcoming traffic and i went around traffic to clear part of the uncoming traffic lane.
At the point the boarder patrol officer turn siren oon and pulled me over,talking to me like he was a cop and i did something wrong.
[ link to this | view in thread ]