On Friday, the Associated Press reported that Customs and Border Protection last month issued a memo to agents telling them they couldn’t search buses along the border without the bus company’s consent, as required by the Constitution’s Fourth Amendment. The position—that the Fourth Amendment still applies in this country, even along the border—is made newsworthy by the fact that the country’s largest bus carrier, Greyhound, had maintained the opposite legal opinion for months, claiming it was powerless to stop CBP from boarding its fleet and searching its passengers along the Northern border, the Southern border, and both coastlines.
Greyhound now has to decide whether it wants to continue to willingly abet searches that passengers have compellingly alleged involved racial profiling and that state officials allege include other violations of state laws.
In August, when I first reported on Greyhound’s position, the company told me that to argue that the Fourth Amendment gave the bus company the right to prevent CBP from boarding its buses was “tendentious and false.” A spokesperson for FirstGroup, the company that owns Greyhound said this at the time:
We do not “consent” or “allow” to searches by CBP of passengers of any age; we do not have a say in the matter. … To suggest we have lawful choice in the matter is tendentious and false.
This was in line with a seven-page letter that Greyhound’s senior vice president for legal affairs, Tricia Martinez, sent Washington Attorney General Bob Ferguson last February claiming that “Greyhound cannot deny Customs and Border Protection (CBP) access to its buses.”
Now CBP says the company’s legal position—that the Fourth Amendment doesn’t apply on its buses and there’s nothing it can do to keep agents from searching its passengers—is false. According to a memo issued by outgoing Border Patrol Chief Carla Provost on Jan. 28: “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 continued, telling its agents they could not do anything that “would not cause a reasonable person to believe that he or she is unable to terminate the encounter with the agent.”
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.
It’s unclear what prompted the change from CBP, which has been subject to allegations of harassment and racial profiling for the searches on buses for years going back to the Obama administration. On Friday, a comedian whose description of his CBP search on a Greyhound bus went viral, Mohanad Elshieky, sued the federal government for false arrest.
The ACLU, which has pressed both Greyhound and CBP, celebrated Friday’s news as a win, but demanded that Greyhound now comport with the policies of other bus carriers that don’t allow CBP officials on buses without a warrant or probable cause.
“This change by CBP, the largest federal law enforcement agency in the nation, is a win for civil rights and civil liberties. You can’t tell someone’s immigration status based on how they look or sound. Attempting to do so leads to harmful racial profiling, wrongful detention, and the widespread fear and harassment of Black and brown passengers,” said Andrea Flores, deputy director of policy of the ACLU’s equality division. “There is still more work to be done: both to ensure CBP officers comply with the new policy, and for Greyhound to make clear that it does not consent to these searches. The onus must not fall on individual employees to stand up to law enforcement. The company as a whole has a responsibility to take a clear stance against the racial profiling and harassment of its customers—we will be watching to ensure it does so.”