They’re at it again. We have received numerous reports that CBP agents are ramping up bus raids in Maine. In these raids, armed CBP agents board the bus to question riders about their citizenship and travel plans—without any individualized suspicion and without a warrant. The ACLU believes these warrantless raids violate passengers’ constitutional rights.

The recent uptick in bus raids comes a little over a year after ACLU of Maine sued CBP seeking public records about its bus surveillance. This lawsuit resulted in a court order requiring CBP to produce internal training records about its authority to conduct the raids—information CBP had tried to keep secret.

For years, CBP has resisted the basic rule that the Fourth Amendment to the U.S. Constitution applies in all encounters with law enforcement. CBP agents have said they do not need a warrant to question people if they are within 100 miles of international borders or the coast, which includes all of Maine.

Yet, as revealed by the recently released materials, CBP’s own internal training materials reflect their understanding that the Fourth Amendment applies to bus raids, which they call “transportation checks.” In their internal training materials, CBP states that almost all “transportation checks” begin as “consensual encounters”—consistent with Fourth Amendment requirements for suspicionless stops by law enforcement.

Screenshot of Internal CBP document referencing Supreme Court case United States v. Drayton, saying that Transportation [c]hecks; [a]lmost always begin as consensual encounters.

What does it mean for an encounter with law enforcement to be “consensual”? Just what it sounds like. It means that you only have to stay and answer the officer’s questions or submit to a search if you consent. And that consent must be voluntary.

But CBP does not want people to know that most bus raids depend on people’s consent to answering their questions. To translate:  CBP doesn't want you to know that you don't have to answer. Worse, CBP tried to hide this fact from the public.

In response to our public records request, CBP redacted the rule about consent—which was spelled out in a Supreme Court case, United States v. Drayton.

Screenshot of Internal CBP document referencing Supreme Court case United States v. Drayton, saying the fourth amendment does not require officers to advise bus passengers followed by several redacted statements.

CBP claimed that revealing this rule about consent would disclose protected law enforcement information—even though the rule comes from a public Supreme Court case interpreting the U.S. Constitution. The court rejected CBP’s argument and ordered it to disclose the training materials without redactions. And when it did, the unredacted records revealed the following internal training materials:

Screenshot of an unredacted internal CBP document referencing Supreme Court case United States v. Drayton, that explains bus passengers have the right to refuse consent to search, but that officers do not have to inform them of this right.

That’s right: CBP's own training materials state, “A bus passenger has the right to refuse consent to search.”

The fact that CBP wants to keep that right a secret only shows the power of the people when you know your rights.

To be clear, in some cases, CBP may have a valid authority for questioning, so it is important to clearly ask the officer: “Am I free to leave?” The officer has a duty to answer that question honestly, and, if they are relying on consent, they must answer yes. You can also clearly state: “I do not consent to a search.”

When CBP relies on consent to perform a bus raid, passengers and bus companies have a choice. And one of those constitutionally protected choices is saying NO to CBP.

So just in case we weren't clear, we'll say this again: Concord Coach Lines has a duty to protect its passengers by also saying NO to CBP’s warrantless bus raids.

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