A response from FirstGroup to the ACLU's letter requesting to tell Greyhound to stop CBP from racially profiling and deporting riders.

ACLU response to the letter:

Sylvia Ruiz, deputy director of immigrant justice campaigns:

“We’re evaluating the claims FirstGroup made in its letter, and we’re preparing a formal response. In the meantime, we staunchly disagree with FirstGroup’s interpretation of Constitutional law in general and this evisceration of the Fourth Amendment in particular. By refusing to send a letter, issue a public statement, post signs on buses, or otherwise proactively deny CBP consent to board its buses without a warrant, Greyhound and FirstGroup have become complicit in the Trump Administration’s war against immigrants. CBP claims to have Greyhound’s consent, and Greyhound and FirstGroup’s silence speaks volumes. No more excuses—it’s time for Greyhound to stand up for its customers’ rights and the Constitution.” Sylvia Ruiz, deputy director immigrant justice campaigns, ACLU."

From David Loy, legal director of the ACLU of San Diego and Imperial Counties:

Although Almeida-Sanchez distinguished Border Patrol stops from administrative inspections of closely regulated businesses, that does not authorize Border Patrol to exploit the closely regulated exception for purposes of general law enforcement. Assuming interstate bus transport qualifies for the closely regulated industry exception, “the warrantless inspections must be necessary to further [the] regulatory scheme” in question, in this case motor vehicle safety, and may not be used for general law enforcement. New York v. Burger, 482 U.S. 691, 702 (1987). Burger upheld the administrative inspection of a vehicle junkyard under the closely regulated exception because there was “no reason to believe that the instant inspection was actually a ‘pretext’ for obtaining evidence of respondent's violation of the penal laws.” Id. at 716 n.27.

Courts have therefore “rejected the idea that an administrative inspection may be used to gather evidence as part of what is, in reality, a criminal investigation.” Bruce v. Beary, 498 F.3d 1232, 1239 (11th Cir. 2007); see also United States v. Knight, 306 F.3d 534, 536 (8th Cir. 2002) (suppressing firearm found in truck driver’s briefcase during otherwise authorized safety inspection because search of briefcase “exceeded the scope of a constitutionally permissible regulatory search”); United States v. Johnson, 994 F.2d 740, 742-43 (10th Cir. 1993) (holding “an administrative inspection may not be used as a pretext solely to gather evidence of criminal activity” and suppressing fruits of search of taxidermy shop because “the administrative search was employed solely as an instrument of criminal law enforcement”) (citation omitted).

By analogy, a Department of Transportation safety officer might not need probable cause or consent to inspect a bus for safety violations, but that does not give Border Patrol an unlimited right to board buses for the avowed purpose of general immigration enforcement under the pretext of vehicle safety inspections. Therefore, Almeida-Sanchez controls. Greyhound retains Fourth Amendment rights to refuse consent for Border Patrol to search its buses for purposes of general law enforcement & 8 U.S.C. § 1357 does not override Greyhound’s Fourth Amendment rights.