Editorial: Border Patrol’s Fishing Expedition

Tuesday, May 08, 2018

At a time in the national life when the rule of law seems to be increasingly supplanted by the rule of the lawless, Judge Thomas A. Rappa Jr. of New Hampshire’s 2nd Circuit Court in Plymouth is noteworthy for recognizing and invalidating a flagrant violation of constitutional rights orchestrated last summer by U.S. Customs and Border Protection and a police department in Grafton County.

Rappa ruled last week that drugs seized by Border Protection agents at a checkpoint erected on Interstate 93 South in the White Mountains last August and turned over to Woodstock, N.H., police as evidence for prosecution in state courts was gathered in violation of both the New Hampshire and U.S. constitutions and must be suppressed. If this ruling stands on appeal, it will represent an important check on government overreach.

The checkpoint was about 90 miles from the Canadian border, well within the 100 mile zone in which Border Protection can set up checkpoints for immigration enforcement purposes. While cars were stopped for agents to inquire about the occupants’ immigration status, drug-detection dogs were deployed to sniff the vehicles. If the dogs reacted positively, the cars were shunted off to a secondary processing area and searched.

As a result, 44 individuals were found to be in possession of drugs, virtually all of them small amounts of marijuana. Because the quantities did not meet the threshold for federal prosecution, Border Protection agents by prearrangement turned over the evidence to Woodstock police, who filed charges in state court.

The New Hampshire American Civil Liberties Union brought a challenge on behalf of 16 defendants, arguing that the New Hampshire Constitution and case law affords greater search-and-seizure protections than the Fourth Amendment of the U.S. Constitution, and that the searches must be evaluated under that higher standard.

Rappa agreed. Specifically, in New Hampshire, drug-sniffing dogs may be employed only when a warrant has been obtained or when law enforcement can articulate a reasonable suspicion of criminal activity, something not required under federal court rulings. In this case, all cars stopped at the checkpoint were subjected to a search without any reasonable suspicion. And since the evidence gathered would be inadmissible in state court if seized by a state or local police officer, Rappa concluded that it also should not be allowed when seized by federal agents and turned over to New Hampshire law enforcement officers for prosecution in state courts.

Moreover, Rappa found that while the checkpoint was purportedly established to check for immigration violations, its primary purpose was drug interdiction, as demonstrated by the prearrangement for federal agents to transfer evidence to Woodstock police, who were on the scene to receive it. As a result, the judge ruled that the seizures also violated the Fourth Amendment because a Border Patrol checkpoint is unconstitutional if its main purpose is to intercept drugs.

That this checkpoint was a fishing expedition from the outset is suggested by the fact that of the hundreds, perhaps thousands, of cars that went through it, it yielded 44 drug charges compared with only 25 immigration violations. Of the immigration violations, the ACLU notes that there was no evidence that any of those individuals had crossed the Canadian border; most had entered the United States legally and had overstayed their visas.

The process also produced many “non-productive alerts” by the dogs at the checkpoint, presumably the equivalent of false positives on tests. Thus many cars were searched without any contraband being detected, inconveniencing and perhaps terrifying many innocent individuals who were enjoying summer at the height of the tourist season in the White Mountains.

As Rappa also noted, the purpose of detecting undocumented immigrants could have been accomplished in most cases simply by visual inspection of the vehicle’s interior and questioning of the occupants. Indeed, a Border Protection agent testified that in his 17 years of service, he had never found anyone concealed in a motor vehicle.

Many Upper Valley residents will remember the aggravation of being repeatedly stopped and questioned at the semi-permanent checkpoint that Border Protection maintained in Hartford a number of years ago. That type of intrusion is justified under the rule of law only when it furthers an important government purpose, something clearly not the case with that checkpoint or the one on I-93 last summer. And when such intrusions into private life become regular and routine, democracy has much to fear.