It may well be that the boldest end run
To begin at the beginning, or perhaps before the beginning: U.S. Customs and Border Protection agents are authorized under federal law to set up checkpoints within 100 miles of any “external boundary” of the United States to prevent the illegal entry of aliens. Last August and September they erected temporary checkpoints on Interstate 93 South in Woodstock, N.H., which is about 90 miles from the Canadian border.
While cars were stopped as agents inquired about the immigration status of the occupants, drug-detection dogs were deployed to sniff around the vehicles. If the dogs signaled the presence of contraband, the cars were searched by federal agents, who, by prearrangement, turned over the fruits of these searches to Woodstock and state police. (That’s because the amounts of drugs the searches yielded were too small to meet the threshold for federal prosecution.) As a result, 44 people were charged in state courts, 42 of them for possession of small amounts of drugs, mostly marijuana, for personal consumption. None of those 42 faced a charge more serious than a class B misdemeanor, and none were charged with possession with intent to sell.
The American Civil Liberties Union of New Hampshire is representing 18 of the defendants and has filed in Plymouth District Court a motion to suppress the evidence, on the grounds that Article 19 of the state constitution affords greater search-and-seizure protections than the Fourth Amendment to the U.S. Constitution.
Article 19 provides that everyone has “a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.” Specifically, in a 1990 case, the New Hampshire Supreme Court ruled that, under Article 19, “authorities (must) be able to articulate a reasonable suspicion of criminal activity (in order) to employ a dog to sniff for contraband.”
The searches conducted at the I-93 checkpoints did not meet that standard, the ACLU contends, because the border patrol agents had neither a warrant nor reasonable suspicion. And evidence produced from searches conducted by federal agents cannot be used in state prosecutions if it was obtained in a way that violates the state constitution, the ACLU asserts. For its part, the prosecution argues that since such searches by drug-detection dogs are permitted under the Fourth Amendment, federal law is the controlling factor and the state prosecutions ought to be allowed to go forward.
Although we think the ACLU has the better of the argument here, this is a legal matter that the courts will have to sort out. But as a matter of public policy, the whole affair is troubling. Emails obtained by the ACLU indicate that Customs and Border Protection knew ahead of time that the checkpoints were likely to yield small amounts of drugs that wouldn’t qualify for federal prosecution and orchestrated the cooperation of local and state police in bringing state-level charges. Moreover, Woodstock Police Chief Ryan Oleson not only acknowledged but also enthusiastically embraced this circumvention of the state constitution, telling the Union Leader that, “These dogs were highly trained and impressive to watch,” and that border patrol agents have “a lot more leeway,” since he could not use a dog to search a car without being able to articulate a suspicion of drug possession.
Indeed, it appears that this whole operation was a fishing expedition of the kind that constitutional protections are specifically intended to prohibit. Given how far away from the border the checkpoints were erected and that drug sniffing dogs were present at the outset, it’s reasonable to suppose that drug interdiction was a primary, if not the primary, objective of the operation. Indeed, the ACLU says, of the 33 individuals detained at the checkpoints for alleged immigration violations, there is no indication that any crossed into the United States from Canada; many had entered the United States legally and had simply overstayed their visas.
Moreover, hundreds and perhaps thousands of people were stopped for no reason that furthered an important government purpose. This sort of governmental intrusion on individual privacy should set off warning bells for all who value liberty.
The Trump administration has been eager to compel the cooperation of state and local police across the country in its immigration crackdown, even though immigration enforcement is entirely a matter for federal authorities. It now appears from this incident that the federal government is also interested in enlisting local law enforcement in a renewed “war on drugs,” by pursuing small individual users through the state courts. New Hampshire should assert its independence by declining to do under the guise of federal authority that which the state constitution prohibits.