When an immigration stop is not an immigration stop

You see the green and white vehicles of the Border Patrol cruising the roads of Monroe County and the adjacent counties. What you may not know is that the Border Patrol believes it has the authority to stop any vehicle for immigration purposes within 100 miles of any “external boundary” of the United States. External boundary means the south shore of Lake Ontario and the shore of the Atlantic Ocean.

One hundred miles comes from a regulation. The underlying statute is less specific. It authorizes the Border Patrol “to board and search for aliens any … vehicle  … for the purpose of patrolling the border to prevent the illegal entry of aliens” within a “reasonable distance” from any external boundary. A warrant is not necessary. 8 U.S.C. § 1357(a)(3).

If you map the 100 miles, you will see within the zone lies almost all of New York State and New England. Nationwide, 198 million persons live within the zone

The Border Patrol is very active within the corridor. At the Syracuse bus station, an agent has asked me about my citizenship. Twice I have been stopped at a checkpoint on the Northway driving from Plattsburgh to Albany. Nothing came of the encounters other than the inconvenience of being briefly detained and questioned.

Not so fortunate were 44 persons who were arrested at Border Patrol checkpoints in New Hampshire last August and September. The charge for most: possession of drugs, a violation under New Hampshire law. The manner of their arrest reveals the arrogance of the Border Patrol.

The Border Patrol set up the checkpoints on Interstate 93 in the town of Woodstock, 90 miles south of the Canadian border. It stopped all vehicles and asked the occupants about their citizenship. Outside, dogs sniffed the vehicles. If a dog detected an odor for which it was trained, the vehicle was directed to a side area for a full search. If the Border Patrol found drugs, it turned over the contraband to the local police who were present. The local police then charged the persons who possessed the drugs.

The Fourth Amendment prohibits “unreasonable searches and seizures.” A search “is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” City of Indianapolis v Edmond, 531 U.S. 32 (2000).

An exception to this rule are stops of vehicles “at a fixed checkpoint for brief questioning of its occupants” about their immigration status, “even though there is no reason to believe the particular vehicle contains illegal aliens.” United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The need to stop “the flow of illegal entrants from Mexico” on “important highways” “into the interior” of California justified the checkpoint and trumped the need for individualized suspicion. However, the government cannot use a checkpoint program “whose primary purpose (is) to detect evidence of ordinary wrongdoing.”

Eighteen of the 44 persons arrested, with the assistance of the ACLU, argue the Border Patrol did not heed Martinez-Fuerte and set up the checkpoints for the primary purpose of drug interdiction. State v. McCarthy, No. 469-2017-cr-01888 (2^nd Cir. N.H.)

The Border Patrol knew the local United States attorney would not prosecute any persons found possessing small amounts of drugs. Therefore, it reached out to the Woodstock Police Department and the New Hampshire State Police to see if they were interested in arresting those found possessing drugs.

The local police said yes, partly because New Hampshire law expressly forbids suspicionless searches of vehicles of the type permitted under federal law. Following the August checkpoint, the chief of the Woodstock Police Department boasted to the media the Border Patrol has “a lot more leeway.” He “could not use a dog to search a car unless he has a suspicion of drug possession.”

Other proof the tainted purpose for the stops was the presence of the drug dogs, who sniffed all vehicles, and, significantly, the fact the Border Patrol only detained 33 persons on immigration issues. According to the Supreme Court, the “effectiveness of (a checkpoint) program” informs the program’s purpose. Here 10 more persons were detained on drug charges than on immigration issues, suggesting the primary purpose was drug-related.

Unlike the highways of southern California, which enable aliens who sneak across the Mexican border to move quickly “into the interior,” there is no evidence people sneak across the Canadian border and drive south on Interstate 93. Of the 33 persons detained, all were from Central and South America and Bulgaria. Half had entered the country legally and then overstayed their visas.

New Hampshire argues it may use the drug evidence because the local police did not actually engage in the illegal stops. The Border Patrol did and it may turn over to the state the “fruit” of the stops on a “silver platter.”

If the roles were reversed, the federal government could not use the evidence. Similarly, a district attorney could not use the evidence in a New York prosecution. New Hampshire has not ruled on the issue.

In this case the facts show the Border Patrol and the local police worked closely in stopping and searching the vehicles. To the victim of a stop, it does not matter whether the official doing the stopping is wearing the green and white of the Border Patrol or the blue of the local police. The official is violating the rights of the victim. Lastly, allowing the local police to do with the assistance of the Border Patrol what the local police cannot do by itself circumvents clearly-defined state law.

The Border Patrol praised the local police, writing “(w) ithout you folks, we would have been hamstrung.” It will be interesting to see if the Border Patrol changes its checkpoint procedures if the state court tosses some or all of the charges against the 44 persons.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at 585-262-3400 or [email protected].