TheAgitator.com
Border Search Nabs Medical Marijuana User
Wednesday, November 19th, 2008Last month, I posted on concerns from the ACLU that the Department of Homeland Security was coupling the terrorism threat with an old Supreme Court case to essentially nullify the Fourth Amendment for anyone driving on a public road within 200 100 miles of a U.S. border.
The Supreme Court’s decision in U.S. v. Martinez-Fuerte allows for suspicionless but minimally invasive roadblock searches of motorists for the purpose of checking for illegal aliens. The ACLU maintains that DHS is conducting far more thorough searches, stretching the ruling in that case well beyond what the Court intended.
Seattle’s Post-Intelligencer ran a story this week that seems to confirm the ACLU’s fears. Earlier this year, border patrol agents cited 55-year-old Stephen Dixon for marijuana possession after searching his car at a checkpoint near the U.S.-Canadian border. Dixon wasn’t crossing the border, he just happens to live in the area where the feds set up one of their checkpoints (the article describes the checkpoint as “dozens” of miles from the border).
Dixon has a doctor’s prescription to take medical marijuana for chronic pain associated with an amputated leg and an injured spine. A drug dog tipped off the border agents to Dixon’s couple of grams of marijuana. That a drug dog was on the scene would at least seem to suggest that the border agents had more in mind than merely looking for illegal immigrants sneaking down from Canada.
The good news is that U.S. Attorney Jeff Sullivan has refused to pursue charges against Dixon and four others caught with small amounts of marijuana at the same checkpoint. The bad news is, the border patrol seems intent on continuing to rely on the Supreme Court decision in Martinez-Fuerte to conduct illegal searches far away from the border. DHS agents could also refer over to local prosecutors the minor drug cases the U.S. attorney doesn’t want.
I really don’t like the Supreme Court decisions regarding roadblocks, but they remain the law of the land. How are roadblocks that are specifically allowed by a Supreme Court decision illegal?
Are you making the claim that searching for drugs at those checkpoints is an illegal search?
That drug dogs are usually “on hand” during DUI / DL & Registration / Vehicle Safety / Child Restraint checkpoints/roadblocks might also suggest that law enforcement has more in mind than the stated purpose.
Happens all the time.
I once came across a website that was dedicated to this farce.
Sad.
Nick, I think the key phrase is:
“The Supreme Court’s decision in U.S. v. Martinez-Fuerte allows for suspicionless but minimally invasive roadblock searches of motorists for the purpose of checking for illegal aliens.”
I’m no expert but I don’t think that drug dogs fit in with the intent.
Seems to me a minimally invasive search for the purpose of finding illegal aliens should consist of no more than having the car stop, looking inside and checking a few IDs if things look suspicious.
Your posts are even more depressing when they validate a concern previously raised in an earlier blog post…Nonetheless, thanks for highlighting it.
First, it is 100 miles from the border not 200 miles. Second, do BPAs have the statutory authority to enforce federal drug laws? Third, BPAs can only refer cases to state and local prosecutors if the state that they are located in recognizes them as state law enforcement agents, not all states do.
#1 A SCOTUS decision is the “law of the land” but it depends on the scope of the decision. If the holding is that “minimally invasive searches for illegal aliens” is OK, it does not follow that searching for drugs is allowed. I would have to read the case to comment further.
The 4th Amendment has been rendered void by the popular concept that, if you’re not guilty, you should have nothing to hide.
Johnny Clamboat:
Per Supreme Court decision Illinois v. Caballes, the use of drug sniffing dogs during a legitimate traffic stop does not violate the 4th amendment. Generally the courts seem to think that if someone is being stopped / searched for a legitimate reason anything the police find is fair game.
Altho there is some indication that if the purpose of a roadblock is obviously to detect normal criminal behavior, that’s not allowed. But a checkpoint where everyone is stopped to check that they are licensed drivers is fine. Or for DUI - b/c for some reason DUI isn’t an ordinary crime.
However, if the police have a checkpoint designated for an allowed use, and just happen to check for other things, well that’s fine. So basically all the police have to do is pay lip service to one of the road block exceptions and they’re in the clear.
Some interesting info here:
http://forensic-evidence.com/site/Police/drugroadblock.html
Again, I don’t like this caselaw, but until it’s overturned it remains the law of the land.
“I really don’t like the Supreme Court decisions regarding roadblocks, but they remain the law of the land.”
Supreme Court decisions aren’t the law of the land, and I’m amazed that the court succeeds in perpetuating the belief that they are.
BTW, is simple possession a federal crime?
I believe that the problem the US Supreme Court tried to address in U.S. v. Martinez-Fuerte was the intent behind granting the US Border Patrol the ability to establish roadblocks so far inside of the US borders and how that intent alters the authority granted to them in the use of these roadblocks.
Specifically, according the the attorney I talked with who represented Dixon, the court’s decision states that the US government “has never approved a checkpoint program who’s primary purpose was to detect evidence of ordinary criminal wrongdoing.”
Thus, while finding illegal immigrants or even drug traffic that has crossed the border may be appropriate, the US government never granted the border patrol the authority to search and detain people for suspicion of petty crimes, such as misdemeanor drug possession… especially when those searched and detained are US citizens who were traveling between points internal to the US and not traversing a border.
While the US Border Patrol may believe that simple possession is a federal offense, it is a “common criminal offense” which is specifically beyond the stated and established scope of their authority to pursue in the course of establishing a checkpoint a hundred miles away from any US border crossing point.
At least that the gist of what I understand from what I’ve been told.
This might be old news to all of you as I’m only 2 months into this blog but further to my first post:
One slimy feature of the Vehicle Safety and Child Restraint searches, er, Inspections, is that it allows the police unfettered access to enter your vehicle - without your consent or without probable cause - and then the general crime search can begin.
Another way the LEO’s try to establish probable cause to search you/your vehicle is by asking the driver (or passengers) where they are coming from and where they are going to. If the LEO’s are quick enough to think on their feet, they can establish that you came from/are going to, a known high crime/drug activity area
and commence a search.
Refuse to answer by politely stating that you wish to keep your private affairs private … and then hope that this will end the shakedown, provided that you have already passed the DUI dance on the side of the road, your DL/Registration search comes back negative and you don’t have a clearly visible bong/beer/gun wedged between the driver’s seat and the center console.
Good luck to all.
Apologies in advance, I have no HTML skills.
The idea that its “reasonable” for the boarder patrol search cars that aren’t crossing boarders, or were observed crossing boarders is ludicrous, on its face.
Also despite any SCOTUS decision or written laws the IV amendment is clear.
The first clause to amendment IV is “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” that is a stand alone clause.
“and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Is a separate clause only dealing with issuing of Warrants. Searches of people, houses, papers, and effects needs to pass the reasonable test, not probable cause. Random stops are never reasonable. Never. Although the last 50 years of “Jurisprudence” disagrees, they are all wrong. You can’t argue away the plain language of the 4th..
Also if you follow the logic of the 100 mile ring, wouldn’t it also include a 100 mile circle around any international airport, since they are boarder crossings? Chalk up every major city in the US as a 4th free zone.
Maybe the dogs are trained to smell drugs AND Canadians.
Packratt:
I like the legal theory that when the police are granted the ability to search or seize (detain) citizens without the normal need for probable cause ( or reasonable suspicion to detain )for a specific reason - ie for illegal immigrants at the border, that they would the search would be limited to just the specific cause that gave rise to the exception to normal 4th amendment dealings.
Unfortunately the courts disagree. Look into John Barlow’s case. Barlow, a founder of the EFF, had his luggage searched at a TSA checkpoint. TSA’s ability to search without cause is justified by the need of the Government to prevent dangerous objects from getting on planes. The TSA agent removed an aspirin bottle from his luggage, shook it, then opened it finding illegal drugs.
Barlow argued in court that the TSA exceeded the limitations of their search for weapons/bombs. The pill bottle was obviously too small to contain most weapons and if it might contain explosives shaking it and opening it are the two last things you would want to do. He lost soundly.
See the following for more details:
http://www.washingtonpost.com/wp-dyn/articles/A12524-2004Dec19.html
http://www.barlowfriendz.net/busted/
Generally, if the police are allowed to search something and they see something illegal, it’s fair game. Even if the police officer just they have cause to search someone, it’s upheld under the good faith exception.
Err - last line should read “Even if the police officer doesn’t have cause to search someone, it they thought they were allowed to search, it’s upheld under the good faith exception.
Well said. I think that nails it perfectly.
ShelbyC: Simple possession of weed is a felony under federal law, punishable by up to a year in prison and/or up to $1000 in fines.
Nick,
First, let me make it clear I’m not a lawyer, I’m basing what I’ve said from what the lawyer who represented Dixon, Paul Richmond, told me about the reason why the charges were dropped in regards to a story I wrote about the case on Sunday.
With that said, I believe it’s a matter of specified scope of authority. The Border Patrol are not the police, they are not the TSA, they are not the FBI. As with any branch of government they must have a LIMITED scope of authority that is mandated to them as part of the role they are to play within the law enforcement community. Just as any local police department has a limited jurisdiction the Border Patrol also has a limited jurisdiction and mandate.
For the border patrol, generally this means that for common crimes they must defer the case and suspects to local authorities who do have the jurisdiction in such cases, especially in regard to these special exception internal checkpoints that operate outside of their normal jurisdiction. In fact, normally, the border patrol in other states rely on local police to assist them with these roadblocks in a more multi-agency approach.
In Washington State the problem is that the public and local authorities are not happy with the way the border patrol has been overstepping it’s authority and thus refuse to assist with their checkpoints. So the BP attempted to bypass this by referring cases directly to the US Attorney’s office.
The US Attorney was considering the case, but Dixon’s lawyer sent a letter that convinced him that he would lose if it took it to trial based on the very same USSC ruling that granted the BP it’s very limited scope of authority to do these 100 mile internal checkpoints.
So now the BP chief is trying to think of who else he can pass these “common criminal” cases that he catches illegally in his checkpoints to since the local authorities refuse to help and the US Attorney won’t take them since he knows he’ll get embarrassed in court if he does.
It’s complex, and my analysis of the actualities should in no way be interpreted as support for the internal checkpoints which I personally think are a violation of the 4th amendment in total, not just in part as the USSC determined, again, based on the limited scope of authority the BP was given as a BORDER enforcement agency.
Hopefully that makes sense?
Actually, in U.S. v. Martinez-Fuerte, SCOTUS specifically stated that any search at an internal checkpoint must be based upon consent or probable cause. What the court allowed for was brief suspicionless seizures at permanent internal checkpoints near nexus points for border traffic for the sole purpose of asking immigration questions.
Here’s a few quotes from the case in question:
“It is agreed that checkpoint stops are ’seizures’ within the meaning of the Fourth Amendment.”
“The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.”
“Our prior cases have limited significantly the reach of this congressional authorization, requiring probable cause for any vehicle search in the interior and reasonable suspicion for inquiry stops by roving patrols. Our holding today, approving routine stops for brief questioning is confined to permanent checkpoints. We understand, of course, that neither longstanding congressional authorization nor widely prevailing practice justifies a constitutional violation”
“…We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search….And our holding today is limited to the type of stops described in this opinion. -[A]ny further detention…must be based on consent or probable cause.”
I’ve videotaped several on my encounters with agents and K-9’s at one of these internal checkpoints in Southern Arizona over the course of 2008. You can view the videos at:
http://www.youtube.com/Checkpointusa
Hey Ladies and Gents:
I just came across this in my pathetic excuse of a local paper.
It’s official: Big Brother has arrived.
http://www.dailybreeze.com/crimeandcourts/ci_10997054
We all smell like chocolate, you know.
Terry: Great principals and great vids on the CheckpointUSA.
Packratt:
I am also not a lawyer. But I am a big geek who wants to know exactly how much power the government has over me. I think you are mistaken on the concept of jurisdiction. Police officers have geographical jurisdiction limits, ( ie a CA cop can’t arrest people in MI ), but they do not, AFAIK, have subject matter jurisdiction limits. ( The one exception I can think of regarding this, is enforcing immigration laws is restricted to the feds ) Border Patrol agents ( like FBI, unlike TSA ) are sworn law enforcement officers. As such they are empowered to enforce all laws. A DEA agent could arrest someone for murder, or a firearms violation and a ATF agent could arrest someone for drugs.
There is subject matter jurisdiction in the US, but that’s for courts. A family or traffic court would lack subject matter jurisdiction of a murder case.
It’s pretty common for US attornys to not prosecute minor drug cases. The political leadership sacked a several us attorneys for refusing to prosecute small amounts ( 50 pounds ) of pot.
http://www.azstarnet.com/sn/byauthor/173437
And everything you said makes sense, it’s just a question of what the courts think. Do you happen to have links to anything that shows that federal LEO have limited subject matter jurisdiction or that any courts have accepted that common crimes must be overlooked by LEO at checkpoints?
It’s not that I agree with what the courts have ruled, but you’ve got to know how they think in order to beat them. I would very much like to see aggressive legal action to restore to us our freedoms. Look at the good work the Institute for Justice did with Heller. I’d love to see something similar to restore our 1st and 4th amendment rights that have been stripped from us.
Nick,
I really do think it’s a matter of the court’s interpretation of the special exception allotted to the BP in regards to these internal checkpoints. For whatever reason, irregardless as to whether or not we agree with it, the court decided in this case that the BP’s checkpoints must be specifically restricted in scope because normally the BP is only granted authority to detain persons suspected of committing crimes in the process of crossing the border.
As such, with the internal checkpoints, the BP can only look for crimes that would be associated with a border crossing violation, (i.e. illegal immigration or drug smuggling with intent to traffic) and not a “common crime” (i.e. DUI or shoplifting). After all, imagine the BP setting up DUI checkpoints in your police department’s jurisdiction or doing prostitution busts without the knowledge of your PD who happens to have undercovers doing the same thing and getting snared in that operation.
Sure, the FBI and local PDs step on each other in the course of such investigations, but generally they both have jurisdiction and a mandate to perform those activities in common geographical areas as an overlap, but the BP does not, they are expected to only police the border and regulate border traffic.
Personally, I think the idea of the BP given expanded range is stupid because it sets up conflicts like this. But that is, as I’m interpreting it, how the court is trying to reconcile the conflict, by limiting exactly what the BP can do and look for with these internal checkpoints.
Also, I think someone else here jokingly questioned when the BP would apply the 100 mile extension to international airports… I’ve read somewhere that they are already in the process of doing so.