This is an opinion piece that originally ran in the Concord Monitor on Saturday, February 03, 2018 and was co-written by Gilles Bissonnette, ACLU-NH Legal Director and Christine Hilliard a ACLU-NH Legal Intern.
One weekend last August, a woman was heading home after dropping off her husband at work 90 miles away from the United States-Canada border. Then something unexpected happened. She, along with everyone else traveling south on New Hampshire’s Interstate 93 that day, was forced to stop in Woodstock. U.S. Customs and Border Protection had set up a temporary immigration checkpoint as part of the Trump administration’s nationwide crackdown on undocumented people.
While the woman waited her turn to pass through the checkpoint, several border patrol agents circled the lanes with dogs. CBP claims the canines were searching for concealed people as part of its immigration function, though none of the agents found a concealed person at a checkpoint. The dogs, however, were also trained to sniff for drugs.
One of these K9 agents pulled the woman over before she reached the checkpoint, saying that his dog had alerted him to something in her vehicle. The agent asked the woman what was in her car. The woman allegedly told him she had a pipe, but nothing else. The federal agent turned to a local state police officer and asked him, “Are you interested in just a pipe?” The officer said he’d take a look at it. The woman was then removed from her car while the car was searched again.
The state police charged the woman in state court with a violation of New Hampshire’s state drug laws for possessing the pipe, which allegedly contained burnt marijuana. But the woman wasn’t the only person charged that day. Nearly 30 others were charged with possession-amount drug offenses during the checkpoint conducted that summer weekend in the White Mountains.
However, these searches violated the New Hampshire Constitution. While the U.S. Constitution may allow warrantless and suspicionless dog-sniff searches, New Hampshire’s Constitution specifically forbids it. As a result, state prosecutors are bringing charges in state court based on evidence that was illegally seized under state law.
Indeed, the state police chief boasted to the local press that CBP has “a lot more leeway” to conduct searches, noting that he himself could not subject drivers to a dog sniff without reasonable suspicion of a crime. What happened on I-93 was nothing more than a conspiracy between federal and state law enforcement to get around the state constitution.
The ACLU of New Hampshire represents this woman and 15 others who were subjected to these indiscriminate and unconstitutional dog searches and has asked the state district court to suppressthe drugs allegedly found during the checkpoint. A hearing was held last month in the case.
The premise of this case is simple: New Hampshire state courts should be governed by the New Hampshire Constitution. The laws of New Hampshire and the principles of federalism demand it. These individuals were searched and seized by both state and federal officers, charged by New Hampshire law enforcement, are being prosecuted by the state of New Hampshire in a New Hampshire state court, and face a fine that would be paid to the state of New Hampshire. In these cases, the New Hampshire Constitution must apply not only because the cases are in state court, but because state officials colluded in these searches and seizures with the goal of making an end-run around the New Hampshire Constitution.
If CBP truly wishes to enforce New Hampshire drug laws in New Hampshire courts, then it must collect evidence in compliance with the New Hampshire Constitution.
The state argues that the New Hampshire Constitution does not apply because CBP performed the searches pursuant to their exclusive federal authority to control the border. Federal law provides CBP with the authority to conduct temporary and limited immigration checkpoints within 100 air miles of any land or coastal border. Since the entire state sits within 100 miles of the Canadian border and the Atlantic Ocean, CBP asserts that it can set up immigration checkpoints across the entire state of New Hampshire. Given this limited authority, the state argues in these cases that the searches done by federal CBP officials within 90 miles of the border are no different than searches done by CBP at the physical international border where federal authorities have exclusive jurisdiction.
This argument isn’t just extraordinary. It’s wrong.
Under this theory, the entire state of New Hampshire is effectively a border, thereby giving federal immigration officials the unfettered ability to engage in suspicionless searches. The entire state of New Hampshire and anyone within its boundaries would not only lose the rights afforded to them by the state’s founding charter but also their rights under the Fourth Amendment. Fortunately, no court has interpreted the law in this fashion.
In fact, interior checkpoints within the 100-mile zone are authorized by the United States Supreme Court only under limited circumstances, including “brief immigration inquiries.” Yet Border Patrol pretextually uses checkpoints to maximize drug seizures and arrests, including in states where marijuana is legal. The Ninth Circuit Court of Appeals has expressed suspicion about this bait-and-switch, allowing discovery on whether checkpoints flout their immigration purpose to become impermissible general crime-control checks. We are also suspicious of the central role played in drug detection by Border Patrol canines, which are not adequately certified or quality-controlled and lead to frequent false – or in CBP lingo “non-productive” – alerts leading to unjustified searches and detentions.
If CBP truly wishes to enforce New Hampshire drug laws in New Hampshire courts, then it must collect evidence in compliance with the New Hampshire Constitution. It’s that simple. Here, CBP is using its federal authority, in collaboration with the state police, to circumvent the independent protections New Hampshire has given to those traveling within its borders. So we sued.