Federal Immigration Officials Conspired with New Hampshire Police to Circumvent State Law

One weekend last August, a woman was heading home after dropping her husband off 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, New Hampshire. U.S. Customs and Border Protection had set up a temporary immigration checkpoint as part of the Trump administration’s nationwide crackdown on undocumented individuals. 

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 humans as part of its immigration function, though none of the agents found a concealed human 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 local 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 thirty others were charged with possession-amount drug offenses during the checkpoint conducted that summer weekend.

However, these searches violated the New Hampshire Constitution.  While the U.S. Constitution may allow warrantless and suspicionless dog-sniff searches, the 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 local 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 Interstate 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 suppress the drugs allegedly found during the checkpoint.

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 only authorized by the United States Supreme Court 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 travelling within its borders. So we sued.

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Dr. Timothy Leary

We would not have these types of jurisdiction and constutional conflicts if we got rid of state governments altogether. Furthermore the New England region is supposed to be liberal. When they do Nazi things like what's described in this article it makes you wonder about them.

Anonymous

How about we severely limit the size and scope of the fed gov.??

Anonymous

New Hampshire could hardly be called “liberal.” You really need to get out more.

Susan Thomasson

I see that you have managed to speak to us from beyond the grave Timothy! But from the context of your comment I think that you are actually an evil spirit pretending to channel our beloved Dr. Leary.

Knot Phooled

Dr. Tim, you don't fake liberal well at all. Nobody wants to get rid of state government. As you are totally not Dr. Joseph Goebbels under a different account you should team up with him, you seem to have a lot in common.

Jesse

Get tid of stste goverments ?? You are obvious a nut job, the powers of thr ststes. Help prevent the federal government from becoming a dictatorship. im sorry i had to have read anything from an author with misguided sence of grandeur.

Anonymous

Its not that simple. Federal Law enforcement agents can't just ignore crimes and the possession of any amount of illegal drugs is a federal crime. In addition, there are a lot of factors in play that the courts have to consider since the Federal Constitution is in play, too. 1) They have to decide if this State Law does override the Federal Law and that issue is far from settled when it comes to State Laws that legalize illegal drugs. 2) They have to decide if the CBP checkpoint was Constitutional. Since you say that the 9th circuit has "expressed suspicion" about these types of actions it doesn't sound like that issue is settled, either. 3) This also happened on a Federal Interstate which could play into many aspects of the case. 4) Also, if the feds think they can create a case that someone had, or was going to, transport the drugs across State lines some of your defendants may end up in Federal Court if the State drops the charges. I'm not sure they will thank you for that. All-in-all, I think its going to go to the mat. Should be interesting.

Anonymous

Except in the incident related in this piece, the woman wasn't charged by the border agents. She was charged by a state trooper. And since the CBP is claiming the entire state is within its jurisdiction, you're suggesting every driver is potentially a drug smuggling suspect. In any case, minus the legal mumbo jumbo, we all know what is going on here.

Anonymous

The 9th Circuit? Snort. The most overturned Circuit Court in the country.

Anonymous

Try again.

That distinction goes to the 6th Circuit, which serves Ohio, Michigan, Kentucky and Tennessee, with an 87 percent average between 2010-15. LIAR.

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