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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Anonymous

Even if these were federal charges which they werent, they dont belong in a state court...... and no federal judges are gonna give a darn about personal stashes or a pipe....

Anonymous

"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." Do the dogs have records of being trained for concealed humans? Most drug dogs are not air scent dogs that detect humans, otherwise they would alert all the time. Did the passengers get out of the car when they searched it for other humans, otherwise the dog should be alerting on the drivers. All the floating skin cells of the occupants are still in that car, and that is what a dog hits on. Tractor trailers and vehicles that carry cargo though would be different, then a regular car that we all drive and climb all over.

Anonymous

Actually yes they CAN 'just ignore' possession of [illegal] drugs. Thru the years, they have vacillated on their stance: the levels of possession have varied (this is to keep the public off guard. when the public figures out that their tolerance is "x" then they change it.) They've also (more recently) gone to zero tolerance.

J. T.

Usery is akin to drug laws. Too much money changing hands corrupts all players.
How unfortunate that traffic fines are a legal stimulant.
Police serve whoever serves the biggest doughnut.
The root of all addiction is self gratification. Drugs, money, bullying power; all the same little blue pill.

William Fortune

Isn't Interstate 93 a Federal Highway ??? Therefore, under Federal Jurisdiction. And drugs are a Federal crime, more than and State crime. So those people should be charged in Federal Court. If you want all that "free" money that the Federal Gov. gives back to you, after you give it to them, you will have to suffer the consequences.

Anonymous

It isn't free money....it belonged to US citizens whose rights were violated by illegal searchs.

Anonymous

Legally no. Interstate highways are not a federal jurisdiction

Anonymous

The federal government and DOJ lose their integrity participating in federal crimes like this. The federal government has a duty to enforce federal "constitutional statutes".

Every constitutional right, including the 4th and 14th Amendments, is also defined and clarified in the Federal Code of laws. Constitutional statutes always supersede other federal statutes.

During the Jim Crow era the DOJ, under JFK and Johnson, actually enforced constitutional statutes against local and state officials breaking federal law.

Under the Bush DOJ, the federal government including the DOJ, participating in violating federal statutes - including felony violations - on torture techniques adopted from the Spanish Inquisition and warrantless spying. Some FBI officials actually threatened to arrest torturers and interrogators from other agencies.

Article VI of the United States also mandates - by law - that all federal officials and their contractors not only follow federal "constitutional statutes" but check & balance other government officials violating federal law.

Americans have lost total faith in the integrity of these federal institutions due to programs like this.

Anonymous

You'll recall President Eisenhower, a Republican, sent the US Army in to enforce the Supreme Court school desegregation finding against the National Guard in Selma, Alabama, wasn't it?

The Jim Crow era was actually post Civil War, not in the 1960s. The so-called poll tax was one of the measures used against minorities and poor citizens exercising their right to vote, etc. As I recall primarily Democrats put these into place....

Aren't you as afraid of social media companies getting your info and selling it as the government? Silly and shallow "algorithms" based on social media mining will soon replace FICO scores for credit worthiness.

Anonymous

The Founding Fathers created our Bill of Rights, the Fourteenth Amendment and Articles primarily to "RESTRAIN" government authority. To stop them in their tracks.

The Fourth Amendment's letter & spirit was designed as "chronological" - first an actual crime had to occur, then the police officer or official needed real evidence of that "past" crime. Maybe the most important part of the Fourth Amendment required that officer to risk "perjury" by filing an affidavit as to the evidence and witness testimony pointing to "probable cause". This provided a healthy risk of perjury and contempt of court to the "accusers" since the American system places the "burden" on the accusers - never the accused.

The real weak-link in the American Justice System is not the police officers or officials following orders, but the U.S. Supreme Court. In the late 1960's and 1970's, the court essentially amended the Fourth Amendment's spirit - without a constitutional amendment - in cases like "Terry v. Ohio". This created the dangerous Slippery Slope that was exploited by the Bush Administration and GOP controlled Congress after 9/11.

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