Seventeen people were arrested on immigration violations, and small amounts of marijuana, hash oil, and cannabis oil were seized at a checkpoint set up along Interstate 93 in New Hampshire over Memorial Day weekend, according to US Customs and Border Protection.
The three-day checkpoint, which began Sunday and continued until noon Tuesday, was the site of two controversial immigration checkpoints in 2017. A New Hampshire court recently ruled that drug evidence seized during those stops was unconstitutionally obtained because police dogs were used without a warrant or reasonable suspicion of criminal activity.
The ACLU of New Hampshire, which brought the suit against the state on behalf of 16 people arrested at one of last year’s checkpoints, said Border Patrol agents again used drug-sniffing dogs at this past weekend’s immigration checkpoint.
“We are investigating whether any state drug charges were brought” as a result, Gilles Bissonnette, legal director of the ACLU of New Hampshire, said in an e-mail.
Stephanie Malin, spokeswoman for Customs and Border Protection in New England, said dogs were used as they are “dual trained” to detect the smell of concealed people and drugs and “are a key asset at checkpoints to identify instances of human smuggling.”
She said this month’s court decision “did not alter our federal authority, which includes the use of canines at an immigration checkpoint.”
But unlike the 2017 checkpoints, Malin said local police were not involved in this weekend’s operation, which resulted in the arrest of 17 people in the country illegally. Those arrested were from 10 countries, including Ukraine, Uzbekistan, and Indonesia.
Border security is a top priority for the Trump administration, though most of the focus has gone to the southern border, which has become a national flashpoint as immigration hard-liners push for policy changes to tamp down on illegal border crossings.
There have been about 350,000 apprehensions or “inadmissible” border crossings in the first six months of the current fiscal year, while there were more than 480,000 in fiscal year 2017, according to federal data. Most of those encounters occurred along the southern border as there were just 3,027 apprehensions in 2017 by the Northern Border Sector, federal data show.
The immigration checkpoint over the holiday weekend was set up about 90 miles south of the Canadian border in a small town in the White Mountains.
While most border patrol work is done close to the border, federal law allows border checkpoints to be conducted within 100 miles of an international border.
“Checkpoint operations are a critical enforcement tool,” Robert Garcia, acting chief patrol agent of the area that includes parts of New Hampshire, New York, and Vermont, said in a statement. “Checkpoints help to deny access to major routes of egress away from the border and into our communities in the interior of the US.”
At a typical immigration checkpoint, a Border Patrol agent asks the vehicle’s occupants about their citizenship and place of birth, requests proof of immigration status, and questions how legal status was obtained.
If someone refuses to answer, he or she can be detained “for a reasonable amount of time” until the Border Patrol agent “can make a determination regarding the occupant’s immigration status,” the agency said.
None of these facts were in dispute in the lawsuit filed by the ACLU. The point of contention: the use of police search dogs and collaboration from local police.
Border Patrol agents used police dogs to monitor vehicles passing through the checkpoints. If the dog indicated that drugs might be present, the car would go through a “secondary search” and any illegal drugs found were turned over to Woodstock, N.H., police officers to bring state drug charges, according to court documents.
The defendants argued in court documents that primary reason for last year’s checkpoints was not border security but drug interdiction, noting that there were more arrests on drug charges than immigration violations. According to the documents, 44 people were arrested on drug charges and 25 for immigration violations.
Plymouth Circuit Court Judge Thomas A. Rappa agreed, writing in his May 1 ruling that “the court finds that while the stated purpose of the checkpoints in this matter was screening for immigration violations, the primary purpose of the action was detection and seizure of drugs.”
He also said that the state had “failed to prove” why it was necessary for a police dog to search each vehicle stopped during the checkpoints.
“The State argued that in today’s world of mobile terrorists the protection of our nation’s borders by way of border checkpoints searching for people entering the country illegally is a public interest that justifies the minimal intrusion involved in the initial stop at the checkpoint,” Rappa wrote. “I agree. The analysis then turns to the use of drug sniffing dogs.”
It is here, he said, “that the protections under the federal Constitution and those under the New Hampshire Constitution . . . seem to diverge.”
Had state or local police used dogs to search vehicles the way Border Patrol agents did, the evidence would be “inadmissible” because “there was no articulable reason” to search the cars before the dog alerted, the ruling said.Akilah Johnson can be reached at firstname.lastname@example.org. Follow her on Twitter @akjohnson1922.