Court Says Lawsuit Over CBP Searches Performed 90 Miles From The Border Can Proceed

Legal Issues

from the prepare-to-be-discovered,-CBP-officers! dept

An ongoing federal lawsuit is challenging the CBP’s decision to turn supposed border control efforts into easy drug busts for local cops.

A New Hampshire man is challenging the checkpoints set up by the CBP nearly 100 miles from any border in New Hampshire. The CBP apparently decided to spend a couple of years camped out on I-93 (from 2017 to 2019), 90 miles away from the nearest border.

The 90 mile marker is significant. Anything within 100 miles of a US border is still considered a “border” (even if it’s an international airport located further than 100 miles inland from any natural border). Inside this Constitutional gray area, rights are malleable. In many cases, they’re almost nonexistent. But the challenge raised here addresses what the CBP is doing and how it has nothing to do with any border protection or customs efforts.

Jesse Drewniak has sued the CBP, along with an agent and supervisor, for an apparently unlawful search that resulted in a small amount of hash oil being recovered from his car and, more significantly, some criminal charges from local prosecutors.

Drewniak’s case cites a New Hampshire court’s decision [PDF] that found in favor of another person caught in the CBP’s inland dragnet. As cars waited to be cleared by CBP officers, other officers ran dogs around their cars. Alerts resulted in searches. And these searches often resulted in drug cases handed over to local law enforcement.

As the New Hampshire court points out, this violates New Hampshire’s constitutional protections. And it has nothing to do with the CBP’s stated reasons for setting up a checkpoint 90 miles from the Canadian border. Here’s what happened at the inland checkpoint in 2018, which was apparently the CBP’s standard M.O. for the two years the checkpoint remained active.

The defendants’ vehicles were searched by the CBP at the secondary processing area resulting in discovery of illegal controlled substances. That contraband was then turned over to the WPD, which resulted in these prosecutions. None of these searches or seizures was sanctioned by a warrant. As a result of these searches, forty-four individuals, including the defendants in these cases, were charged with possession of small amounts of controlled substances – mostly marijuana.

But this was not why the checkpoint was set up. The CBP claimed it was to find individuals smuggling in Canadians (??!?!?).

The CBP agents testified that the primary purpose of the searches at the checkpoints was to discover human beings that had entered or remained in the United States illegally.

But that’s not what the CBP spent its time doing. And that’s not what it told local law enforcement when it first erected its checkpoint. Instead, it collaborated with law enforcement to set it up with easy drug busts and excuses for warrantless searches.

They were aware of the fact that the United States Attorney would not prosecute individuals for small amounts of drugs even before they set up the checkpoints. They then reached out to State law enforcement to ascertain whether they would prosecute the drug charges. From the facts of the instant cases it is patently clear that the primary purpose of WPD being present at the checkpoint in August to accept the illegal drugs confiscated by the CBP searches in order to prosecute the defendants on state drug charges. CPB Officer Labaff testified that the WPD, “was there to take the marijuana that was seized.” It also appears that there were times when the WPD actually seized the contraband from the defendant’s vehicle. Officer Labaff testified that if a local law enforcement officer was not able to take possession of the confiscated illegal drugs that evidence would have been transported to a federal processing center with no criminal charges filed. In addition to taking possession of the evidence the WPD performed other functions such as traffic control or supervision of the detainees. The Court finds that the State and federal authorities were absolutely working in collaboration with each other. The CBP agent in charge of the checkpoint operations, Paul F. Kuhn, wrote to the Woodstock Chief of Police, Ryan Oleson, “Without you folks we would have been hamstrung.”

As the court noted then, this is impermissible. Federal agencies aren’t supposed to abuse their constitutional exceptions to discover evidence local law enforcement wouldn’t be able to obtain without violating rights. The CBP has almost no restrictions when it comes to searches within the “Constitution-free” zone. However, any similar suspicionless searches by local law enforcement would result in Fourth Amendment violations. For the CBP to run drug dogs around cars (supposedly to search for smuggled individuals) and turn over any “alerts” to local cops is basically laundering rights violations to give locals “clean” searches and seizures. The court says this is the “reverse silver platter” (the opposite of the “silver platter” therory: i.e., someone agreeing to search every computer they repair and turn over anything suspicious to law enforcement so investigators can avoid warrant requirements by abusing the “private search” exception). In this case, the CBP used border search exceptions to discover drug violations that locals then acted on.

The CBP knew this was wrong. The Supreme Court itself said otherwise.

In City of Indianapolis v. Edmund, the United States Supreme Court argued that the primary purpose of a motor vehicle checkpoint cannot be the random detection of criminal activity such as drug detection.

That’s why CBP agents talked to local cops first and secured their cooperation. This greased the constitutional violation wheel. And things took off from there.

The New Hampshire court called the CBP out on its bullshit.

The testimony of the CBP officers revealed that there were numerous, “non-productive alerts,” by the dogs at the checkpoints which extended the duration of the stops for those individuals but resulted in no evidence of a crime being found. The primary purpose of detecting illegal aliens could have, in most cases, been accomplished by a mere visual inspection of the interior of the vehicle and a brief interrogation of its occupant(s ). If those measures then resulted in a reasonable articulable suspicion of criminal activity then the dog searches would have been warranted. In fact, the testimony of the CBP officers revealed that no “concealed humans” were found.

And any time the CBP claims it’s setting up an inland checkpoint to search for smuggled humans (especially near the northern border), everyone should know it’s bullshit.

CBP Officer Qualter testified that he has never located a “concealed human” in a motor vehicle in his seventeen years of service.

The court found in favor of the drug defendant, ruling the CBP’s use of drug dogs to find violations for the locals to prosecute was illegal under New Hampshire law, if not under the US Constitution itself. That ruling — handed down last August — has paid off. The current federal lawsuit moves forward. And the CBP is forbidden from engaging in this unconstitutional bullshit until the federal court has a chance to examine the merits of the case.

Officer Qualter wants the court to forbid discovery in this case, presumably because he’s failed to discover a single concealed human no matter how many unlawful checkpoints he’s worked at. His argument — what there is of it — says his attempt to raise a qualified immunity defense might be harmed if the plaintiff was able to discover further facts about his work with the CBP.

LOL. Maybe so. But the court points out [PDF] lots of precedent saying discovery is allowable in these cases. Qualified immunity might be a shield against accountability but it’s not an all-purpose tool that can be wielded to disrupt the normal progress of litigation. While it does offer a quick escape from some lawsuits, it’s not something that can be used to escape further examination of facts when warranted. Qualter’s motion has been denied, along with his presumption he’d be able to press the QI eject button prior to the plaintiff’s request for more (presumably damning) information on Qaulter’s CBP work. The order is denied

The CBP can continue to abuse its power to protect the border. But it shouldn’t be blowing tax dollars on helping local law enforcement dodge constitutional protections. That’s what it appears to have been doing in New Hampshire. And if it’s doing it there, it’s doing it elsewhere.

Filed Under: 100 miles, 4th amendment, border, cbp, checkpoints