I used to enjoy hiking in the White Mountains. Those days are over. The federal government decided that the chokepoint where I-93 crosses Franconia Notch is a good place to set up a roadblock. They had one last year, and another this year.
Ostensibly the roadblocks were to enforce immigration law. Not really. Agents’ dogs didn’t sniff out any illegal immigrants hiding in trunks. They are trained to find drugs.
By design, roadblocks find more drugs than immigration violations. One of last year’s roadblocks in New Hampshire was during a marijuana festival. As you might expect, there was a lot of marijuana passing through the roadblock. The feds turned over the evidence to local police who were helping with traffic.
The New Hampshire ACLU got involved and something unusual happened. A state judge threw out the evidence as the result of an illegal search, writing
This 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 the detection and seizure of drugs.
Search and seizure law is a strange beast. We’ve decided that we’re mostly going to tolerate violations of rights, but sometimes we’ll let a criminal go free to do penance. Police have learned how to hide violations of rights from scrutiny. An illegal search turns into a legal “anonymous tip.” A warrantless search is justified because somebody’s tire touched a white line. In this case, the prosecutor argued it was all OK because federal authorities, not town police, were responsible for any rights violations. Throwing out these drug cases would be letting the terrorists win. Really, he argued we needed roadblocks to prevent terrorism.
The federal government was back this year up to the same old tricks. This time police declined to help. Maybe they were afraid of being sued for violating state constitutional rights. Maybe the prosecutor told them not to waste their time when the cases wouldn’t hold up in court. Either way, if federal prosecutors want drug possession prosecuted they’ll have to do it themselves.
Why was the roadblock legal for the federal government but not the state government?
You may have heard of the automobile exception to the constitution, saying you give up many rights when you get into a car. Another exception is the border exception. You give up many rights when you travel near a border.
DHS claims the right to set up roadblocks anywhere within 100 miles of a border. In practice roadblocks are within 100 miles of a land border. Still, 100 miles is a long distance.
One hundred air miles from Canada reaches all the major peaks of New Hampshire and beyond almost to Concord. When the judge described the Franconia Notch roadblock as “90 miles” from the border that was road miles along an Interstate. The roadblock was only 70 miles from the border as the U.S. Attorney flies.
A woman I know was questioned about the white powder in her trunk when when she entered at a border crossing. The X-ray machine had spotted bags of flour. If she had been suspicious instead of the whitest middle aged Canadian you’ll ever meet they would have searched first and asked questions later.
Why don’t we have deep inspections of cars at internal checkpoints? As long as federal courts go along with pretext stops, the DHS budget is the only barrier.
I don’t like relying on government inefficiency to protect my rights. This is a problem that needs a legislative fix.
A bill to shrink the Constitution-free zone along the border has been filed. That’s a start. Another needed step is a change in policy, legislative or judicial, to limit these stops to immigration checks.
If immigration authorities are forbidden from taking any law enforcement action unrelated to checking immigration status, they may well lose interest in roadblocks. Then I can finally replace my faded “I climbed Mount Washington” t-shirt.
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