Last summer, US Customs and Border Patrol Agents set up an immigration checkpoint on I-93 in Woodstock, New Hampshire.
Agents detained undocumented immigrants, and they also turned over evidence of illegal drug possession by eighteen American citizens to the Woodstock Police Department and the State Police for prosecution at the state level.
Now, the ACLU has filed a motion to throw out that evidence, saying the way it was collected violated the state's constitution. (Read previous coverage from NHPR here.)
For more on this we turn to Buzz Scherr. He's a professor of law from UNH School of Law and co-counsel on the case.
Note: Transcript has been lightly edited for clarity
So these Border Patrol checkpoints are legal in New Hampshire legal under federal law, so why is it illegal to turn over information that they found in these stops to local law enforcement?
It's not illegal to turn it over to them. In these cases it's illegal because the Border Patrol violated the state constitution in the way they obtained the evidence- they didn't get prior approval from a judge for a drug checkpoint or a drug stop a drug roadblock. And they used drug-sniffing dogs to find the evidence that they turned over to the state police. Both of those failures mean that their conduct is unconstitutional under the state constitution but not the federal Constitution.
And the ACLU has argued in the past that these Border Patrol checkpoints in general violate the Fourth Amendment of the Federal Constitution the illegal search and seizure.
It's pretty well established at this point regardless of prior litigation that there is an immigration exception of sorts to the Fourth Amendment which says within a hundred miles of border with another country, the Border Patrol and federal authorities can set up these immigration checkpoints whose primary purpose is to find illegal immigrants or problems with immigration, which presumably they would not have needed drug sniffing dogs to find. Correct.
They claim, of course, that the drug sniffing dogs are also human sniffing dogs but there's nothing in any of these stops that we've seen that the dogs were able to smell out humans that were hiding in the car.
Is there precedent that you're aware of for a case like this?
It's starting to be litigated around the country. The fundamental issue is if the federal government is turning over evidence to state authorities that was obtained in violation of the state constitution but not in violation of the Federal Constitution, which applies? And our argument is in New Hampshire, you know if you're going to investigate crime in the fashion that was done in this case, you have to follow a New Hampshire state constitution.
And what is the motion you filed? What does it seek?
It seeks to prohibit the prosecution from using any evidence seized as a part of these illegal roadblocks in the prosecution of these eighteen people. If we win the motion, they will have no other evidence and the cases will be dismissed.
How would you imagine these checkpoints should go? Should they just be border patrol agents checking out car windows, "Let me see your I.D..."
You know, what's so interesting in this case is the chief of police of Woodstock who was there afterwards said to the press, "This was great - we got to go around the constitution because we had the feds do it - we wouldn't be able to do this by ourselves. But having that border patrol there allowed us to do it." That was his statement to the press. That's exactly the problem.
Do we know if that was the plan at the outset, or just something that he happened to notice as a good side benefit from all appearances - it was it was the plan all along. Is it illegal for the Woodstock Police and the New Hampshire State Police to have allegedly done work with the federal agents in this way to essentially and actively try to subvert the state constitution?
It depends on whether how significant - whether the judge decides how involved they were. You know it's one thing for the Border Patrol to do this with their drug sniffing dogs at an immigration check point and come up with the marijuana and then call the police police and say, "Hey, we just got a whole bunch of stuff that would be a harder case for us to say come on down. We just got all this stuff after the fact."
That would be a somewhat harder case for us. I still think we win. But that they were involved from the beginning - You know we have e-mails that basically say, "Hey we're going to do this checkpoint -come on we're going to bring our dogs. We want you to come with us."
