Supreme Court

DHS Defends the Borders from Terrorist Pot


Federal vehicle stops near the Canadian border aimed at catching terrorists haven't caught a single Mohamed Atta, but they are catching lots of dopers :

Security stops of cars in rural New England near the US border with Canada, which became more frequent after the Sept. 11, 2001 terrorist attacks, have yet to snare a single terrorist—but they have contributed to a huge, unexpected increase in marijuana seizures, according to homeland security authorities.

The seizures, which soared from 419 pounds in 2000 to more than 3,000 pounds last year, have pleased the federal Department of Homeland Security but have angered Vermonters and civil libertarians, who say the more aggressive US Border Patrol checkpoints should not be used for everyday law enforcement.

Some Vermonters are complaining about the patrol's more aggressive tactics, especially the use of highway checkpoints as far as 100 miles from the border. They say the random checkpoints—which stop all passing cars inside the state, even if they're not headed to or from the border—can make driving within their state feel like being in Eastern Europe under communism.

One problem is that there's some considerable constitutional ambiguity here. The Supreme Court okayed roadblock sobriety checkpoints in the early 1990s under the dubious reasoning that though they do probably violate the Fourth Amendment, any constitutional concerns are trumped by the alarming number of "alcohol-related" traffic fatalities. The hyped-up, inflated number the Court cited at the time was around 25,000. It's now at about 17,000. But when you count only people killed by legally intoxicated drivers, as the L.A. Times did in a terrific 2002 report, the number is closer to 5,000.

Believe it or not, several years later in Indianapolis v. Edmond the Court actually ruled that random roadblocks were not constitutional when used to check motorists for possession of illicit drugs. The reasoning there was that a motorist's mere possession of illicit drugs has little bearing on highway safety, and thus doesn't justify the Fourth Amendment violation (interestingly, Clarence Thomas wrote a dissent in that case in which he called out the questionable distinction between drug possession and intoxication, and held open the possibility of revisiting the legality of DWI checkpoints).

To further complicate matters, the Court ruled 30 years ago that roadblocks are constitutional when they're set up near the border, and used to enforce immigration laws.

I expect we'll see more on this when someone challenges seat-belt checkpoints.

The question, then, is what happens when roadblocks are set up and operated under a justification that's constitutional (border control), but it's clear that they're being used almost exclusively in a way that's unconstitutional (drug searches). That seems to be what's happening in Vermont. Of course, most DWI checkpoints today do more to generate revenue than to actually catch inebriated motorists.

There's also the question of whether 100 miles qualifies as "near" the border.


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  1. Okay,
    So it’s not legal to stop a car just to search for drugs but it is legal to search a car for drugs based on a dog spotting it. Simple, just have a dog barking at every car on the road and the roadblock is legal.

  2. 100 miles? Great, next time I go to my grandma’s in North Dakota I could encounter a random “border” checkpoint.

  3. Hell, Massachusetts is 100 miles from the border.

  4. Allen

    We’ve had our eye on your grandma [aka “Al-Gramma”] for some time.

  5. “most DWI checkpoints today do more to generate revenue than to actually catch inebriated motorists.”

    Err…not exactly. I looked into this a little while ago, when I was determined to change careers to a freelance journalist[1].

    There have been several studies of the efficacy of several different kinds of DUI roadblocks. Their performance has much more to do with public awareness than arrest numbers, and their performance is best measured in the reduction of fatal accidents[2] where a driver is over 0.08[3] BAC (the legal limit in most states).

    A well-run DUI roadblock campaign appears to reduce fatal intoxicated accidents between 14-24%.

    Well-run means: run regularly (twice a month seems to be sufficient) and publicized such that people are aware of it.

    No such effect was observed by another popular method: putting 4-5 times as many police out on the street watching for drunk drivers a few times a month. That mostly increased arrest numbers.

    So that’s what we know about the effect of a DUI checkpoint at the moment. They can be effective without revenue-enhancing ticketing, and they are effective. At the very least, municipalities using them to give you a ticket parade need to get slapped down.

    What we don’t know is if it has to be a roadblock – would a row of squad cars with police watching for warning signs be enough? Effective roadblocks did not have to have any sort of sobriety test. Do we have to have police in a situation where they’re effectively performing a visual search of your car?

    Personally, I think that more could be done to avoid police-state tactics. Just because you’ve found something that works doesn’t make it right. The absence of studies on methods compared to roadblocks betrays a sense of “what have you got to hide?” from authorities. More can be done.

    As for using DUI roadblocks to effect a search of your car and serve up busted tail-light tickets, this certainly does happen. It also happens, however, that voters get really upset when they hear about this. I spoke with city council members in two small towns while developing my pitch, and they had previously axed a roadblock that had sprawled in such a way – they terminated the project after getting more than a few irate calls.

    Of course, this isn’t really a protection – I think the war on drugs has shown that you can keep doing wrong things if enough people believe it doesn’t affect them. The point is that voters do care about this issue.

    …and I believe that there is a case or two making its way now to the Supreme Court which is very concerned with that issue.

    [1] Even pitched the article to Reason. Of course, I ran out of operating money and got a nice, [very] full-time job so I never followed up like I should’ve. Ah well.

    [2] This includes single-car accidents, the most common form of intoxicated driver accident.

    [3] If I recall correctly, the studies I read used a more stringent requirement for BAC determined after death. I believe is was 0.12.

  6. I’ve been through these boarder patrol checkpoints in Vermont several times. DHS always stopped every car on the interstate, and started by asking citizenship. This seemed odd to me, since I’d never left the United States, and therefore I didn’t have any proof of citizenship on me. If an officer didn’t beleive that I was a US Citizen, how could I defend myself?

    I wrote to Homeland Security (this is back when Tom Ridge was running the place), and got back a one page fluff sheet that can be summaraized as “trust us.”

    I now bring my passport, and voter registration card when traveling to Maine.

  7. Oh yeah, I saw one of those checkpoints just south of Franconia Notch in New Hampshire during Laconia Bike Week.

    That was kinda weird.

  8. resist, obstruct and delay, two.
    Wait, so unless I’m confused, they arrested two people for not cooperating at the checkpoint…and I’m sure impounded their cars and fined them. Why are the police better than the criminals, again?

  9. Lemme fix that:

    “The seizures, which soared from 419 pounds in 2000 to more than 3,000 pounds last year, have pleased the federal Department of Homeland Security but have angered Vermonters, WHO REALY LIKE CANADIAN WEE, and civil libertarians, who say the more aggressive US Border Patrol checkpoints should not be used for everyday law enforcement.”

    There we go.

  10. 100 miles from the border includes large cities like Seattle, Detroit, Buffalo and Rochester.

    Does the 4th amendment no longer apply in those cities?

  11. In the Government’s defense, since there are so many more drug dealers and users than terrorist cells, wouldn’t almost any anti-terrorist measure end up netting other types of illegal behavior rather than terrorism? I’m not saying that the 100 mile checkpoint is great policy, but the mere fact that it accidentally nets dopers instead of terrorists only speaks to the prevalence of the former and the scarcity of the latter and doesn’t really show that the policy is good or bad.

  12. The problem with the 100 mile checkpoint is that it encompasses huge swaths of people just going about their everyday business without any intention of crossing the border. Half of vermont, new hampshire and maine is 100 miles from the border, most of western new york, more than half the population of michigan, toledo, at least half of Seattle metro and all of San Diego metro plus a fair bit of LA metro, Tucson and the southern bits of Phoenix, at least a few million people in Texas and NM border country, including all of El Paso.

    We’re talking on the order of 10% of US citizens who live and work within 100 miles of a land border with either Canada or Mexico, and they are now expected to either be white europeans (without long-hair or too many tattoos, presumably) or carry their papers at all times.

    That looks pretty dubious to me.

  13. They’re also doing this in Texas, on I-10. A Highway that is near the border in places, but runs east/west. We nearly got stopped on our way from Tucson to Ft. Stockton, but they were closing the checkpoint…my girlfriend said I was not allowed to speak if they stopped us.

  14. For what it’s worth, this is hardly new — though the scale might be stepped up. In the mid-’90s, there were periodic roadblocks on Interstate 25 between Las Cruces, N.M., and Albuquerque to check on …. well, whatever the Border Patrol wanted to check on. But white boys like me just got waved on.

  15. joe:

    “…but have angered Vermonters, WHO REALY LIKE CANADIAN WEE,”

    Well, whatever floats their boat, but they’re lucky to be in Vermont and not Georgia.

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