Border Search Nabs Medical Marijuana User

Last month, I posted on concerns from the ACLU that the Department of Homeland Security was coupling the terrorism threat with an old Supreme Court case to essentially nullify the Fourth Amendment for anyone driving on a public road within 100 miles of a U.S. border.

The Supreme Court's decision in U.S. v. Martinez-Fuerte allows for suspicionless but minimally invasive roadblock searches of motorists for the purpose of checking for illegal aliens.  The ACLU maintains that DHS is conducting far more thorough searches, stretching the ruling in that case well beyond what the Court intended.

Seattle's Post-Intelligencer ran a story this week that seems to confirm the ACLU's fears.  Earlier this year, border patrol agents cited 55-year-old Stephen Dixon for marijuana possession after searching his car at a checkpoint near the U.S.-Canadian border.  Dixon wasn't crossing the border, he just happens to live in the area where the feds set up one of their checkpoints (the article describes the checkpoint as "dozens" of miles from the border).

Dixon has a doctor's prescription to take medical marijuana for chronic pain associated with an amputated leg and an injured spine.  A drug dog tipped off the border agents to Dixon's couple of grams of marijuana.  That a drug dog was on the scene would at least seem to suggest that the border agents had more in mind than merely looking for illegal immigrants sneaking down from Canada.

The good news is that U.S. Attorney Jeff Sullivan has refused to pursue charges against Dixon and four others caught with small amounts of marijuana at the same checkpoint.  The bad news is, the border patrol seems intent on continuing to rely on the Supreme Court decision in Martinez-Fuerte to conduct illegal searches far away from the border.  DHS agents could also refer over to local prosecutors the minor drug cases the U.S. attorney doesn't want.

Comments

[SpongePaul]

What part of limited search do the agents not get, oh i know thier bosses reward them for unlawful searches with promotions and bonuses. On the positive side the US attor. declined to press charges. good thing, because that sort of abuse would be an end to the searches, well good for the agents, bad for the public and your rights!

[phalkor]

Obviously illegals smell like marijuana, otherwise they wouldn't have the drug dog.

Pssshhhh...everyone knows that.

[Episiarch]

It's good to know that DHS' priority is busting people for weed possession as opposed to catching terrorists. My guess is--shockingly--that there just aren't that many terrorists sneaking over the Canadian border. Which frees up time for destroying people's lives over plants.

[J sub D]

I, for one, am not worried. In just a couple months Barack Obama will take over the presidency, appoint a rational attorney general who considers the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, to be more important than racking up arrest stats against those who pose no threat to others.

What?

[Tulpa]

Exactly, Epi. If you've got a bunch of hammers laying around and not many nails to use them on, you can be forgiven for hammering screws and thumbtacks in just to put them to use.

[Burrow Owl]

Interesting videos from a guy who's been documenting checkpoints in Arizona:

http://www.youtube.com/user/CheckpointUSA

[SpongePaul]

The good thing about all the unlawful immigrants is that it is an anti-terror watch group in itself. The mexicans sneaking across hte borders even the drug runners would turn in or kill in the dessert any terroist suspect. as they know more than anyone, thyat if 1 terroist crosses the boarder unlawfully, then the hammer falls on all. Think about it, they are smarter than our goverment. they are our early warning system.

[SugarFree]

phalkor,

It's a known fact that everyone from Canada smells strongly of weed.

[Boston]

Uh what is this "fourth amendment" you speak of? something about honoring your mother?

[Orange Line Special]

Why is Radley Balko not a true libertarian?

For instance, the ACLU is collaborating with the Mexican government (some questions for them at the link; grab your video camera!)

Yet, as far as we know, Reason has not cashed in. Isn't that against libertarian principles? Shouldn't they get a cut? The MexicanGovernment has a lot of money, and they've spent a good part of it in the U.S. Yet, AFAIK, there's no Kochtopusa. ?Porque?

[Matthew Tievsky]

I don't like it either, but the drug search described in the article isn't illegal, Radley.

Cops have every right to keep a drug dog handy when they make a legal vehicle stop. If the dog then alerts, the entire car is open to a drug search.

DHS may be "exploiting" the Martinez-Fuerte decision, but they're doing so in a perfectly legal manner.

[Nate]

Drug dog alerts are bullshit as probable cause. What's to stop the cops from training the dogs to alert on (subtle) command? Now they can search anyone, anytime, anywhere and it's perfectly legal.

[Citizen Nothing]

"DHS may be "exploiting" the Martinez-Fuerte decision, but they're doing so in a perfectly legal manner."

Nothin' to see here, folks. Just keep on movin'.

[SpongePaul]

I would think that having a dog during the searches is an unlawful search. since the stated and approved search is for unlawful immigrants. doing a drug search would be bewyond the scope. The dog can be brought in if there is probable cause to use a dog. once an officer asked if he could look into my vechile during a stop, i said sure, if you get a warrant as you have no cause. he looked me over and said, slow it down have a nice day. i would have loved to see him waste the time. and i would have sat on the side of the road to prove my point if need be.

[zig zag man]

What worries me about all this "white gloving" the DHS is using to find dope fiends, is it showing the terrorists how to spoof the agents with any amount of drugs on a person, as a distraction, while allowing a more dangerous cargo to pass.

How much time is spent and assets allocated to searching and processing one person for a negligable amount of drugs? Is it a distraction from the real purpose of these checkpoints? IMHO, the answer is yes to both.

While the agents are all high fiving each other over a small amount of drugs, the real threat to security slips by, unnoticed and free to carry out his diabolical plan. It only takes one terrorist to ruin everyone's day, they better focus on what's important.

[TrickyVic]

""""Cops have every right to keep a drug dog handy when they make a legal vehicle stop. If the dog then alerts, the entire car is open to a drug search.

DHS may be "exploiting" the Martinez-Fuerte decision, but they're doing so in a perfectly legal manner.""""

Maybe. One could argue that it was really a drug checkpoint in disguise. If the dog can't smell someone's immigration status, which it can't, it had no valuable purpose at a checkpoint looking for illegals. There should be, not holding my breath, a fundemental difference in mission if a drug dog is posted on duty. This isn't a case where a cop with a K9 pulled someone over for speeding and the cop let the dog sniff the car. They had the drug dog at the checkpoint for one reason, drugs. Therefore it's fair game to argue it was a drug, not immigration checkpoint. Of course the feds could argure it was a duel purpose checkpoint. I'm not sure how that would fly with SCOTUS, if they agreed then every checkpoint can be muli-purpose and it's all fair game.

It's hard to tell which way SCOTUS would go with this.

[TrickyVic]

I meant to say "dual purpose checkpoint", even though duel might be a more fitting word these days.

[J sub D]

Drug dog alerts are bullshit as probable cause. What's to stop the cops from training the dogs to alert on (subtle) command? Now they can search anyone, anytime, anywhere and it's perfectly legal.

TLTG, but I've seen a report about a dog who alerted positive 100% of the time. Drugs were subsequently discovered in ~ 10% of the vehicles searched. I no longer believe drug dog alerts are anything more than a fig leaf to cover up unconstitutional searches.

And I'm right.

[TrickyVic]

That's why if you're challenging the stop in court, you subpoena the dog's training records.

Most drug dogs are good at what they do. Not all, and there is room for abuse.

[troy]

DHS agents could also refer over to local prosecutors the minor drug cases the U.S. attorney doesn't want.

This is interesting. I recently had an interview at the Office of the Cochise County Attorney, Arizona. (hey I need a job). During the interview, the jefe said that the feds weren't interested in cases under 500 lbs. Bisbee is a haven for artists, malcontents, and hippies. I can't see Cochise county getting all excited about prosecuting misdemeanor pot cases and carrying the feds water.

Thank you SCOTUS for completely fucking abdicating your role to stand up the executive branch. I wanna see a dog alert to Kennedy's car and watch his face get slammed into the hood of his car. Spineless pricks. ...er I mean Ivy league trained, spineless pricks.

[Alex]

The terrorists must be happy to be yanking our chain.

Good news- charges were dropped

Bad News- not because the Federal Government defers to the Citizens of Washington State to govern themselves.

BP says they will seek "alternative routes" to prosecute future cases.

Border Patrol will go after medical marijuana contrary to Washington State law.

[rxc]

If you own a boat in the US, you are liable to a full search at any time, no matter whether you are in NY harbor or in a mountain lake in Colorado. There is a Supreme Court decision (again involving those demon drugs) that says that because boats are mobile, and can be used in trade, there is NO 4th amendment right against searching them at any time, for any reason.

The 4th amendment means nothing in this country any more.

[matt mernagh]

wow! good call by the prosecutor not to pursue these charges. it's a weird scene when a medical marijuana person is charged. thankfully this one worked out wonderful. but what we're the roadblocks doing so far from the border?

[Matthew Tievsky]

@ SpongeBob, TrickyVic:

Whether or not the "immigration" stops are pretexts for drug searches is actually irrelevant, under well-established Fourth Amendment law. See Whren v. United States. All that matters is that police have wide latitude to make vehicle stops at the border. Legally speaking, it doesn't matter whether the real reason is to search for drugs. And once you're stopped, there's no Fourth Amendment impediment to having a drug dog around--the Supreme Court has already held that a drug dog sniff does not count as a "search," under the Fourth Amendment.

Again, I'm not approving this, I'm just saying it's clearly legal under Supreme Court case law.

[Alex]

This checkpoint took place nowhere near the US-Canada border.

The checkpoint was located in Jefferson County, WA: http://tinyurl.com/5p96l9

Local article: http://tinyurl.com/59hwdv

Alex
Port Hadlock, WA