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Gilles Bissonnette and Milli Zonarich: It’s time to end border patrol checkpoints in N.H.



For the Monitor
Monday, July 02, 2018

Over Father’s Day weekend, federal Customs and Border Protection agents conducted a border patrol checkpoint on Interstate 93 in Woodstock – a town in the White Mountains approximately 90 driving miles from the Canadian border. This border patrol checkpoint follows three earlier checkpoints conducted at this location in August 2017, in September 2017 and during Memorial Day weekend. CBP apparently plans to conduct four more checkpoints this year.

Troublingly, videos of the Father’s Day checkpoint also indicate that CBP misstates the law in an effort to coerce travelers to answer its questions.

During this Father’s Day checkpoint, as in previous checkpoints, CBP seized hundreds, if not thousands, of people (including Congresswoman Annie Kuster) without any suspicion that they had committed a crime. These checkpoints have all the earmarks of a police state. They fly in the face of what it means to live in a free society where you don’t have to answer to federal agents as you are going about your personal business.

Federal law provides CBP with the authority to conduct temporary and limited immigration checkpoints within 100 air miles of any land or coastal border. Since all of New Hampshire sits within 100 miles of either the Canadian border or the Atlantic Ocean, CBP asserts that it can set up immigration checkpoints across the entire state. This 100-mile border zone also captures two-thirds of all Americans.

However, CBP’s authority is not unlimited. Under a 1976 U.S. Supreme Court decision, temporary interior checkpoints within this 100-mile zone are legal only if they consist of a brief and limited inquiry into immigration status. Searches without consent are impermissible. Moreover, a checkpoint’s primary purpose cannot be to enforce drug laws or general law enforcement.

In practice, however, CBP agents often do not limit themselves to brief immigration inquiries and regularly conduct criminal investigations and illegal searches at checkpoints. We saw this illegal behavior most recently during the August 2017 checkpoint in Woodstock. As a New Hampshire court ruled following an ACLU-NH lawsuit, CBP violated the Fourth Amendment by using this checkpoint to investigate violations of state drug laws.

There are also indications that CBP agents exceeded the limits of their legal authority during the recent Father’s Day checkpoint. Videos from this weekend’s stops show that CBP agents instructed drivers that CBP would indefinitely detain them until they responded to CBP’s questions. This is a misrepresentation of the law designed to induce individuals to relinquish their right not to answer CBP’s questions.

Again, a person has a right to remain silent at these checkpoints. While CBP can pull over a traveler who declines to answer its questions, CBP under the law can only detain this traveler for a brief period in an effort to determine whether the person is here lawfully. If CBP cannot identify the person’s status during this brief period of time, CBP has to let the person go. No matter what CBP says, CBP cannot detain a traveler for a prolonged period of time, let alone indefinitely, if the traveler refuses to answer its questions. Silence alone is not enough to arrest or detain a person for a prolonged period.

CBP’s instructions to motorists flagrantly violate these legal principles. One CBP agent told a driver: “If you are not going to answer my questions I am going to have you . . . sit here until you are ready to answer my questions. . . . I am going to need you to answer my questions before you can go.”

Another driver was told by CBP: “You can answer me if you are a U.S. citizen, you can sit here for the rest of the day, or you can pull over there and talk to somebody. . . . If you refuse to answer, that’s on you. We’re going to have you pull over there and wait it out. . . . You are not free to go until you talk and answer my question.” CBP ultimately detained this man for over 30 minutes – a prolonged period of time that far exceeds the brief detention allowed under the law. In short, CBP effectively arrested this man simply for asserting his rights without any reasonable suspicion or probable cause that he had committed a crime.

This is not how the Constitution works. CBP’s spreading of misinformation about the law, combined with detaining people for a prolonged period who invoke their right to remain silent, constitutes a pattern of troubling behavior. CBP should stop this practice immediately.

These checkpoints must end. They are bad for New Hampshire and tourism. They frequently occur on high-travel summer weekends. This recent checkpoint coincided with Father’s Day and the conclusion of “Bike Week,” which welcomed thousands of visitors and added millions of dollars in revenue to the state. Tourism is a more than $5 billion industry in New Hampshire. Nothing quite says “welcome to New Hampshire” like sitting through backlogged traffic and being seized and questioned by federal agents.

Now is the time for our political leaders to stand up and demand an end to these checkpoints in New Hampshire. For example, Vermont’s political leaders applied political pressure to CBP that, thus far, has effectively ended interior checkpoints in Vermont. If it can happen in Vermont, it can happen in New Hampshire. Call your elected officials and demand action.

(Gilles Bissonnette is the legal director at the ACLU of New Hampshire. Milli Zonarich is a law student at UNH School of Law and a legal intern at the ACLU of New Hampshire.)