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Judge Hears Arguments on Evidence Obtained at I-93 Border Patrol Checkpoints

Todd Bookman/NHPR

A Plymouth District Court judge heard three hours of arguments on Thursday about whether evidence obtained by drug-sniffing dogs utilized by U.S. Border Patrol and Customs agents can be used to prosecute drug crimes in New Hampshire State Courts.

The legal dispute stems from multi-day checkpoints staged last summer on Interstate 93 in the town of Woodstock, New Hampshire, which is approximately 90 miles from the international border.

On Thursday, CBP agents testified how they staged a road block to ask vehicle occupants their immigration status, while other agents used trained canines on the exterior of the vehicles. The dogs are trained to detect both stowaway passengers, as well as narcotics.

During the multi-day checkpoint in August, agents detained 25 people on immigration violations. In conjunction with the Woodstock Police Department, there were more than 30 additional arrests made for drug charges after canines detected marijuana.

Credit Todd Bookman/NHPR
Defendants listen to oral arguments concerning evidence obtained by drug-sniffing dogs during Border Patrol checkpoints.

The legal question before Judge Thomas Rappa is if that evidence - the small amounts of pot - can be used against defendants in state court.

The ACLU of New Hampshire has filed motions on behalf of sixteen legal U.S. residents still facing drug charges, contending that under the state’s constitution, drug sniffing dogs can only be used when there is a warrant or reasonable suspicion.

Border Patrol agents, they say, had neither when they used the dogs on all passing cars. Therefore, they believe any evidence they found is inadmissible in these cases.

“This case is about the fundamental proposition that when you are in state court, and the government is seeking to enforce state drug laws, the state Constitution must apply,” said Gilles Bissonnette, an attorney for the ACLU. “It is our government’s--our state’s-- most sacred text, and here, it was completely discarded.”

State prosecutors take a very different view. Gabriel Nizetic told the judge that once drug-sniffing dogs alerted Border Patrol agents to possible narcotics, it established probable cause. That probable cause, he said, can be transferred from federal agents to local police.

Additionally, he said the Fourth Amendment of the U.S. Constitution permits Border Patrol agents to use dogs during immigration checkpoints.

“While it is true that the CBP must comply if they are performing a state function, they are not performing a state function. They are performing a federal function, and because they are performing a federal function, federal law controls in this arena,” he said.

All sixteen defendants were in the courtroom, but weren’t called to testify and have been asked by the ACLU not to comment to the media.

Mark Sisti, a longtime defense attorney in the state, along with Albert Scherr, a professor at the UNH School of Law, are also representing the defendants.

At the hearing’s conclusion, the judge didn’t issue an immediate ruling. The decision could be  appealed to a higher state court.

Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University.

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