Cannabis entrepreneurs in southern New Mexico are growing more concerned about the negative impact that interior U.S. Customs and Border Protection checkpoints will have on their businesses. Troubles with transporting product through these checkpoints for sale and testing are cutting southern New Mexican businesses off from the greater market. Now advocates are putting pressure on state leaders to negotiate a deal with federal authorities.

How Checkpoints Hurt Cannabis Companies

All major roadways in New Mexico headed north between Las Cruces and Albuquerque are currently blocked by Border Patrol interior checkpoints. The agents at these checkpoints have the authority to detain citizens for violating drug laws, including the federal ban on cannabis.

“Although legal for medical and/or recreational use in many states, marijuana is classified as a Schedule I controlled substance under federal law,” El Paso Border Patrol spokesperson Landon Hutchens told NM Political Report. “Therefore, U.S. Border Patrol agents will continue to take appropriate enforcement action against those who are encountered in possession of marijuana anywhere in the U.S.”

The agency’s position throws a serious monkey wrench into the state’s plans for equity, since the checkpoints effectively cut producers in southern New Mexico—including what are expected to be large markets in Las Cruces—out of the industry.

State law requires that producers have their products tested for consumer transparency but the only state-approved testing facilities are located north of the checkpoints. Albuquerque-based Rio Grande Analytics and Santa Fe-based Scepter Labs have both reportedly expressed a desire to open satellites in Las Cruces that can serve farmers in the south, but both have also voiced concerns about associated costs. Neither lab has made any specific plan announcements.

This means that producers south of the checkpoints—where many of the rural communities for which equal provisions were specifically included in the Cannabis Regulation Act (CRA) are located—will be unable to test their products as required by law without attempting to get through.

What’s An Interior Checkpoint

U.S. citizens are supposed to be protected by the Fourth Amendment from unwarranted search and seizure, so how are these checkpoints even allowed to operate in the first place?

The U.S. Department of Justice (DOJ) established a 100-mile border zone in 1953 that gave authority to Border Patrol agents to set up mobile checkpoints and question travelers as they pass. The purpose for the zone was to deter illegal immigration and smuggling.

The Immigration and Nationality Act gives Border Patrol agents the authority to board and search any railway car, aircraft, conveyance or vehicle within the border zone, according to law firm Immigration Attorneys LLP. These stops can involve unwarranted searches of vehicles using drug dogs and have sparked debates for decades over whether the agency’s priorities have been misplaced. Keep in mind that about two-thirds of the U.S. population lives within the border zone, not just at our southern border.

How Is This Legal?

The Fourth Amendment gives American citizens the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It’s the reason police officers are required to have probable cause to be suspicious that a person is committing a crime before they can search them. Before the CRA legalized marijuana in New Mexico, officers had to see some evidence that a person was in possession or under the influence of cannabis, like smelling the drug or observing signs of inebriation.

Interior border checkpoints appear to violate the amendment. All drivers passing through them are stopped and often subjected to visual searches and drug-sniffing dogs indiscriminately. Drivers can also be subject to vehicular searches without the necessity of reasonable suspicion. But in 1976, the Supreme Court ruled that interior checkpoints did not violate the Fourth Amendment because “the Fourth Amendment imposes no irreducible requirement of such suspicion.” Under the ruling, if drug-sniffing dogs that happen to be stationed at the checkpoints indicate that a car has contraband, that counts as reasonable cause.

The ruling was recently challenged. In 2020 American Civil Liberties Union (ACLU) chapters in New Hampshire, Maine and Vermont filed a lawsuit against the Border Patrol after a driver was cited for possessing cannabis at a checkpoint in Woodstock, NH. The civil rights groups alleged that the agency was more concerned with enforcing drug laws than stopping illegal immigration. “It is unconstitutional for Border Patrol to use interior checkpoints, nearly 100 miles from the border, as a ruse to unlawfully search and seize people for the purpose of general crime control,” said Legal Director for the ACLU of New Hampshire Gilles Bissonnette in a statement.

Last year the Border Patrol were denied a request to dismiss the case, but last month they made the request once again. A New Hampshire court overseeing a case related to the same checkpoint stop that spurred the current lawsuit ruled in 2018 that using drug-sniffing dogs at the checkpoint was unlawful without a warrant and suppressed all the evidence gathered from the dogs. According to the court, New Hampshire law specifically forbids unwarranted searches.

Answers For Producers

But New Mexico has no such law. The Border Patrol’s operations are in direct opposition to the state’s cannabis laws and lawmakers’ stated goal of building equity for rural communities. Now business owners and advocates are looking to legislators and the governor to find a solution.

Gov. Michelle Lujan Grisham’s office is reportedly in communication with the Department of Homeland Security—which oversees the Border Patrol—and is in discussions over how to transport state-legal cannabis through checkpoints for the purposes of testing. It’s unclear how those talks are going.

New Mexico lawmakers may have to take their cues from leaders in New Hampshire and draft legislation that will specifically bar the Border Patrol from using drug dogs indiscriminately and without a warrant at checkpoints.