State-licensed New Mexico cannabis operators have been struggling over the past several weeks with what appears to be a concerted effort by U.S. Customs and Border Patrol (CBP) agents to seize legal marijuana as workers transport the drug through interior border checkpoints. This may be the first time some have ever heard of interior checkpoints, but constitutional activists have been fighting them for years.
Most people probably expect to see Border Patrol agents at the nation’s border, but are surprised to find them deep in the interior of the country. That’s because federal law allows the CBP to set up checkpoints within a “reasonable distance” from the U.S. border. And the feds have determined that 100 miles is a “reasonable distance.”
The U.S. Constitution protects citizens from unlawful search and seizure by government agencies. But this right doesn’t seem to apply at the checkpoints, where Border Patrol agents are allowed to randomly stop and search vehicles and question drivers with no evidence of a crime being committed.
According to a 2022 El Paso Times op-ed by Nia Rucker, the New Mexico regional manager of the American Civil Liberties Union and Shaw Drake, a Texas ACLU staff attorney and policy counsel, an ACLU lawsuit against CBP uncovered Border Patrol training materials that indicate agents are taught to circumvent constitutional protections.
The two wrote that Border Patrol agents are taught to be suspicious of dusty cars, drivers who have trouble hearing agents, drivers who try to get through the checkpoint too quickly or a number of other innocuous behaviors.
The advocacy group said that these practices not only hurt marijuana businesses, they also hurt medical cannabis patients who have to travel around the state to visit various medical specialists — which they are allowed to do under state law.
The ACLU has asked President Joe Biden to eliminate all permanent interior checkpoints or at least keep Border Patrol from setting up checkpoints more than 10 air miles from the border. It also requested that Border Patrol agents be forced to limit their questions and stops to those that address immigration concerns — supposedly the whole reason for CBP’s existence. The Biden administration clearly did not fulfill the request, since travelers are still being stopped at these checkpoints.
Meanwhile, according to a 2022 report from the U.S. Government Accountability Office, Border Patrol has not established clear roles and responsibilities for its management office, leading to inconsistencies in policy and enforcement at the various interior checkpoints around the country. This may go a long way in explaining why Border Patrol agents appear to be targeting state-licensed cannabis operators in New Mexico but not in other border states.
The report also found that agents inconsistently document data from stops that lead to drug busts and immigration arrests. And, despite the agency’s purported mission to stop illegal immigration and drug trafficking, the accountability office found that 91 percent of all drug busts at interior checkpoints involved only U.S. citizens.
Last year, ACLU affiliates in New Hampshire, Maine and Vermont won a lawsuit against CBP over checkpoint drug busts in Woodstock, NH, in which the organization accused the agency of overstepping its authority. The Department of Homeland Security (DHS), which oversees CBP, settled the suit and agreed to shut down the checkpoint until January 2025.
This issue hits close to home for New Mexicans. At least a dozen state-licensed cannabis operators have had products seized by the agency since February. A coalition of business leaders in the cannabis industry has been working behind the scenes to encourage CBP to change its policy, but nothing has materialized so far and the agency is sticking to its guns.
Matt Kennicott, CEO and co-founder of The Plug, a cannabis business consultancy company, and one of the representatives of the coalition, tells The Paper. that the group has not ruled out a lawsuit against the government.
“While we haven’t made a final decision, we have had discussions with several attorneys,” Kennicott says. “No options are off the table as the Border Patrol continues their campaign against legal cannabis.”
Kennicott says the coalition is going strong and it grows in size every week.
“It’s actually turned into a great support group for industry folks to bounce ideas off of each other,” he says.
In the meantime, the New Mexico ACLU has published a list of citizen rights to remember while moving through an interior border checkpoint. The group reminds New Mexicans that Border Patrol agents are only allowed to stop vehicles at checkpoints to verify the citizenship of the vehicle’s occupants and visually inspect the exterior of the vehicle.
Agents cannot conduct an interior search of a vehicle without the driver’s consent unless they have “probable cause” to believe that an immigration violation is taking place. This “probable cause” can be a legitimate alert from one of the agency’s drug-sniffing dogs.
Agents aren’t supposed to ask questions unrelated to verifying citizenship, but that is often not the case. They are also barred from making stops based solely on vehicle occupants’ races or ethnicities. The ACLU suggests filming interactions with agents as well as asking for their name and agent number if not waived through the checkpoint to maintain a visual record of any violations that may occur.