Ruling Unlikely to Change Checkpoint Policy

A federal appellate court ruling affirming a U.S. Border Patrol policy of briefly checking suspicious-looking travelers for drugs at immigration checkpoints is not likely to lead to changes at the busy freeway stops, agency officials and lawyers said Thursday.

The decision, issued Wednesday, marked the first court approval of limited drug searches at the checkpoints, heartening prosecutors who said it will help the so-called war on drugs.

However, the ACLU also called the ruling a victory, saying the three-judge panel did not give Border Patrol agents wholesale authority to stop drivers to search for drugs.

The ruling, from the U.S. 9th Circuit Court of Appeals, upholds the right of Border Patrol agents at the Interstate 5 San Clemente and Interstate 15 Temecula checkpoints to check for drugs, provided the check is quick.

Border Patrol spokesman Ted Swofford said the agency plans to keep the stops quick, just as it has been doing.

“I know that we won’t be doing anything different in the immediate future,” Swofford said. “It was more of a court affirmation of what we have been doing, so I don’t anticipate any changes.”

A huge number of vehicles crawls through the checkpoints each year. In 1989, the last year for which the Border Patrol has figures, the California Department of Transportation counted 110,000 cars and trucks passing through the San Clemente checkpoint each day, Swofford said.

More than 75,000 undocumented migrants were detained in 1990 at the San Clemente checkpoint alone, Swofford said--more than the combined total from the 20 border checkpoints in Texas.

For the past year, federal prosecutors in San Diego have sought to give the Border Patrol broader authority at the checkpoints, hoping to persuade the courts to grant a constitutional blessing for routine searches for drugs as well as for immigrants.

Over the past few years, agents have made significant cocaine busts at the two stops, Assistant U.S. Atty. Pat O’Toole said.

“We’re not talking about ounces or grams coming through the checkpoint,” O’Toole said. “We’re talking about hundreds or thousands of pounds going through there, because (the stops are) the main conduit from South America through Mexico through San Diego to Los Angeles.”

Last May, however, former San Diego U.S. District Judge J. Lawrence Irving rejected the government’s proposal for dual use of the checkpoints, saying it would “eviscerate” the Fourth Amendment, which bars searches and seizures that are unreasonable.

In a second case, U.S. District Judge Judith N. Keep agreed last July with Irving. Prosecutors appealed that case, and, in Wednesday’s ruling, the 9th Circuit court reversed Keep.

The case in question involves the April 29, 1990, arrest of Mark R. Taylor, 24, of Carlsbad at the San Clemente checkpoint.

He was stopped at the primary inspection area, then sent to a secondary inspection site because authorities thought Taylor, the driver of the car, and two passengers were acting nervous.

During a three-minute search, Border Patrol agents found no illegal aliens in the trunk. But, according to 9th Circuit Judge Alfred T. Goodwin, Taylor became “increasingly nervous and uneasy.”

An agent called for a drug-sniffing dog, who alerted agents to search further. They found about 2 pounds of methamphetamine and two handguns, Goodwin said.

Common sense says that allowing a limited delay to permit a dog to walk around a lawfully stopped car “would be useful in combating Mexican border drug traffic,” Goodwin said. A 60-second stop adds an “insignificant amount of time to an otherwise indisputably lawful detention.”

Balanced against the “grave public concern” with illegal drugs, a “brief” personal intrusion must give way, Goodwin said. Judges Procter Hug Jr. and Jerome Farris concurred.

Both O’Toole and Betty Wheeler, the legal director of the ACLU in San Diego, said the ruling is unlikely to have wide impact because it appears to be aimed directly at cases involving extremely brief stops.

“I don’t know that 60 seconds is magic,” O’Toole said. “I think that the shorter the detention, the stronger the government’s case is likely to be. The longer it is, the more difficult it’s likely to be. You clearly couldn’t be talking about an hour.”

But, he said, “I’ll take it as it is.”

Wheeler said the ACLU remains “very concerned” that prosecutors will try again to find a test case that would grant agents the authority to search motorists on a “routine and sweeping basis.”

“We all drive (I-5) from San Diego or North County to Los Angeles,” Wheeler said. “Many people do that as a frequent commute. The notion that the government can subject commuters on the freeway to such frequent intrusions without suspicion or with minimal suspicion is something we all should be concerned about.”

It remained unclear Thursday whether Taylor’s case will be appealed further. Taylor’s San Diego lawyer, Kathryn A. Thickstun, was out of town and unavailable for comment.

If the appeal goes no further, Taylor will face trial, O’Toole said.