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The Border Patrol is unapologetic about its right turn toward busting hordes of minor drug offenders at the Yuma-area checkpoints. In fact, Jeremy Schappell, spokesman for the Yuma Sector, brags that the agency practices zero tolerance when it comes to any amount of illegal substances or paraphernalia.
"If we get just a pipe, they are getting written up," Schappell says. "If it's a seed, they are getting written up."
Using drug-sniffing dogs at checkpoints to catch small-time marijuana users probably seems like a smart idea to Americans who view drug use as morally unacceptable.
However, keeping in mind the Fourth Amendment's prohibition against unreasonable searches and seizures, judges have traditionally taken a dim view of such "suspicion-less" stops and searches of vehicles.
After first taking office in 1993, Sheriff Joe Arpaio, a former DEA agent, proposed staking out main roads in and out of Maricopa County with checkpoints. Then-County Attorney Rick Romley put the kibosh on Arpaio's idea, saying it was unconstitutional.
In 2000, the U.S. Supreme Court struck down another drug checkpoint proposal in Indianapolis vs. Edmond. In the landmark case, Indianapolis police set up roadblocks staffed by dogs and their handlers, ultimately busting about 50 people with drugs.
The Supreme Court had, in the past, found two major exceptions to its general disapproval of police checkpoints. In 1990's Michigan Dept. of State Police vs. Sitz, the High Court allowed DUI checkpoints. And in 1976's United States vs. Martinez-Fuerte, it gave the Border Patrol the right to set up checkpoints that seek to uncover illegal immigrants — with the secondary purpose of finding drugs.
"We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing," the Supreme Court majority wrote in the Indiana case. "The [Indianapolis] checkpoints violate the Fourth Amendment."
The notion of a checkpoint where police can pull over every single vehicle and search it chills many Americans. Justice Clarence Thomas, no beacon of liberal thought, made that clear in his dissenting opinion in the 2000 case. Though Thomas felt compelled to side with the Indianapolis police because of court precedents, he challenged the basis of the precedents strongly.
"I am not convinced that Sitz and Martinez-Fuerte were correctly decided," Thomas wrote. "Indeed, I rather doubt that the framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing."
The new agreement with Yuma County blurs the distinction between drug and immigration checkpoints.
The Yuma County Sheriff's Office, like all other law enforcement agencies in the country, cannot legally operate a K9 checkpoint. But in Yuma County, Border Patrol agents are deputized to write local-jurisdiction citations — an end run around long-standing constitutional protections against stopping motorists without probable cause.
The Border Patrol takes pains to explain that it's running immigration checkpoints, with the secondary mission of detecting illegal drugs, just as the Supreme Court's legal interpretation allows.
Graham Boyd, director of the American Civil Liberties Union's Drug Law Reform Project in Santa Cruz, California, says the procedures at the Yuma checkpoints are a good example of how increased police powers for one purpose often end up being used for another. The supposed need for an immigration checkpoint is "thin justification" for busting every drug user passing through, he insists.
"Even if somebody has no sympathy for a marijuana user," Boyd says, "you should still be concerned that the U.S. government is saying the border is an area where the U.S. Constitution is suspended."
On a recent winter day at the I-8 East checkpoint, two skinny young Hispanic women are led away in handcuffs. A Department of Public Safety Officer helps them into his patrol car for a trip to the Yuma County Jail.
A checkpoint dog found meth in the women's car.
The dogs working the checkpoint that day were Belgian Malinoises, though the agency also uses German shepherds, Labradors, and other breeds. They're kept fit and trim — so lean, in fact, that motorists often urge the agents to feed them more. It takes about six weeks to train the dogs to sniff out drugs and people, then another six weeks to train their handlers, says Wes Burch, the Yuma Sector's K9 coordinator.
To the animals, the work is a fun game of hide and seek. Sometimes, they can smell drugs from dozens of feet away as they walk along the queue of slowly rolling vehicles. A dog's body posture changes if it catches a whiff of drugs, becoming more rigid and focused. Its breathing quickens. After the vehicle is emptied of visible occupants, the dog is nearly infallible at finding drugs or people hidden inside. If drugs don't turn up, it doesn't mean they weren't there earlier. A Border Patrol K9's sense of smell is so acute, agents say, that it can tell if someone smoked marijuana in or near a vehicle days before the checkpoint stop.
When they find drugs, the dogs are rewarded with a small burlap toy for a few moments. The animals seem to love their job, eagerly sniffing within inches of vehicles, putting their paws on truck bumpers, and scanning the air with their snouts.