Plymouth, NH
– The New Hampshire Circuit Court has ruled that the border patrol
checkpoint that occurred in August 2017 on Interstate
93 in Woodstock, New Hampshire was “unconstitutional under both State
and federal law.”  Woodstock is a small town (population 1,374) in the
White Mountains—a popular tourist attraction—that is approximately 90
driving miles from the Canadian border.
American Civil Liberties Union of New Hampshire (“ACLU-NH”) challenged
the constitutionality of this border patrol checkpoint on behalf of 16
individuals.  These 16 individuals
were travelling in New Hampshire lawfully and were seized and searched
during this checkpoint without any suspicion that they had committed a
crime.  The State ultimately charged these individuals with allegedly
possessing small amounts of drugs for personal
use.  These 16 individuals are being represented by Gilles Bissonnette
(Legal Director for the ACLU-NH), Professor Buzz Scherr from UNH School
of Law, and defense attorney Mark Sisti.
this border patrol checkpoint, the Woodstock Police Department (“WPD”)
worked in concert with federal United States Customs and Border
Protection (“CBP”) to circumvent the
independent protections provided by the New Hampshire Constitution
against dog-sniff searches in the absence of a warrant or reasonable
suspicion.  Specifically, CBP agents used dog-sniff searches in
situations where New Hampshire law enforcement would have
been barred from conducting similar searches. The CBP then turned over
to the WPD resulting evidence from these federal searches for state drug
Circuit Court ruled that the “evidence was seized in violation of the
constitutional rights recognized” under the New Hampshire Constitution.
As the Court explained, “given
that the defendants in this matter are facing prosecution in the State
court for violations of State laws, the constitutional protections of
the New Hampshire Constitution should apply.”  The Court added: “[T]he
inadmissibility of the evidence does not change
based on the fact that it was seized by federal officers and then
handed over to the State.”  Indeed, according to the Court, CPB and the
WPD “were working in collaboration with each other with the
understanding that the WPD would take possession of any drugs
seized below the federal guidelines for prosecution in federal court
and bring charges in this [state] court based on that evidence.”
Court also separately ruled that this border patrol checkpoint, given
the facts of this case, violated the Fourth Amendment to the United
States Constitution, which prohibits
unreasonable searches and seizures.  Under the Fourth Amendment, a
border patrol checkpoint is unconstitutional if its primary purpose is
to detect drugs.  The Court concluded that, based on the evidence
presented, “it is patently clear that the primary purpose
of WPD being present at the checkpoint in August [was] to accept the
illegal drugs confiscated by the CBP searches in order to prosecute the
defendants on state drug charges.”  The Court added: “[T]he State and
federal authorities were absolutely working in
collaboration with each other.”  Thus, the Court ruled, “while the
stated purpose of the checkpoints in this matter was screening for
immigration violations, the primary purpose of the action was detection
and seizure of drugs.”
decision is a victory for civil liberties.  As the Court ruled, these
checkpoints flagrantly violated the New Hampshire Constitution and the
Fourth Amendment,” said Gilles
Bissonnette, the Legal Director for the ACLU-NH and co-counsel on the
case.  “CPB and the WPD searched and seized hundreds, if not thousands,
of the individuals during the summer tourist season without any reason
to believe that these individuals had committed
a crime.  This is not how a free society works.”
New Hampshire and Federal Constitutions do not allow law enforcement to
engage in a fishing expedition for criminal activity.  Yet this is
precisely what happened here,” said
Buzz Scherr, a professor of law from UNH School of Law and co-counsel
on the case.
checkpoints ignored the presumption of innocence and assumed that all
those passing through were guilty of criminal activity.  This ‘ends
justifies the means’ approach is precisely
what the New Hampshire and Federal Constitutions have rejected since
their inception,” said Mark Sisti, who was counsel on the case.


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