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Right of feds to make drug arrests at I-93 immigration roadblocks challenged

By JOHN KOZIOL
Union Leader Correspondent

January 12. 2018 12:17AM
Thomas Rappa, the presiding judge at Plymouth District Court, listens Thursday afternoon as Border Patrol Agent Mark Qualter testifies about his role in two checkpoints conducted by the agency last summer on Interstate 93 in Woodstock. (JOHN KOZIOL/CORRESPONDENT)



PLYMOUTH — District Court Judge Thomas Rappa is considering whether to dismiss state drug charges against 16 people stopped at federal Border Patrol immigration checkpoints on Interstate 93 in Woodstock in August and September.

Three Border Patrol canine handlers testified they had legal grounds to conduct a search of the vehicles involved. Because the amount of contraband was below Border Patrol guidelines for prosecution, the handlers said the materials were handed over to Woodstock police.

Gilles Bissonnette, legal director of the NH American Civil Liberties Union, said the Border Patrol could have brought charges in federal court, but chose not to. In choosing to delegate to the Woodstock Police Department, Border Patrol should have followed state law — which would have required search warrants, he said.

Bissonnette told Rappa that what the state was trying to say that the entire state of New Hampshire — because all of it is within the 100-mile zone in which Border Patrol has authority — is subject to warrantless searches.

“Dover is not the border, your honor, Nashua is not the border,” said Bissonnette, adding that drug interdiction, not immigration, was the primary purpose of the checkpoints.

He pointed out that courts in other states have made it clear that state law increases in authority the farther one goes from the border.

Border Patrol has exclusive authority at the border and at international ports, Bissonnette said, but it does not and should not have “carte blanche” in New Hampshire.

Along with Bissonnette, the defendants, 15 of whom were present for Thursday’s three-hour-plus hearing, are being represented by Mark Sisti and Albert “Buzz” Scherr of the University of New Hampshire School of Law.

Gabriel Nizetic, representing the state, said the checkpoints were conducted by a federal agency “performing a federal function” and stressed that “there is no state action.”

Sisti questioned several Border Patrol agents, including Mark Qualter.

Qualter said the secondary searches he made were “entirely based upon a dog sniff” and later said that it was “entirely possible” that Woodstock police assisted Border Patrol in conducting some of the motor-vehicle searches at the checkpoints.

Agent John Marquissee confirmed that Woodstock police officers were present on at least one occasion when a search was made that led to a drug arrest and that the department “were processing citations” for “our marijuana cases.”

Woodstock was present, he agreed, “but being there is not sufficient to establish an agency relationship.”

“Just because they’re there,” Nizetic said of Woodstock police, “doesn’t mean they’re doing their (Border Patrol’s) bidding.”

Bissonnette, however, said the defense has evidence showing collaboration between Border Patrol and the Woodstock Police Department, including an e-mail in which a Border Patrol official tells a Woodstock police peer that “without you folks, we would have been hamstrung.”

He also referenced a Union Leader article in which Woodstock Police Chief Ryan Oleson said Border Patrol agents have “a lot more leeway” in conducting searches and that he could not use a dog to search a car unless he has a suspicion of drug possession.

jkoziol@newstote.com


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