CONCORD — A Hudson man is getting closer to a face-off with U.S. customs officials over their use of checkpoints on Interstate 93 in the White Mountains.
Earlier this week, U.S. District Court Judge Landya McCafferty rejected a request by U.S. Customs and Border Protection for a stay in a case that challenges the checkpoints on Fourth Amendment grounds.
In use mostly during the summer, the I-93 checkpoints are designed to apprehend immigrants in the country illegally, officials have said, but the use of drug-sniffing dogs has led to numerous drug arrests.
McCafferty ruled that discovery, which allows lawyers to access records and other evidence, can proceed.
“It’s still early in the case,” said lawyer Scott Harris of McLane Middleton. But he said the ruling allows lawyers to access the facts while the judge entertains ongoing legal issues.
Harris and a raft of civil rights and criminal defense lawyers are representing Hudson resident Jesse Drewniak. In August, he sued CBP, one of its agents, a supervisory agent and the chief patrol agent of the Swanton, Vt., sector of CBP, which includes New Hampshire.
According to his lawsuit, a CBP drug-sniffing dog lighted on his car during an August 2017 checkpoint, and an agent screamed profanities in his face and demanded to know where drugs were.
Drewniak provided a small amount of hash oil from his car’s console. He was charged with drug possession.
A New Hampshire judge later threw out his arrest, along with the arrest of 30 other travelers charged with minor drug offenses, ruling that New Hampshire law prevents drug-sniffing dogs to search a car without probable cause.
The lawsuit challenges the search, seizure and delay related to the checkpoint. Drewniak seeks both unspecified monetary damages and a ruling from a judge to halt the checkpoints.
CBP did not have an update on checkpoint activity available for the Union Leader on Wednesday.
The CBP had asked McCafferty to place a hold on the case, arguing the agents had qualified immunity that protected them from suit. McCafferty has yet to rule on that claim, but the judge said the CBP cannot raise qualified immunity just to forestall discovery.
A spokesman for Scott Murray, the U.S. attorney for New Hampshire, said the office does not usually comment on pending cases.
Drewniak filed the lawsuit last summer, and his legal team includes UNH Law professor Albert “Buzz” Scherr, criminal defense lawyer Mark Sisti, and lawyers from ACLU branches in New Hampshire, Maine and Vermont.