U.S. Customs-Border Patrol checkpoint in Woodstock

Scenes from the U.S. Customs-Border Patrol checkpoint on June 15, 2018, in Woodstock. CBP conducted the checkpoint on I-93 southbound, just before Exit 30.

A judge has ruled a federal lawsuit over border patrol checkpoints can move forward, swatting down the U.S. Border Patrol’s motion to dismiss the suit.

Attorneys with the American Civil Liberties Union of New Hampshire filed the lawsuit in August 2020 in U.S. District Court, arguing the checkpoints sometimes set up on Interstate 93 by U.S. Customs and Border Protection constitute unreasonable searches and seizures, and violate the Fourth Amendment rights of people stopped.

Border Patrol agents stop every car that passes through the checkpoints, asking everyone who passes about their citizenship. During that questioning, agents also use police dogs to sniff near the cars. If the dog signals the presence of a drug, the car is searched further — and if drugs are found, local police can charge drivers with crimes.

Through his ACLU attorneys, plaintiff Jesse Drewniak of Hudson argued the practice violated his constitutional rights because the agents had no reasonable suspicion to stop him and search his car when he was pulled over in 2017 on his way home from a fly-fishing trip. A dog alerted for drugs, and Drewniak admitted to having a small amount of marijuana.

Drewniak was charged with possession, but charges were dismissed after a New Hampshire court ruled the stop unconstitutional in 2018.

The checkpoints exist to stop undocumented immigrants from traveling further into the United States, but in the lawsuit Drewniak argues they have evolved into “general crime control,” like finding people who have controlled drugs.

The lawsuit seeks to stop the practice of setting up checkpoints.

Customs and Border Protection moved to dismiss the suit, arguing that Drewniak did not have standing because they did not have any checkpoints planned at the time.

But District Judge Landya McCafferty wrote in a ruling released Thursday that Drewniak has standing to sue because he is an avid outdoorsman, and frequently travels to the White Mountains for recreation, so he would be likely to encounter another checkpoint in the future. The frequency of checkpoints in 2017, 2018 and 2019 suggested there could be more, McCafferty wrote.

She dismissed part of Drewniak’s complaint seeking damages from an individual U.S. Border Patrol officer, but the rest of the suit — focused on stopping the checkpoints — can proceed.

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