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by Peter Moskos

November 28, 2010

Willie Nelson likes smoking pot

But we all know that. He doesn't keep it secret and thinks it should be legal. But since it's not, he's been arrested for it. Again. Of course it's silly a supposedly free country wastes our money and law enforcement resources arresting senior-citizen for smoking a pretty harmless substance.

Of course it's probably not a big deal for him. For Willie, getting busted yet again is almost like another feather in his bandanna. It's more a shame when my students are arrested for such things. They can actually be hurt by a drug arrest. They don't have much money and go to public university. When I went to college at a very rich private university, I don't think anybody was ever been arrested for marijuana possession. (I'm just sayin'...).

But this arrest bothers me more than usual because Willie Nelson, a US citizen, was detained at a US Border Patrol checkpoint while traveling within the US. Willie Nelson never left the Land of the Free. He was simply minding his own business being driven down US Highway 10 when he was stopped by federal agents at a border checkpoint that isn't on the border. Seems they make a lot of low-level drug arrests here which probably brings in a little money to little Sierra Blanca and Hudspeth County, Texas.

US Border Patrol can and does stop people at "Interior Checkpoints" without cause. One needn't be an anti-government survivalist to be slightly bothered by this. The main purpose, supposedly, is to deter illegal immigration. OK. Fine. So why arrest a guy getting stoned in the back of his tour bus? [Update: I should amend that to say the main purpose originally was to deter illegal immigration. Drugs were never mentioned in the original Supreme Court decision. But see the first comment below for yet another example of how the war on drugs creeps into everything.]

Police get power because of fear of terrorism or immigration. But once you give police that power, they can and will (and arguably should) use it as a tool for all law enforcement. I've written about this problem before, albeit in the slightly different context of airport security. If Border Patrol can stop people on trains and roads within 100 miles of an international border to look for illegal immigrants, then they should do nothing but make sure you're not an illegal immigrant. Period.

In this case, the officer smelled weed when the door opened. This "plain smell" gives probable cause for further detention and search of a motor vehicle.

And let me just mention how nice it was of Willie to take one for the team. He said the six ounces of found marijuana was his. That's a lot of weed, even for Willie!

At fixed check points (but not roaming ones) Border Patrol got the authority to stop people at their discretion in US v. Martinez-Fuerte (1976) when the court said:
It is agreed that checkpoint stops are "seizures" within the meaning of the Fourth Amendment.... But it involves only a brief detention of travelers during which "[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States."
The decision was seven to two. The two dissenters, Brennan and Marshall, wrote:
There is no principle ... which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied. Dispensing with reasonable suspicion as a prerequisite to stopping and inspecting motorists because the inconvenience of such a requirement would make it impossible to identify a given car as a possible carrier of aliens is no more justifiable than dispensing with probable cause as prerequisite to the search of an individual because the inconvenience of such a requirement would make it impossible to identify a given person in a high-crime area as a possible carrier of concealed weapons.
The lonely dissenters also took objection to the majority's opinion that, "We further believe that it is constitutional to refer motorists selectively to the secondary inspection area ... even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation." That's a bit scary.

Is such constitutional racial profiling still law of the land or has some more recent case overturned that?


Dan said...

I lived about 70 miles south of a checkpoint for three years. Anytime you wanted to travel north of the region in which I lived, you had to go through it. They don't pretend, at least on-site, that they're strictly immigration enforcement -- it's pretty clear that they're about drugs, too. (They have a big sign, like the ones you'd see in a warehouse about how many days they've gone without an accident, indicating how many pounds of various illegal drugs they've confiscated since the first of the year. You see it as you approach. I think it's made out of wood -- definitely a permanent fixture.) As far as I'm aware, that's an official position, not a fluke.

They'll ask other questions that they really have no right to be asking, too -- I would travel up to San Antonio or Austin with friends. We were all around twenty years old, and most of the dudes I hung out with were Latino. One of those guys was from a pretty wealthy family, and we'd come up to the checkpoint in his Mercedes, and have to answer all sorts of questions about whose car it was while they tried to determine if we stole it, as well as the purpose of our trip, all that stuff. If I recall correctly, there was also a determination that, if a car decided to turn around just before the checkpoint for any reason, that was considered probable cause and the car could be searched (that one might be apocryphal, but I seem to remember it making news at the time.)

Anyway -- down in the border communities, the low-level civil liberties violations that are border checkpoints 70+ miles north of the actual Mexican border are just a fact of life. The outrage over 'em has long been exhausted by most people, unless they've just moved there from up north.

PCM said...

Interesting and thanks for the comment, Dan.

It became news in the north a year or two ago when they started questioning people on intercity Amtrak trains near the Canadian border. Why? Because they can.

jim said...

Check out local laws regarding homeschooling. States may have different rules and regulations regarding the number of mandatory school days you need to homeschool your child. You can use the local school district does.
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