MCLU bridles at ruling on random stops

U.S. border patrol agents in Maine can conduct random roadblocks and stop motorists without individual justification, a federal judge ruled this week.

The Maine Civil Liberties Union has said the decision threatens the “essence of liberty.”

U.S. District Court Judge John Woodcock, sitting in Portland, made the ruling in the case of U.S. v. Joshua D. Gabriel, 30, of Ontario, Canada,who was stopped in September 2004 at a checkpoint in Old Town.

Border patrol agents found two hockey bags full of marijuana in Gabriel’s vehicle and he was arrested, but MCLU officials have questioned the constitutional legality of the stop.

“We’re very disappointed with the ruling,” MCLU Executive Director Shenna Bellows said Wednesday. “The essence of liberty is freedom of movement. Our concern is really whether [border patrol agents] can search in the first place.

“This decision basically allows police to stop you anytime, anywhere.”

Woodcock’s ruling could be appealed, which means the case would go before the 1st U.S. Circuit Court of Appeals, based in Boston.

His ruling overturned an initial decision made by U.S. Magistrate Judge Margaret Kravchuk.

“This [decision] essentially gave the government two chances to get it right,” Gabriel’s defense attorney, Lenny Sharon of Auburn, said Wednesday by phone.

Earlier this year, the MCLU requested that the government turn over copies of its policies and practices governing the operation of the Old Town checkpoint as well as information about exactly who has been stopped and searched.

Kravchuk echoed the MCLU’s concerns and earlier this year recommended that evidence obtained at a similar stop in the same location be suppressed.

“… Although I recognize that the intrusion upon an individual’s right to travel the highways without interruption is minimal,” Kravchuk wrote in her opinion, “the government simply has not demonstrated that its operation of the Old Town checkpoint appreciably advances any legitimate public interest.”

Woodcock, however, in his 20-page decision ruled that the temporary checkpoint set up in Old Town “passes constitutional muster” and was necessary to the government for the protection of the public. He referenced as precedent a U.S Supreme Court decision from 1976 that dealt with similar roadblocks between San Diego and Los Angeles, several miles from the Mexican border.

The federal judge determined that “while the burden on Fourth Amendment rights remain small, the governmental need remains great … The United States-Canadian border is over twice as long as the Untied States-Mexican border, and likely presents as enticing an opportunity for smuggling weapons of mass effect or for individuals bent on destruction.”

Based on Woodcock’s decision, Gabriel likely will enter a conditional guilty plea, which reserves him the right to appeal after sentencing, Sharon said. He is scheduled to appear back in court on Jan. 5.

Gabriel was indicted last year for possession of marijuana with the intent to distribute. Sharon then filed a motion to suppress the evidence on the basis that the checkpoint violated the Fourth Amendment, which prohibits unreasonable searches and seizures.

The U.S. Supreme Court has held that law enforcement may engage in suspicionless searches at the border itself. Border patrol agents, however, have stretched the interpretation to allow checking anywhere within 100 miles of a border.

Old Town lies about 70 miles from the closest international border.

“It’s not a law; it’s an administrative interpretation,” Bellows of the MCLU said. “No judge has ruled on this, no legislation has been passed. It’s just the border agents asserting their authority.”

She pointed out that most any town in Maine falls within 100 miles of a border.

U.S. Custom and Border Patrol agents began setting up temporary checkpoints in Old Town in July and September 2004 and again in April this year. The intent, according to border patrol officials, was to guard against potential terrorist threats.

No such threats were discovered.

“I’m chilled by the war on terrorism and the effect it’s having on the constitution,” Sharon said. “In my opinion, it has allowed the government an expansive encroachment on the constitution.”

Border patrol officials in Houlton and Assistant U.S. Attorney Daniel J. Perry declined Wednesday to comment.

The MCLU began investigating the stops after receiving several complaints, including one from three youths detained for almost an hour and repeatedly interrogated as to whether they might have any drugs, which they did not, and another from an MCLU volunteer lawyer returning from a fishing trip with her boyfriend.