Ruling Boosts Authority of Checkpoint Agents

Border Patrol agents at the immigration checkpoint on Interstate 5 near San Clemente have good reason to stop a motorist and search for drugs if they see an older car that’s loaded down and driven too fast, a state appeal court in San Diego ruled Thursday.

In a ruling that defense lawyers called a troubling erosion of civil rights, the 4th District Court of Appeal upheld the drug conviction of an Oakland man who was stopped and whose briefcase was searched after he whipped north at 85 m.p.h. through the closed checkpoint in his old car, which ran low to the ground.

In a separate ruling issued last spring, Border Patrol agents were given authority by a federal appellate court to conduct limited searches for drugs at the checkpoint. The ruling Thursday from the state court broadens agents’ power to search for drugs during stops made near, but not at, the checkpoint.

By coincidence, the federal ruling was appealed Thursday to the U.S. Supreme Court. Since the 4th District court ruling is so troubling, an appeal of that case to the California Supreme Court also is likely, the defense lawyer in the case said.

“It’s frightening,” Emeryville attorney Ted Cassman said. “The courts seem to be willing to vest so much discretion in police officers, to let them assert their authority and inject their meddling in the affairs of private citizens.”

It is unusual for state appellate courts to consider cases that spring from arrests made by federal police. But when cases involve only small quantities of drugs, sometimes a federal case is turned over to local authorities and ends up in the state court system.

That’s what happened to Winston Bryant McConney, who was convicted of transporting a controlled substance and sentenced by Vista Superior Court Judge Ronald Prager to 220 days in jail and three years’ probation.

Leaving San Diego, McConney was driving north on I-5 about 9 p.m. on Nov. 11, 1989, Cassman said.

The checkpoint was closed, and McConney breezed through at 85 m.p.h. in his older car. Border Patrol agents followed and pulled him over.

The car appeared to be heavily loaded, a sign that illegal immigrants might be hidden aboard, said Judge Gilbert Nares, who wrote the opinion. Agents asked if they could open the trunk, and McConney consented, but no one was found, Nares said. Then agents searched the bags in the back seat and found cocaine.

Cassman contended that the stop itself was based on no good reason. But the type of car, its appearance and the driver’s actions were enough for agents to search McConney’s car for illegal immigrants, because those factors could have given agents a “reasonable and founded suspicion” that McConney might be hiding migrants, Nares said.