Tactics at Border Checkpoint Under Fire : Law: Civil libertarians contend that zeal over war on drugs is eroding privacy rights of innocent people at San Onofre stop.

For Kurt Disser, the drill is distressingly the same. He drives up to the San Onofre checkpoint on Interstate 5 at Camp Pendleton. Sensing something suspicious, U.S. Border Patrol agents wave him aside for a thorough check. The agents search Disser and his car. And find nothing.

This has gone on 15 times in the past 17 months, Disser said--and each time, nothing. No drugs. Nothing illegal.

Disser is a diamond dealer who travels frequently between San Diego and Los Angeles. Something about his appearance--maybe his long hair, perhaps his mustache, possibly his used Cadillac--fits the image of what federal agents apparently believe a drug runner looks like. For that reason alone, he said, the Border Patrol snoops into his business.

“Why in the middle of this highway are they stopping people for no reason?” he asked. “This is America, and you’re not supposed to do that. This isn’t Nazi Germany, where you can stop people wherever and whenever you want and ask for their papers.”

Disser is weighing legal action, and there is a “substantial likelihood” the American Civil Liberties Union will take the case, said Betty Wheeler, legal director of the group’s San Diego chapter.

Disser’s experience underscores a question that affects millions of people each year on the freeways between San Diego and Los Angeles: Are the Border Patrol checkpoints, in particular the busy roadblock at San Onofre, designed to halt illegal immigrants or drugs?

The answer lies at the heart of the debate over the so-called “war on drugs.”

Prosecutors and police have made it plain that stopping the flow of illicit drugs is law enforcement’s No. 1 priority. Civil libertarians maintain that the zeal of the anti-drug campaign is eroding the precious privacy rights of innocent people--like Disser.

The Border Patrol’s policy at the checkpoint is to detain only those people suspected of immigration offenses. Once those people are stopped, agents “briefly further detain” suspected drug smugglers, people who seem nervous or show “unusual behavior,” according to court documents.

Yet Disser believes he is not being yanked out of traffic because Border Patrol agents think he might be an illegal immigrant. It’s because they think he looks like a drug dealer, he said.

“I think that’s what happening with Mr. Disser is truly frightening,” Wheeler said. “He is a businessman who, just in the course of his routine, day-to-day work, has been subjected to multiple and extended police stops.

“I think for most Americans, the concept that someone who is both innocent and for whom the police have no (good) cause can be subjected to that much loss of liberty--well, that violates values at the core of what we hold dear,” Wheeler said.

For Americans who travel to and from San Diego, the implications are even more ominous, Wheeler said. “Simply by virtue of our geographic location, this means we have less freedom from police search and seizure than other Americans,” she said. “That is not right.”

Prosecutors and the Border Patrol said the issue is murkier than that. It’s a question of balancing the need to halt the flow of drugs against a slight intrusion into a motorist’s privacy, said prosecutors in San Diego.

Because of stepped-up police work in Florida, cocaine and marijuana smugglers switched some six or seven years ago to alternate routes in Baja and Southern California, said prosecutors in San Diego. The primary smuggling route is over land, from Mexico through San Diego to Los Angeles, prosecutors said.

The U.S. Attorney’s office in San Diego estimates that federal agents seize only 10% of the drugs that are smuggled across the border. In fiscal 1991, the border patrol seized no cocaine along the 66 miles of border that San Diego-based agents patrol, spokesman Steve Kean said.

The North County checkpoint provides federal agents a second shot at seizing drugs.

At San Onofre, cocaine busts increased from a single seizure of 1.25 ounces in 1985 to 682 pounds--$10.2 million worth, wholesale--in 1991, according to court and Border Patrol figures.

“This is a permanent, fixed checkpoint,” said Assistant U.S. Atty. Patrick K. O’Toole, a San Diego prosecutor who argues for expanded drug checks at the checkpoint. “You don’t have police stopping you in the middle of the night or under the cover of darkness. There is no force applied. No rudeness.

“Everybody who comes through that area knows there is a possibility they may be stopped,” O’Toole said. “But they are not searched without consent or probable cause, the same two standards that apply throughout the rest of the country and have applied throughout constitutional history.”

Disser sees it differently.

“To know they are using these stereotypes or profiles to stop me means they’re probably doing it to to other people,” he said. “What if they decide every black guy in a blue Toyota is a drug dealer? It’s ridiculous, stopping me just because of the way I look. This is America, isn’t it?”

Disser, 27, divides his time among a jewelry business near Indianapolis, estate sales of gems in San Diego and the jewelry district in Los Angeles.

His first exposure to the checkpoint came a few years ago on a trip from San Diego to Los Angeles with a friend. Like most visitors unfamiliar with the routine, he found it astounding that U.S. border police could stop cars miles and miles from the border itself. “They don’t do this in Indiana,” he said.

Located 66 miles from the U.S.-Mexico border, the San Onofre checkpoint is the busiest of 30 such stations, strung from California to Texas, that give immigration authorities a second chance to catch illegal immigrants pouring across the porous border.

Each day, according to the state Department of Transportation, an average of 115,000 vehicles drive through the San Onofre checkpoint. That’s more than one a second.

In 1976, the U.S. Supreme Court said it was legal for the Border Patrol to briefly stop persons and vehicles for immigration-related questioning at the San Onofre stop.

Over the past two years, federal prosecutors in San Diego have pressed for a “dual use,” saying the San Onofre checkpoint is uniquely suited for checking for drugs, too.

Under the law, agents who have stopped someone they suspect of illegal immigration must have a strong suspicion--which in legal jargon is called “probable cause”--to search for drugs. Prosecutors want a more liberal search policy.

From June, 1990, through last October, when he went back to Indiana for the winter, Disser passed through the I-5 checkpoint about 30 times and catalogued 15 separate stops in which he was detained by Border Patrol agents.

There doesn’t seem to be any pattern to the stops, he said. Last Aug. 13, he said, he was stopped. On Aug. 14, agents let him through. On Aug. 15, he was stopped again.

Sometimes, Disser said, the stops have been polite. Other times he has been frisked, including one summer day when he was dressed in a shirt and shorts and endured five pat-downs.

On Jan. 21, 1991, he said, agents threatened to impound his car and tear it apart while he languished in a holding cell. Repeatedly, he said, agents have threatened him with force if he failed to open the trunk.

In an attempt to short-circuit the stops, Disser said, he began carrying his U.S. passport as proof of citizenship. On June 17, 1991, an agent looked at his passport and told him that was not enough to prove he was a citizen.

The agent “told me I had a German-sounding last name and (asked) how did they know I was an American, even with a passport. The level of the mentality is unbelievable,” Disser said.

In the most recent stops, he said, agents have called a drug-sniffing dog, which sniffs around the outside of Disser’s car, a brown 1979 Cadillac de Ville with a tan interior. Invariably, agents tell him the dog detects drugs, and that leads to a full search of the Cadillac, he said.

It’s all a bunch of nonsense, Disser said. “I do not do drugs,” he said.

The Border Patrol has no arrest records or incident reports on Disser, said Kean, the agency’s spokesman in San Diego. Agents and supervisors don’t even “have any personal, independent recognition of his name,” Kean said.

Kean also said he could not confirm the details Disser offered of the stops. Agents just don’t keep detailed records of motorists who ultimately drive away, Kean said.

Disser said agents have told him the reason he’s being targeted is that he fits the “profile,” a loose stereotype of what agents believe a drug runner looks like.

“It’s that I’m young. I’m driving a large American-made car. They see shoulder-length hair, which I’ve had from time to time. And facial hair--I have a mustache. One time I was stopped in (a friend’s) car--they told me tinted windows, too. His car has tinted windows. But mine does not.”

Three years ago, the U.S. Supreme Court gave police a cautious green light to use profiles to stop and search suspected drug couriers at airports. The court said, though, that each case would have to be judged separately, to make sure police weren’t being racist or arbitrary.

The notion of using a stereotype at the checkpoint “might play quite differently” in court if it could be proven the profile serves as nothing more than a pretext to pull over a drug suspect for bogus immigration reasons, said Scott Sundby, a criminal law professor at Hastings College of the Law in San Francisco.

Kean said he could neither confirm nor deny whether agents at the San Onofre checkpoint keep a close watch for hairy young men behind the wheel of big American cars, especially those with tinted windows.

He said only that agents “are looking for behavior that is atypical, out of the ordinary, zeroing in on that and targeting those individuals.”

Civil libertarians said that explanation makes it hard to tell the difference between a legal stop made on the basis of a court-approved profile from an illegal one made because an agent just didn’t like someone’s appearance. The idea behind the Constitution, Wheeler said, is to prevent police from unreasonable stops--particularly one made just because of the way a person looks.

And still, Wheeler said, the government keeps asking for more and more power in the “war” on drugs.

“In case after case, we have seen erosions of our liberties in the name of winning the war on drugs,” she said. “People have, I think, been too willing to accept that because they think the war on drugs is important.”