Border Patrol’s Role in Drug War Is Under Fire

For Kurt Disser, the drill is distressingly the same. He drives up to the San Clemente checkpoint on Interstate 5. 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 18 months, Disser said--and each time, nothing. No drugs. Nothing illegal.

Disser, 27, is a diamond dealer who often drives between San Diego and Los Angeles. Something about his appearance--maybe his long hair, perhaps his mustache, possibly his used Cadillac--fits the profile of what federal agents apparently believe a drug runner looks like.

“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.”

There is a “substantial likelihood” that the American Civil Liberties Union will take Disser’s case if he chooses to file a lawsuit, said Betty Wheeler, legal director of the 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 designed to halt illegal immigrants or drugs? Authorities say they can use them for both, but civil libertarians say the checkpoints are set up to stop illegal immigration--period.

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 illicit drugs is law enforcement’s No. 1 priority. Civil libertarians maintain that the zeal of the anti-drug campaign is eroding the privacy rights of innocent people like Disser.

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

Yet Disser is not yanked out of traffic because Border Patrol agents think that he might be an illegal immigrant, but because they think he looks like a drug dealer.

Disser “is a businessman who, just in the course of his routine, day-to-day work, has been subjected to multiple and extended police stops,” Wheeler said. For Americans who travel to and from San Diego, the implications are even more ominous, she said. “Simply by virtue of our geographic location, this means we have less freedom from police search and seizure than other Americans. That is not right.”

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

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

In the past two years, federal prosecutors here have pressed for a “dual use,” saying the checkpoint is uniquely suited for drug checks, too.

On Jan. 28, the U.S. Supreme Court concurred, relaxing the rules for a stop at the checkpoint. Border Patrol agents can now detain a driver if they have only a slight suspicion that illegal immigrants may be aboard. Agents may then prolong the stop to ask about drugs.

Under the law, agents who have stopped someone they suspect of illegal immigration must still have a strong suspicion--”probable cause”--to go beyond questions and search for drugs.

Because of intensified policing in Florida, cocaine and marijuana smugglers switched about seven years ago to routes in Baja California and Southern California, prosecutors said. The primary smuggling route is overland, from Mexico through San Diego to Los Angeles, prosecutors said.

Only 10% of smuggled drugs are seized at the border, the U.S. attorney’s office in San Diego estimates. 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 checkpoint gives federal agents a second shot at seizing drugs. At San Clemente, cocaine busts increased from a single seizure of 1.25 ounces in 1985 to 682 pounds in 1991, according to court and Border Patrol figures.

“This is a permanent, fixed checkpoint,” said Assistant U.S. Atty. Patrick K. O’Toole, who argues for expanded drug checks at the checkpoint. “Everybody who comes through that area knows there is a possibility they may be stopped. But they are not searched without consent or probable cause.”

Disser sees it differently.

“To know they are using these stereotypes or profiles to stop me means they’re probably doing it to other people,” he said. “What if they decide every black guy in a blue Toyota is a drug dealer?”

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

On average, according to Caltrans, 115,000 vehicles drive through the checkpoint each day, more than one per second.

From June, 1990, through last October, Disser catalogued 15 stops at the checkpoint--about every other time he passed through.

The Indiana-born Disser said he began carrying his U.S. passport as proof of citizenship. Last June 17, an agent looked at his passport and told him it was not proof enough. 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,” Disser said.

In the most recent stops, he said, agents bring out a drug-sniffing dog to sniff around the outside of his brown 1979 Cadillac de Ville. Invariably, agents tell him the dog detects drugs, and that leads to a full search, he said. “I do not do drugs,” Disser said.

The Border Patrol has no arrest records or incident reports on Disser, said Kean, the agency’s spokesman. Kean said he could not confirm Disser’s details of the stops. Agents do not keep detailed records of motorists who are allowed to drive away, Kean said.

Disser said agents have told him the reason he is 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 were not being racist or arbitrary.

Kean said he could not confirm whether checkpoint agents keep a lookout for hairy young men driving big American cars, with or without 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 that explanation makes it hard to tell a legal stop made on the basis of a court-approved profile from an illegal one made because an agent did not like someone’s appearance.

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