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Borderlands Shell Game 

In the maze of border law enforcement, cases get shuffled and small perps can walk

Interstate 19 weaves past quaint villages and metastasizing suburbs on its way from Tucson to the Mexican border. But peek beyond the bucolic veneer of this meandering roadway and you'll find a bristling army of law enforcement, from Border Patrol agents and Highway Patrol down to local sheriff's deputies.

That means plenty of busts along the well-monitored gantlet, including big-ticket cases that draw TV crews.

Everybody loves a huge, splashy catch. But the small fry? Not so much.

Nonetheless, petty perps are reportedly a mainstay at the Border Patrol's I-19 checkpoint near Tubac. There, everyone traveling north from Nogales gets the once-over. And with plummeting rates of illegal immigration, agents have more time to scrutinize everyone passing through, including those who may be carrying trivial amounts of marijuana.

But federal prosecutors, on the other hand, tend to see such cases as a waste of their time and often refuse to take them before a judge. Instead, they pressure officials in places like Santa Cruz County—where the checkpoint is located—to pick up the low-level narcotics arrests or risk losing federal funding for everything from jail cells to extra officers.

"The feds are always waving that carrot at us," says Santa Cruz County Sheriff Tony Estrada. "They tell us, 'If you don't take them, we're just going to have to take your funding away.'"

Such busts also raise questions about how resources are prioritized at Border Patrol checkpoints—and who the real targets are. Every day, for instance, hundreds of law-abiding citizens must pass through the I-19 checkpoint, where ever-evolving rules dictate their interaction with agents.

James Lyall, a staff attorney with the ACLU of Arizona, calls it the "vague but obsessive authority" claimed by the Border Patrol. "Generally, at a checkpoint, it's OK if the Border Patrol agent asks a few questions concerning citizenship," he says. "But (the courts) haven't laid out what Border Patrol can and can't do with a whole lot of clarity."

While courts have upheld the use of drug dogs at checkpoints, says Lyall, "they have said that Border Patrol agents cannot search the interior of your vehicle at a checkpoint without probable cause or your consent."

Yet courts have also ruled that drug-dog alerts are probable cause for a search. The result is not surprising; Lyall cites steady reports from people whose cars were scoured after just such an alert, only to be sent on their way a couple of hours later when no drugs were found.

"It's well known that Border Patrol uses the sniffer dogs as a pretext for getting probable cause to search the vehicle when somebody doesn't consent to a search," Lyall says.

U.S. Customs and Border Protection wouldn't release the checkpoint's narcotics interdiction stats. But in an email to the Tucson Weekly, spokesman Victor Brabble wrote that the Border Patrol's Tucson Sector seized nearly 1 million pounds of pot in the fiscal year ending July 31—a 13 percent jump from the year before—adding that the "vast majority of marijuana seizures are made in remote areas, and checkpoint seizures pale in comparison."

On the other hand, those nabbed toting a joint through the checkpoint might just walk away. "Regarding prosecutions of 'personal use' marijuana," Brabble writes, "it is very rare to submit those cases for prosecutions unless there are mitigating circumstances."

That's echoed by Cosme Lopez, a spokesman for the U.S. Attorney's Office in Arizona. "It's all based on resources," Lopez says. "Is our office going to make a case against somebody using the very limited resources we currently have for a joint? Probably not."

But where does that leave Santa Cruz County, when its top prosecutor has vowed a "zero tolerance" drug policy no matter how small the bust? Not surprisingly, it creates nearly insurmountable momentum for handing small-time offenders over to Sheriff Estrada.

"We do everything to discourage that," says the veteran lawman, who describes an environment completely reversed from when he first wore a badge in the 1960s. Back then, he says, U.S. Customs actually encouraged local authorities to turn over their drug cases, because it boosted federal prosecution tallies. "They loved it," says Estrada, "and it took the burden off us."

He recalls how that changed in the 1970s, "when the feds started saying, 'You got 'em, you keep them.' So now everything we catch that spills across the border illegally, it's on our dime."

Eventually, Customs and Border Protection likewise began punting small cases his way. Although Estrada insists on his right to refuse, that's harder to do when it risks a cut to his federal assistance.

Since 2002, the four border states have split approximately $300 million in U.S. Justice Department funding to handle such cases, under what's called the Southwest Border Prosecution Initiative. But since 2010, that funding has dropped from $31 million to only $5 million, and the DOJ made no funding request for 2014.

However, Estrada's department still receives about $400,000 each year from a program called Operation Stonegarden, which compensates local agencies for border enforcement. Another $400,000 comes from participation in the multi-agency High Intensity Drug Trafficking Areas task force, better known as HIDTA.

According to Santa Cruz County Attorney George Silva, this shell game reached its nadir in the early 2000s, when federal attorneys were refusing to prosecute marijuana busts under 500 pounds. "But here in Santa Cruz County, that's the bulk of the loads that are seized," says Silva. "So it was affecting our ability to do our jobs. People being caught by the Border Patrol were saying, 'Nothing is going to happen to me because it was under 500 pounds.' That's the message the community started picking up."

Even so, Silva initially refused to let those cases go. "We started doing the investigations," he says, "but we were quickly inundated."

The tough times eased around 2010, he says, when the feds "got the funding that they needed, and we saw a drastic decline in the number of cases they were sending our way."

It doesn't hurt that they also provide money to Silva's office, including about $180,000 in HIDTA money which pays for two prosecutors and a detective.

Such money is hard to pass up, at the end of a busy highway where federal priorities remain a bit opaque.

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