16.
GROWING UP IN NEW ENGLAND, TERRY BRESSI COULD NEVER have imagined that most of his adult life would be shaped by a feud with the Border Patrol.1 He joined the Coast Guard out of high school and became fascinated with the stars after he was taught celestial navigation. After five years on ships, mostly stationed in Anchorage, Alaska, Terry enrolled at the University of Arizona to study astronomy. The transition from frigid Alaska to the deserts around Tucson was jarring, but he settled in and never left. He is now the chief engineer for the Spacewatch program at the University of Arizona’s Lunar & Planetary Lab. Even in middle age, Terry has a youthful, clean-cut appearance, almost like a prototypical white male astronaut of the 1960s.
Terry’s office is on the main campus in Tucson, but his engineering work often takes him to the Kitt Peak National Observatory, a fifty-six-mile drive to the southwest. Terry started making regular trips to Kitt Peak in the 1990s, as many as fifty times per year. The trip takes about an hour, as the suburbs of Tucson quickly give way to the mesquite and occasional saguaro that line State Route 86 as it leads toward Ajo. After a left on Route 386, the drive to the observatory climbs up through Tohono O’odham lands to a height of 6,887 feet (2,096 meters). For Terry, the drive there and the work on the telescopes are routine. The problems start on the trip back.
There was no Border Patrol checkpoint on SR 86 in the early years, but Terry noticed that the number of Border Patrol agents increased every year after the area was designated a high-intensity enforcement zone. Agents would aggressively pull up behind his official University of Arizona truck when he was on remote roads on the way back from the observatory. It irritated him. The increased Border Patrol presence also rankled Jim Kolbe, a moderate Republican who represented southern Arizona in the House of Representatives from 1985 to 2007. In 1999, Kolbe added a provision to the Omnibus Consolidated and Emergency Supplemental Appropriation Act: “No funds shall be available for the site acquisition, design, or construction of any Border Patrol checkpoint in the Tucson sector.” The Tucson sector is a Border Patrol zone that covers most of the state of Arizona except the far western area around Yuma.
The Border Patrol hated the provision and looked for ways to get around it. One strategy they tried was to piggyback on other types of checkpoints used by local or tribal police. Terry Bressi’s first major dispute was at a drunk driving checkpoint set up by the Tohono O’odham Nation in December 2001. On his way back to Tucson from the observatory, Terry sensed that the checkpoint was not really about drunk driving because there were more Border Patrol vehicles than tribal police cars. After refusing to answer the officer’s questions, Terry was forced to lie on the ground in the dirt for thirty minutes while they searched his truck. The whole ordeal lasted three hours. He filed a lawsuit against the Tohono O’odham police officers at the scene that day and finally won a $210,000 settlement in 2011. It was the first of his many protests at checkpoints.
In 2005, the Border Patrol tried another strategy to get around the ban on checkpoints in the Tucson sector. They began to set up temporary checkpoints on SR 86 that would be in place for only a few days. Then they would disassemble the checkpoint and move it a few miles up or down the highway. By 2007, the Border Patrol was running these “temporary” highway checkpoints on a continuous basis.
That same year, Representative Kolbe retired and was replaced by Democratic Representative Gabrielle Giffords. Giffords had much stronger border security views, and she immediately set out to reverse the ban on checkpoints in southern Arizona. She held town halls around the state jointly with representatives of the Border Patrol and she asked the General Accountability Office (GAO) for an assessment of checkpoint effectiveness. Even though the GAO report was critical of checkpoints, Giffords pushed ahead with her plans to remove the ban on checkpoints in the Tucson sector. After 2008, the Border Patrol stopped having to move the checkpoints around to comply with Kolbe’s ban. The checkpoint on SR 86 has operated 365 days a year since then.
Bressi was offended that even though he had not left the country—not even been within twenty-five miles of the border—he had to answer questions every time about his citizenship status. Instead, he refused to comply. Even he could not have foreseen how many contentious Border Patrol interactions the ensuing years would bring.
Checkpoints
Since the Border Patrol was established in 1924, the agency has used interior checkpoints as a “second line of defense” against unauthorized entries into the country. The interior checkpoints are justified based on the Border Patrol’s congressional authorization, which says that in the border zone agents can “board and search” all types of vehicles “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.”2 In the Martinez-Fuerte case in 1976, the Supreme Court considered and approved the Border Patrol’s use of interior checkpoints on highways and interstates within one hundred miles of borders and coastlines, as long as the location served an immigration policing purpose and did not overly interfere with other motorists.
The GAO conducted a 2017 review of the interior checkpoints, which found that the Border Patrol operated thirty-four permanent fixed checkpoints and 103 additional tactical checkpoint locations in the southern border zone. The Border Patrol does not operate any permanent interior checkpoints on the northern border with Canada, but does have many tactical checkpoint locations where they conduct periodic checks. These northern checkpoints were used much more frequently in recent years, expanding border enforcement into northern communities unaccustomed to the practice.
As the Border Patrol’s budget expanded, the fixed checkpoint facilities in the southern border zone have become elaborate. They include permanent offices and holding facilities on the side of the road as well as multiple lanes of traffic with covered booths for the agents. The Border Patrol uses automated license plate readers tied to a Drug Enforcement Agency (DEA) database to run checks on every vehicle that enters the checkpoint. They also regularly deploy dogs to search for drugs and even radiation sensors to look for dirty bombs. In 2012, Raul Castro, the ninety-six-year-old former governor of Arizona, was forced to stand in the sun for thirty minutes on a 100°F day after his recent treatment for cancer set off a radiation sensor at a checkpoint on I-19, north of Nogales.3
In 1976, the Supreme Court understood the purpose of checkpoints to be narrowly focused on immigration violations and said, “Our holding today is limited to the type of stops described in this opinion.” The Martinez-Fuerte opinion is quite specific on what types of inspections the agents can do: “Neither the vehicle nor its occupants is searched, and visual inspection of the vehicle is limited to what can be seen without a search.”4 Drugs and other contraband are not mentioned in the ruling. Nevertheless, the Border Patrol uses the checkpoints for all kinds of inspections not explicitly authorized by the Supreme Court’s decisions. The dogs, license plate readers, and radiation sensors are not primarily for immigration detection.
For example, Customs and Border Protection, the parent agency that includes the Border Patrol and the Customs Bureau, describes the purpose of the Falfurrias (Texas) checkpoint between McAllen and Houston, about ninety miles from the border itself, as primarily about terrorism prevention, while also mentioning drugs from the border. According to the CBP website, “The station’s primary responsibility is to maintain traffic check operations to detect and apprehend terrorists and/or their weapons of mass effect as well [as] to prevent the passage of illegal aliens and/or contraband from the border area to major cities in the interior of the United States via U.S. Highway 281.” Despite the focus on terrorism, the checkpoint has never caught a terrorist. Neither have any of the other interior checkpoints. Instead, while they do catch some immigration violations, the primary purpose of the interior checkpoints has become drug interdiction.
In the 1976 Martinez-Fuerte case, the government lawyers convinced the justices that the permanent checkpoints were “the most important of the traffic-checking operations.”5 However, the Border Patrol’s own data in the decades since does not support that assertion. The 2017 GAO report showed that 9.4 percent of the Border Patrol’s staffing time was spent at interior checkpoints but only produced 3.1 percent of apprehensions.6 The data showed that patrols deep inside the one-hundred-mile zone were ineffective and instead showed that 85 percent of apprehensions occurred within twenty miles of the southern border. Fifty-eight percent of apprehensions occurred within one mile of the border. In 2013, nine of the Tucson sector’s twenty-three checkpoints did not result in a single arrest of a “deportable subject” in the entire calendar year.7
The checkpoints did have a meaningful impact on drug seizures, but not necessarily from across the border. Sixty-eight percent of the Border Patrol’s drug seizures occurred more than ten miles from the border, almost exclusively at the interior checkpoints.8 Additionally, the size of the seizures and the citizenship of the person in possession of drugs varied dramatically based on the location. At the interior checkpoints, 40 percent of all seizures were from American citizens with less than one ounce of marijuana: citizens who had not traveled abroad, who were found with a small, recreational amount of a drug that is legal in many parts of the country. By contrast, seizures closer to the border at non-checkpoint locations were typically large amounts of smuggled drugs. Seventy-five percent of non-checkpoint seizures of marijuana were over fifty pounds. In the majority of these cases, there was no arrest at all because the smugglers simply dumped the load after being spotted. American citizens account for 83 percent of marijuana seizures at checkpoints. At all other locations, only 6 percent of marijuana seizures involve American citizens.9
“The Primary Purpose of the Action Was Detection and Seizure of Drugs”
Jesse Drewniak spent the last Sunday of August 2017 fly-fishing near the picturesque Profile Lake in central New Hampshire. The thirty-seven-year-old white man, with a full beard and brown and white baseball cap, was an avid outdoorsman who made upward of fifty trips per year from his home in Hudson, near the Massachusetts state line, up I-93 to the White Mountains. He would forage, hike, and swim in the summer and even make several trips a year to ice fish on Lake Winnipesaukee in the winter.
After a full day soaking in the views of the forests around the lake on that August day, Jesse and two friends packed up their gear in the early evening and began the return trip to Hudson, which normally took just under two hours. However, fifteen minutes into their journey, they encountered vehicles backed up on I-93 just outside of Woodstock. A sign warned motorists of federal agents ahead. As they approached the checkpoint, which was situated ninety miles south of the border with Canada, another sign said IMMIGRATION CHECKPOINT, HAVE YOUR LICENSE READY.
When they finally reached the temporary Border Patrol checkpoint, an agent holding a machine gun asked if they were U.S. citizens. All three men were and responded, “Yes.” They also provided their driver’s licenses as the sign suggested. Jesse figured he had nothing to worry about. He had not been to Canada that day, or ever in his life. He had only left the United States once before, on a short vacation to the Bahamas when he was eight.
As Jesse and his friends answered questions about their citizenship, Mark Qualter, a Border Patrol K-9 Agent, walked around the checkpoint with Marian, a drug-sniffing dog. As Marian reached Jesse’s car, she sat down, signaling to Qualter that there was contraband in the vehicle. Qualter informed the first agent, who directed the vehicle to secondary inspection. At the secondary inspection, Agent Qualter told the three men to get out of the car, which they did. They left the doors open. Agent Qualter then took Marian around and through the vehicle. She jumped in the trunk, climbed inside on the seats and sniffed around, and circled the vehicle six or seven times. After fifteen minutes, Qualter finished the search but Marian did not locate any drugs.
At that point, Qualter got angry and began yelling at the men, “Where’s the fucking dope?” As he got right up in their faces, Jesse finally admitted there was some in the center console. Qualter screamed again, telling him to retrieve it from the vehicle. Jesse climbed in the front seat and pulled out a plastic container with a small amount of hash oil he used occasionally when vaping.
Jesse’s problems with the Border Patrol at an interior checkpoint, despite never leaving the United States, places him in good company. Rapper Lil Wayne’s two tour buses were driving north on highway 281 from McAllen, Texas, toward San Antonio on December 18, 2009, when the Border Patrol discovered a pound and a half of marijuana at the Falfurrias checkpoint. Singer Willie Nelson was on his tour bus headed east on I-10 on the Friday after Thanksgiving, November 26, 2010, when he was stopped at the Sierra Blanca, Texas, checkpoint with six ounces of marijuana. Rapper Snoop Dogg was driving east on I-10 on January 7, 2012, headed to San Antonio to watch his son play football in the Eastbay Youth All-American Bowl. He had a medical marijuana license for migraines and blurred vision when the Border Patrol found two ounces of marijuana in his car. Singer Fiona Apple had four ounces of hashish when she was driving east on I-10 in her tour bus on her way to concerts in Austin and San Antonio on September 19, 2012. Al Reinert, the screenwriter of the film Apollo 13, had two marijuana buds in a vial in his shaving kit when was driving east on I-10 in 2013.10
The most serious celebrity arrests at Border Patrol interior checkpoints were of the rapper Nelly, who was driving east on I-10 in his tour bus on October 10, 2012, and two football players, Greg Robinson and Jaquan Bray, who were driving from Los Angeles to Louisiana on I-10 on February 19, 2020. On Nelly’s tour bus, Border Patrol agents found a loaded .45 caliber handgun, thirty-six small bags of heroin, and ten pounds of marijuana. Nelly’s bodyguard, Brian Keith Jones, took responsibility for the items. Nelly denied any knowledge of the drugs and berated his bodyguard on Twitter for taking these risks. Greg Robinson, the second overall pick in 2014 NFL draft, who played tackle for the Cleveland Browns, and Jaquan Bray, who played for the Indianapolis Colts, had 157 pounds of marijuana in their SUV.
From 2005 to 2011, at the Sierra Blanca checkpoint on I-10, where all these celebrities were arrested except Lil Wayne, there were 2,500 drug arrests per year, or 7 per day. Of those arrests, 80 percent were American citizens and 88 percent were for small amounts that were minor possession charges. Federal prosecutors in Texas have long opted not to prosecute small drug possession cases. Consequently, the Border Patrol would call up the local sheriff in Sierra Blanca and turn the cases over to them. Sierra Blanca, however, is not a major metropolis that can house and prosecute over 2,000 drug cases per year. The town has no stoplights and a population of only 764 people. Instead, Arvin West, the Hudspeth County Sheriff, would allow the individual to plead guilty to a drug paraphernalia charge, thus not admitting to actually possessing any drugs. The citation only included a fine of several hundred dollars. Willie Nelson, Snoop Dogg, Al Reinert, and thousands of other unsuspecting motorists paid up and were back on their way within a few hours.11
Back in New Hampshire, the Border Patrol knew that the U.S. Attorney’s office, which handles federal prosecutions, would not prosecute drug possession charges for small amounts like those that Jesse Drewniak had. Rather than just not search for small amounts or ignore it if they found it, the Border Patrol again turned to the local police. Prior to the checkpoint operation on I-93, the Border Patrol emailed local New Hampshire officials in order to ensure officers were on hand for small amounts of drugs: “When we do the checkpoint we will probably have some personal use seizures. Our federal attorney will not prosecute that amount of marijuana. Do your guys or local police still ticket for this type of thing?”12
The Woodstock Police Department did ticket for this type of thing and stationed officers at the checkpoint with the Border Patrol. As Jesse’s case went to trial, the police department said the officers were not there simply to cite for small drug seizures. Instead, in the court filings they claimed the department stationed officers at the checkpoint in case someone “has a heart attack” or “if there is a child that needs to be delivered.”13 These contingencies did not occur, but the Woodstock police did make many drug possession arrests. In total, the Border Patrol’s three-day operation in August 2017 resulted in thirty-three drug citations, all but two of which were for small amounts. The Border Patrol made twenty-five immigration-related apprehensions, mostly for people overstaying legal visas. These sorts of immigration violations are not under the purview of the Border Patrol, whose authorization is for stopping people who recently crossed the border clandestinely. None of the individuals apprehended for immigration violations at the Woodstock checkpoint had crossed the border from Canada.
Jesse’s case, along with over a dozen of the other small drug seizures from the Woodstock checkpoint operation, was taken up by the American Civil Liberties Union of New Hampshire. Gilles Bissonnette, the ACLU lawyer handling the cases, thought the use of the dogs was absurd: “They claim [the dogs] are designed to detect human smuggling when really what they do in practice is detect for drugs. That’s what this case is about at the end of the day. It is really the Border Patrol using the so-called immigration authority as a ruse to do drug enforcement, which we think violates the Fourth Amendment.”14
Bissonnette and the ACLU successfully argued that the searches were illegal under New Hampshire law and the evidence was suppressed. The judge handling the case found that, “while the stated purpose of the checkpoints . . . was screening for immigration violations[,] the primary purpose of the action was detection and seizure of drugs.”15 The judge ruled that any evidence from Border Patrol checkpoints produced by drug-sniffing dogs was inadmissible in New Hampshire because it violated a state law prohibiting the random use of dogs.
The Border Patrol claims that the dogs are trained to locate people hiding in trunks. However, in Jesse’s case in New Hampshire, the Border Patrol dog handler admitted that in his entire seventeen-year career, none of his dogs had ever found a concealed human in a car. Only drugs. Jenn Budd, a former senior Border Patrol agent, said that in her six years on duty she never saw a dog hit on a vehicle for humans. “They have nothing to do with immigration. A dog can’t tell you if the person in the back seat is legally here or not. They can’t tell you that, so I don’t understand why we use them.”16
In August 2020, the ACLU and Jesse decided to sue to the Border Patrol and the agents involved for violating his Fourth Amendment rights. The new filing emphasized that the 1976 Martinez-Fuerte ruling did not authorize unlimited interior Border Patrol checkpoints. Instead, it authorized checkpoints when specific conditions were met, which required that the Border Patrol demonstrate that the route was used by people who had crossed the border and were headed to the interior. Additionally, the Border Patrol needed to show that the efficacy for immigration checks outweighed the violation of Fourth Amendment rights. Bissonnette explained, “They need to be able to prove efficacy here and they need to prove they are actually stopping people crossing the border to get into the interior of the country. I just don’t think they’ll be able to prove that.”
Refusing to Comply
Terry Bressi, the University of Arizona astronomer, pulled into the Border Patrol’s interior checkpoint on SR 86 at 5:12 p.m. on Monday April 10, 2017, on his way home to Tucson from the Kitt Peak Observatory. It was the 383rd time Terry had been stopped at the checkpoint. After his 2001 experience with the tribal police, Terry decided that he had to record every interaction at the checkpoint. He stopped driving the university vehicle and added cameras to his own truck. By 2017, he had cameras in place on all four sides, recording every trip through the SR 86 checkpoint. He promptly posts the videos online.17
On that Monday evening, Terry’s silver pickup truck settled into the queue behind a man riding a Harley with a black bandana and red and black plaid shirt. As they proceeded toward the checkpoint, Terry filled the time with a commentary about the relationship between the Border Patrol and the local Pima County Sheriff’s Office. Just as they enlisted the Woodstock Police Department for the checkpoint in New Hampshire, the Border Patrol also regularly worked with the Pima County sheriff in Arizona. However, in Arizona, the relationship was more formal and used a national Department of Homeland Security funding program called Operation Stonegarden to pay the salaries of the deputies while they were stationed at the checkpoint.18 Funding from the program can be used for overtime, travel, per diem, and vehicle rentals but only to supplement, not replace, the local police budget. From 2008 to 2017, $541.5 million was awarded to local police in twenty-two states and territories through the program.19 The 2019 fiscal year allocation was $90 million.
In the April 10, 2017 video, Terry explained that Stonegarden was just another example of how the Border Patrol expanded the purpose of the checkpoints beyond simply immigration into general law enforcement stops, which they were not supposed to do. Terry had no way of knowing that his point was about to be proved.
As Terry nears the checkpoint, orange barriers come into view along with several Border Patrol vehicles parked on either side of the road. The Harley rider pulls to the front of the queue, awkwardly maneuvering his bike over the speed bumps the Border Patrol has installed on the highway. Terry points out a Pima County Sheriff’s deputy vehicle parked among the Border Patrol vehicles, indicating a local police officer is working at the checkpoint that day. Having been through the checkpoint so many times, he knows many of the agents and they know him. The Martinez-Fuerte ruling said, “Motorists whom the officers recognize as local inhabitants, however, are waved through the checkpoint without inquiry,” but Terry’s experiences showed that was not always the case.
The biker seems to be having a problem with the agent, and he is gesticulating wildly as he explains what brought him to that place. Terry notes that it is Agent Lopez conducting the interrogation. Lopez stands in the center of the road under a small shelter with a corrugated metal roof. After about fifteen seconds, Agent Lopez is apparently not satisfied with the biker’s answers and waves him into secondary inspection on the side of the road. Lopez, who would have recognized Terry and waved him through, follows the biker over to secondary.
Terry waits for a new, unfamiliar agent to cross the road and staff the checkpoint. Terry pulls up to the stop sign but does not roll down the window. The new agent, young and trim in his green uniform with sunglasses and slicked-back hair, nods his head and leans in toward the window. He says, “U.S. Border and Immigration checkpoint, how you doing?”
The agent waits for an answer, but Terry does not say anything. The Martinez-Fuerte decision only said that the Border Patrol could set up the checkpoint and ask questions about citizenship. It did not say that the individual has to answer them. The Fifth Amendment of the Constitution protects the right to remain silent in interactions with law enforcement. For Terry, this strategy has produced mixed results. It is up to the agent to decide if they have articulable facts of reasonable suspicion to send Terry to secondary inspection or if he is free to go. A source in the Border Patrol sent Terry a 2012 policy memo that went to agents at the checkpoint that said, “A subject’s ‘bad attitude’ or refusal to answer questions, without more, does not constitute ‘reasonable suspicion’ and does not justify ‘detention.’” However, just as Terry is irritated about the fact that he has to stop, the Border Patrol agents are often irritated that Terry challenges their authority by refusing to roll down his window or answer questions. Sometimes the agents just wave him on. However, on other occasions, they hold him for minutes or even hours while they decide what to do.
The young Border Patrol agent appears uncomfortable as he sways back and forth while glancing in Terry’s back seat. The agent looks down as he says, “Hey, mind pulling over there for a second?” The agent finds a little resolve and points toward secondary inspection. “Pull over there for a second.”
Terry responds, “I do mind.”
The agent looks surprised and puts his hand to his ear as he leans closer to the car and says, “Excuse me?”
Terry looks at the agent’s nametag and says, “I do mind, Agent Frye.”
Although Agent Frye has literally just asked if Terry minded or not, he says, “I didn’t ask if you mind. Can you pull there for a second?” He keeps his arm pointed toward secondary inspection. “U.S. Border and Immigration checkpoint. Are you a United States citizen? Can you pull over there please?” The agent’s face is close to Terry’s camera. There are old acne scars on his cheeks. “Mind pulling over there, you are blocking traffic here.” Frye points to cars lined up behind Terry at the checkpoint.
Terry is amused. He replies, “You’re the one blocking traffic. Let me know when I am free to go, Agent Frye.”
Frye still has his hand pointed toward secondary as he says, “You are free to go when you answer my questions. It’s an immigration checkpoint and I am seeing if you are a United States citizen.”
Terry asks, “What law requires me to answer your questions, Agent Frye?”
Frye grimaces, looks down, and then again points to secondary. “Can you please pull over there?”
Terry is well known at the checkpoint. Typically, at this point a supervisor who recognizes him would give the junior agent a signal to cut him loose. Anticipating this, Terry turns his camera toward the larger shelter on the side of the road, but there is no supervisor there. There is only a Pima County Sheriff’s deputy in a brown uniform, with his hands on his hips.
Agent Frye steps to the front of Terry’s truck and calls over to the deputy, “Where did the supervisor go?” Agent Frye nervously shifts his weight back and forth and sighs as he waits for an answer. Instead of finding the supervisor, the middle-aged deputy, slightly rotund and bald with a generous mustache, makes his way over to join Agent Frye.
The deputy arrives at the driver’s side window with a bemused grin. The young Border Patrol agent, seemingly relieved not to be in charge, steps back and puts his hands in his pockets. Terry does not give the deputy a chance to ask any questions. Instead, he asks the deputy, whose name is Ryan Roher, if he is working with the Border Patrol on a Stonegarden grant, which pays him overtime to be stationed at the checkpoint.
Roher says, “Yes, I am.” Roher then confers with Agent Frye and then says to Terry, “OK, I need you to pull into secondary or answer his questions.”
Terry replies, “Why’s that? Who is detaining me right now?”
Roher says, “I am.”
Terry chuckles and says, “So you are operating at this federal Border Patrol immigration checkpoint?” Roher steps in closer, looks back and forth, and sighs. Agent Frye steps farther back. Terry asks, “You have jurisdiction to enforce federal immigration laws?”
Roher says, “I’m not going to argue with you. You understand you are blocking the roadway, correct?”
Terry points toward to Border Patrol Agent Frye and says, “He’s blocking the roadway. I’m ready to go.”
Roher grimaces and says, “OK, sir, I’ll let you go.”
Terry says “Thank you” and starts to pull away.
Behind him, Deputy Roher trots across the road and jumps into his patrol car. Terry slowly leaves the immediate checkpoint area and then pulls over to the side of the road as Roher’s patrol car pulls in behind him. Trucks passing on the highway slow down to get a look at what is going on. Roher parks and then comes to Terry’s window and tells Terry to step out of the car.
Terry asks, “Why?”
Roher gets angry and yells, “Sir, step out of the car!” Terry does.
Roher asks for his driver’s license. Terry is indignant and keeps asking questions. Roher finally says, “Driver’s license, sir, or you’re going to end up in handcuffs and go to jail.” Terry hands him the license. By that point, several of the Border Patrol trucks have pulled in behind Roher’s patrol car and the agents are observing the interaction. Roher asks Terry a series of questions and Terry does not respond to any of them. Roher then says, “OK, I’m going to ask you to turn around and put your hands behind your back please.” Terry complies as Roher puts on handcuffs and asks Terry to sit on the hood of the car. Terry instead sits on the ground as a cloud of dust kicks up around him.
As Roher calls in the arrest to dispatch, Terry starts to talk to the Border Patrol agents. He stands up to have the conversation, and Border Patrol Agent Lopez grabs him by the arms and tries to get him to sit again. Eventually Lopez relents as Terry explains that Deputy Roher asked him to sit on the hood in the first place. Terry tells the Border Patrol agents that was assault.
Roher returns and says, “So, Mr. Bressi. The reason you are in handcuffs right now is you were blocking the checkpoint. OK?” Roher has a habit of smirking and sticking his neck out each time he says “OK?” He continues, “It is a public road. OK? I gave you a lawful order.”
Terry interjects, “It is a federal immigration checkpoint and I was being detained by federal officers for federal immigration purposes. Not Pima County purposes.”
They banter back and forth before Roher finally sticks his neck out and says, “This is outstanding. I’ve never met you before.” Roher continues, “So right now, you are under arrest. You’re going to go to jail. OK? You’re blocking a roadway and you cannot do that. The Border Patrol agents are friendly. You come through here every day.”
Roher starts to smile.
“I know you do. I’ve seen your videos. And they’re awesome, by the way. But the bottom line is you can’t block the roadway.”
Terry says, “Thanks for admitting you’ve seen my videos.”
Roher says, “Absolutely. It is impressive. I have no problem with what you do. But the bottom line is you can’t block the roadway.”
“You Can Go Out and Stop as Many Cars as you Want”
Terry’s arrest by Deputy Roher at the Border Patrol checkpoint on SR 86 raises the issue of why local police are even present at what is supposed to be a federal checkpoint limited to immigration enforcement. Since 2005, Terry has been stopped at the Border Patrol’s interior checkpoint on SR 86 a total of 574 times. In none of those 574 stops has the Border Patrol charged him with anything. The arrest in April 2017 by Deputy Roher was the fourth time Terry was cited by a local police officer at the checkpoint, but the first time he was handcuffed for a criminal charge. The previous three were civil traffic infractions that were dropped by the courts.
In the process of discovery for the April 2017 arrest, Deputy Roher submitted to a deposition. It did not go well for him. Roher stated that he loved being stationed at the checkpoints because he was paid overtime for the work and he could do his favorite thing: give citations to motorists. The lawyer asked if the Border Patrol ever gave him any direction about what he was supposed to cite for, since it was an immigration checkpoint, after all.
Roher said no. “I don’t know that I’ve ever received any specific training or anything like that.” Instead, he said, “So, the way I have understood it is our goal is to go out and do as much, do as many traffic stops as possible. Do enforcement as needed. Do—go find drugs, go find people, go find money.” He continued, “Now, because I’m a traffic deputy and I enjoy stopping cars and doing enforcement, Stonegarden is kind of natural for me. So, if somebody says to me ‘Hey, you can go out and stop as many cars as you want,’ woo-hoo!”
Later in the deposition, Roher bragged, “I can stop as many cars as I want. And so part of Stonegarden for me is just the, the part of the joy of being able to do that.” He said his personal record was thirty citations in a single shift at the immigration checkpoint.
After Roher’s deposition, Pima County dropped the charges against Terry for blocking the roadway. Additionally, but not directly related to Terry’s case, the Pima County Board of Supervisors decided in 2020 to withdraw from Operation Stonegarden and stop taking funding to do immigration enforcement.20 Terry filed a civil rights complaint against Deputy Roher, Agent Frye, the Border Patrol agent who initially detained him at the checkpoint, and Agent Lopez, who manhandled him while he was in handcuffs on the side of the road. The case is ongoing.
What connects Terry’s case with Jesse Drewniak’s, the New Hampshire litigation about drug-sniffing dogs, is the question of whether the checkpoints continue to serve a legitimate immigration policing purpose. In Martinez-Fuerte, the Supreme Court decided that the specific checkpoints they considered did. However, Border Patrol interior checkpoints have evolved into something else entirely, accounting for only a small fraction of immigration apprehensions but the majority of drug busts for the agency.
In 2000, the Supreme Court ruled in City of Indianapolis v. Edmond that general checkpoints “whose primary purpose is to detect evidence of ordinary criminal wrongdoing” are not allowed. Instead, the court found that checkpoints need a specific stated purpose that limited them to tasks like immigration policing or drunk driving prevention.
Although the Border Patrol checkpoints are officially about immigration, in practice they seem to operate as exactly the type of general law enforcement checks that were banned by the Supreme Court in 2000. The internal Border Patrol checkpoints are used for drug interdiction, DEA license plate checks, radiation searches for dirty bombs, and by local police officers like Deputy Roher who want to give as many citations as possible for traffic infractions. This is not what Lewis Powell and the Supreme Court authorized in the 1976 Martinez-Fuerte case.
There have been congressional efforts to move the checkpoints closer to the border. Vermont senator Patrick Leahy was stopped at an interior Border Patrol checkpoint in 2008 and in the years since has attempted to pass legislation to restrict checkpoints and roving patrols to within twenty-five miles of the border. The smaller border zone was part of the comprehensive immigration reform bill that passed the Senate in 2013 with bipartisan support, but was never brought to a vote in the House of Representatives. Leahy continued to introduce bills to reduce the size of the one-hundred-mile zone every year since.21 Only time will tell if the Congress or the Supreme Court will decide to revisit the Border Patrol’s checkpoints and their continued hollowing out of the Fourth Amendment protections against unreasonable searches and seizures.
In many ways, however, Patrick Leahy, Terry Bressi, and Jesse Drewniak were lucky. They experienced the authority of the Border Patrol to operate deep inside the United States, but they did so as white, male, American citizens. For millions of Brown or Black Americans, their experiences with the Border Patrol can be far worse.