RIGHTS AT RISK AT MICHIGAN CHECKPOINTS

Under New Laws, Federal Agents Have More Power In All Border States

FALFURRIAS, Texas -- In the moments before he was arrested for the 7 pounds
of marijuana stuffed under the hood of his Chrysler Fifth Avenue, Jose
Rodriguez had done nothing more than look, well, guilty.

He hadn't been swerving or speeding down the lonely Texas highway he was
traveling when a federal agent stopped him. The agent asked about his
citizenship and travel, intently watching Rodriguez -- smile tightening,
knuckles whitening, right knee bouncing.

Bubba, a Labrador retriever trained to pick up the scent of drugs, circled
the car. Later, federal agents swarmed through the Chrysler's red velvet
interior. They removed every tool from a toolbox in the trunk, and lowered a
fiber-optic camera into his gas tank in search of more drugs.

Finally, Rodriguez was arrested for drug possession and turned over to the
local sheriff.

"I wasn't doing anything," he said, as agents led him to an interrogation
room. "It's not fair."

But it's perfectly legal. Rodriguez was stopped at a border patrol
checkpoint 70 miles north of the Mexican border, like the ones that started
popping up for the first time in Michigan last month.

Unlike local and state police agencies, federal border patrol agents at
checkpoints do not need probable cause or a traffic violation to stop and
question drivers. Though the checkpoints can be as far as 100 miles from an
international border or shoreline, they are, in many ways, legal extensions
of international border crossings where the rules are different. In
Michigan, that 100-mile checkpoint zone encompasses most of the state.

Border patrol officials in Michigan said that for now, they have no plans to
set up checkpoints beyond 25 miles of the shoreline. So far, the checkpoints
are confined to areas around Port Huron and Trenton. And unlike Southwest
border checkpoints, there are no drug-sniffing dogs at Michigan checkpoints
because of a lack of resources.

"You have very few constitutional rights at checkpoints," said Barbara
Hines, a professor at the University of Texas School of Law.

A 1993 Michigan Supreme Court decision that ruled sobriety checkpoints were
unconstitutional does not prevent the border patrol from setting up its
checkpoints. But, unlike in the Southwest, local police cannot work at
border patrol checkpoints.

However, the U.S. Supreme Court has ruled border patrol agents can stop and
question individuals based on an array of indicators, including behavior,
race and proximity to a border.

"Those standards are much harder to meet if you're driving down the road in
Kansas City," Hines said.

In other words, some constitutional rights of millions of Michiganders are
weaker than those of U.S. citizens who live in the interior of the country.

This may seem shocking to those who live near a U.S.-Canada border that was,
before Sept. 11, given little thought. But it has been a way of life for
those along the nation's Mexican border. Texans, for instance, have been
stopped at border patrol checkpoints within their state since the early
1920s. Much of the case law that sets the guidelines for checkpoints in
Michigan has come out of Texas, California and Arizona.

Checkpoints Defended

While the announcement of the new checkpoints in Michigan stirred the Arab
community's fear of racial profiling, the Hispanic communities on the
southern border say they have been dealing with racial profiling for
decades.

Civil-rights advocates in southwestern states warn that border tactics have
often bulldozed rights of U.S. citizens, especially minorities. They point
to complaints of abuse and lawsuits as a result of checkpoint stops.

Meanwhile, federal officials point to the large number of drug and alien
smuggling arrests they make at checkpoints and say law-abiding Americans and
legal residents have nothing more to fear than a minor traffic delay.

"We take a lot of drugs and other illegal activities off the streets," said
Gerald Murray, the border patrol agent who supervises the Falfurrias
checkpoint.

Last year, 856 U.S. citizens were arrested at the Falfurrias checkpoint,
mostly on drug charges, according to U.S. Border Patrol records. Most were
handed to local sheriff's departments for arrest and prosecuted locally.
>From October 2001 to September 2002, checkpoint agents seized 82,832 pounds
of marijuana, 4,620 pounds of cocaine and 1,905 ounces of heroin, border
patrol records show. The checkpoint catches from 1,000 to 1,800 illegal
aliens each month from Mexico and Central American countries. In October,
agents deported 1,085 illegal immigrants.

"This is the last line of defense right here. This is it," said Richard
Kirkpatrick, a special agent with the South Texas Specialized Crimes and
Narcotics Task Force. The task force, made up of local police and sheriff's
departments, works with the Falfurrias federal agents on drug cases.

Answering critics who say Hispanics are stopped and searched far more often
than whites, agents say that they stop drivers based on behavior, not
ethnicity or race.

"You learn to read people and spot certain things," said Clint Ilges, the
agent who stopped Rodriguez. "Are they nervous? Sometimes it's the way they
look at you -- or the way they're not looking at you."

And once drug-sniffing dogs alert agents to drugs, they have probable cause
to search a car.

"Dogs don't racial profile," said agent Joshua Carter, who handles Bubba,
the drug-sniffing black Lab who works the checkpoint.

Federal officials note that despite lawsuits, most of their searches have
been upheld in the courts, and the laws that allow them have never been
overturned.

Critics Say Power Abused

But critics say the laws are too vague and give individual agents too much
power.

"Border patrol pushes the envelope on the law. It's a system ripe for
abuse," said Lee Teran, a professor at St. Mary's University School of Law
in San Antonio, and an immigration law specialist who works on border
issues. Checkpoints in Texas began as random, occasional stops with a few
agents and traffic cones. They have evolved into permanent, 24-hour
operations. The Falfurrias checkpoint has an office with computers, two
large holding cells and several smaller interrogation rooms. The computers
can scan fingerprints against criminal and terrorism databases.

Outside, agents stop traffic. The agents let most cars pass with one or two
questions but pull some drivers over for further questioning and search if
the drug-sniffing dog alerts agents to drugs. Sometimes agents rely on their
judgment based on how a driver responds to questions.

Those questions can include: Where are you going? What are you doing there?
Where are you coming from? Have you been in Mexico today? What do you do? Is
there anything in your trunk?

Federal law says drivers are obligated to answer questions about
citizenship. If a driver or passenger refuses, the agents can detain them
until they get an answer. Patrol agents at checkpoints are not allowed to
search cars without the permission of the driver, or without probable cause.

Patrol agents can run drug-sniffing dogs around a car without the permission
of the driver. If the dog alerts them, agents can search without permission.

Few drivers stopped at the Falfurrias checkpoint complained, and some said
they felt more secure with the checkpoint there.

"I think it's great," said Dennis Cox, who drives a lot for work and often
passes through checkpoints. "These guys are doing their job. They're keeping
a lot of bad stuff from going north."

Residents Protect Selves

The people of one Texas bordertown responded with a law of their own. In
1999, El Cenizo, a dusty speck on the map just steps from the Rio Grande,
passed the Safe Haven Ordinance, prohibiting town employees from talking to
border patrol agents about the immigration status of any of the town's 5,000
residents.

At the time, El Cenizo was already infamous as the nation's first community
to make Spanish the official language at town meetings. The border patrol
ordinance received little attention.

But three years after the law passed, lawyers say it is perhaps the most
daring piece of legislation to challenge current homeland security tactics.

It hardly seems a place set to challenge the legal might of the federal
government. More an impoverished neighborhood than a town, the community is
a patchwork of barely furnished trailers, modest homes and dirt roads.

Border patrol agents previously stopped the one bus in and out of town to
check for illegal aliens. Once, when El Cenizo resident Rafael Rodriguez was
on the bus, he saw border patrol agents remove a woman and her sick young
daughter. She was taking the girl to the doctor, he said. Instead of
helping, the agents sent them back to Mexico.

"I became indignant," Rodriguez said. So, Rodriguez, who understands but
does not speak English, took action: He ran for mayor, won, consulted a
lawyer, and passed the ordinance.

Since then, the relationship the town has with border patrol has improved,
residents said. Agents still patrol but don't stop the bus. They discuss
issues with local leaders.

"Many times because of fear, one does not speak up," said Rodriguez, now
retired. "Any community can stand up for itself as long as you are legally
supported."