Since President Donald Trump launched his election campaign in 2015 he has repeatedly raised concerns about drugs from Mexico flowing into the United States, even going so far as to make drug smuggling a central pillar of his argument for increased border enforcement.
Yet data from federal agencies suggest that the illegal trafficking of the southern border’s most abundant narcotic — cannabis — is at its lowest point in more than a decade. In fact, border enforcement data obtained by Cannabis Wire, as well as watchdog reports, illustrate how much of the enforcement work done by US Customs and Border Protection (CBP) involves petty, domestic cannabis violations — raising questions for some about whether the agency is overstepping its mandate to “safeguard America’s borders” and protect “the public from dangerous people and materials.”
Among Cannabis Wire’s findings:
- At checkpoints, the traffic stops set up to enforce immigration law, data suggest that it’s more common for US Border Patrol agents to seize cannabis from US citizens or legal residents than from deportable immigrants.
- At “ports of entry” into the country, including border crossings, seaports, and airports, data suggest that CBP agents confiscate cannabis from US citizens more often than from foreign nationals.
Despite repeated outreach from Cannabis Wire over a two-week period, Customs and Border Protection did not respond to requests for comment about the findings in this story.
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Customs and Border Protection has seen a six-year, near-consistent annual decrease in the volume of cannabis seized by two of its main branches, the Border Patrol and the Office of Field Operations, at the US-Mexico border.
The Border Patrol is the branch of Customs and Border Protection tasked with catching unauthorized migrants who enter the US in between official ports of entry, including those trafficking in drugs, such as “backpackers” who transport cannabis as a way of paying smugglers to get them across the border.
At the Border Patrol’s southwestern sector — which includes California, Arizona, New Mexico, and Texas, and where roughly 85 percent of the force’s cross-border drug incidents occur every year — the annual amount of cannabis agents have seized has dropped by about two-thirds, from more than 2.5 million pounds in fiscal year 2011 to roughly 850,000 in 2017. The most significant regular decreases began in 2014, the year Washington and Colorado became the first states to legalize cannabis and launch regulated sales.
In a typical year, other drugs like cocaine, heroin, and fentanyl combine to make up about 1 or 2 percent of the drugs seized by the Border Patrol by weight: anywhere between 18,000 and 26,000 pounds. In 2017, the Border Patrol saw a small spike, to 34,500 pounds.
Meanwhile, the Office of Field Operations, the branch of Customs and Border Protection responsible for catching trafficking at official ports of entry — when professional smugglers try to drive through border-crossings with bundles of cannabis hidden in the nooks of their cars, for example — has seen its nationwide annual cannabis haul cut nearly in half since 2009. The numbers dropped from about 686,000 pounds to 362,000. More than 90 percent of this haul comes from southwestern border offices every year.
Before 2016, Field Operations seized roughly 45,000 pounds of cocaine and heroin per year. In 2016, that number (plus fentanyl) rose to about 57,000 pounds, and 2017 saw 67,000 pounds in seizures.
Such a dramatic drop in cannabis smuggling activity is likely due to a nationwide shift in demand from typically lower-quality Mexican cannabis to higher-quality American-grown cannabis, a shift that has taken place in part as a result of state-by-state legalization, making cannabis more readily available to consumers. In fact, the dynamic has shifted to such an extent that trafficking-related violent crime is down in US states bordering Mexico. Federal drug enforcement agents have even been seizing speciality-strain American cannabis destined for Mexican consumers.
However, while Customs and Border Protection is seeing less marijuana making its way into the United States from Mexico, its agents are still enforcing the small-time, domestic cannabis crimes within its purview.
The Border Patrol at traffic checkpoints
The Border Patrol has broad search and seizure power within its area of authority, which includes any US land within 100 miles of a border or coast. (A recent analysis by CityLab showed that 65 percent of the US population lives within this 100-mile outline.) And one of the force’s main methods of policing this zone is the implementation of traffic checkpoints.
The legal justification for the Border Patrol’s use of checkpoints centers on efforts to arrest unauthorized immigrants who slip past the front lines of patrolling officers; by law, the motivation for setting up a Border Patrol checkpoint must be immigration enforcement. However, if Border Patrol agents find drugs, weapons, or seizable cash in the process of conducting an immigration-focused traffic stop, they have the authority to confiscate it (this includes cannabis, even in states where recreational use is legal).
In practice, checkpoints appear to boost the Border Patrol’s confiscation hauls much more than they do their immigration-related arrest numbers: According to a November 2017 report from the Government Accountability Office (GAO), an internal government watchdog agency, only 2 percent of the Border Patrol’s immigration-related arrests near the southwestern border occur at checkpoints, as opposed to 43 percent of its seizures.
Domestic cannabis seizures are a particularly common result of the Border Patrol’s traffic stops. According to data from the GAO report, out of all confiscations that took place at Border Patrol checkpoints between 2013 and 2016, around six in ten involved an agent seizing cannabis from a US citizen.
At least 40 percent, or more than 12,000 seizures, involved the confiscation of an ounce or less of cannabis from a US citizen.
Furthermore, Border Patrol data acquired by Cannabis Wire through a Freedom of Information Act request suggest that only a small minority of all the force’s cannabis seizures — at checkpoints or otherwise — involve unauthorized immigrants. From 2013 to 2017, 83 percent of the Border Patrol’s nationwide marijuana seizures (for which a specific “subject” was recorded) involved confiscating cannabis from a US citizen or “non-deportable” migrant. (This statistic should be taken with a grain of salt: After cross-referencing the FOIA data with publicly available numbers, it appears as though a “subject” was recorded for only around half of the Border Patrol’s annual cannabis seizures during those years, reinforcing another GAO conclusion: that the force is plagued by “long-standing data issues.”)
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The line between immigration enforcement and thinly-veiled federal drug stops was put to the test in August and September 2017, when Border Patrol agents set up checkpoints, including one outside of a festival in a New Hampshire town about ninety miles from the Canadian border. At the stops, agents used narcotic-sniffing dogs to find drugs (mostly cannabis) on dozens of drivers, and then proceeded to hand the drivers over to local law enforcement for misdemeanor prosecution.
When eighteen of the individuals, represented by the American Civil Liberties Union of New Hampshire, sued Customs and Border Protection, a state court decided that the checkpoint, as well as the drug-enforcement collaboration between the Border Patrol and local police, violated both the New Hampshire state constitution and the Fourth Amendment shielding against unreasonable search and seizure.
In a comment to The New York Times shortly after the case’s conclusion, a CBP official said that the New Hampshire decision “does not affect the US Border Patrol’s federal authority to conduct immigration checkpoints.” But Gilles Bissonnette, legal director of the ACLU of New Hampshire, said he hopes that the case makes it clear that the Border Patrol isn’t above the law, and that the authority granted to the force to conduct traffic stops doesn’t provide a workaround for due process.
“This is really tantamount to living in a police state,” Bissonnette told Cannabis Wire. “As Americans we don’t expect — rightly so — as we’re going about our daily business, to be stopped, detained, and questioned without any reasonable suspicion or probable cause that we’ve committed a crime. But that’s what happens at these checkpoints.”
At ports of entry, too, small-time American offenders get busted
Border Patrol checkpoints aren’t the only places where customs and border officials are busting people, including citizens and legal residents, for small-quantity cannabis possession. Data obtained by Cannabis Wire from the Office of Field Operations, the Customs and Border Protection agency responsible for enforcing customs and immigration regulations at ports of entry (which include border crossings, seaports, airports, and a few pre-clearance stations abroad) suggest that its agents are confiscating cannabis from more US citizens year after year, while making fewer big busts.
In fiscal year 2017, Field Operations officials conducted 10,644 cannabis seizures, up about 20 percent from 2012. Meanwhile the average size of those confiscations has decreased. They averaged about 34 pounds in 2017, while in 2012, the average cannabis seizure was 62 pounds, indicating that, on a spectrum from single joints to large smuggling hauls, agents seem to be coming across more on the smaller end.
According to numbers Cannabis Wire obtained through a FOIA request, a significant proportion of those increased confiscations come not from foreign smugglers, but from US citizens. From 2013 to 2017, between six and seven out of every ten cannabis “incidents” at ports of entry for which the nationality of the subject was recorded involved a US citizen. Between one and two in ten involved a Mexican citizen.
Furthermore, these seizures are increasingly coming from areas far away from the US-Mexico border: The percentage of port-of-entry seizures coming from southwestern border offices dropped from 43 percent to 24 percent between 2012 and 2017.
As with the Border Patrol FOIA numbers, these data could be be affected by Customs and Border Protection’s record keeping issues: The nationality for around 40 percent of each year’s marijuana seizures is listed as “?”.