Cannabis Check

With six Customs and Border Protection checkpoints situated well north of the boundary between the US and Mexico, cannabis producers are finding it difficult to transport their products to testing facilities and retail centers throughout the state.

That’s because business owners say federal agents are harassing employees who attempt to make it through a customs stop with marijuana, cash or both on board.

Operators big and small have poured piles of cash into the chance to thrive and profit off the new recreational cannabis industry, with adult-use sales set to begin Friday. However, the federal government’s refusal to let green thumbs slide has put Southern New Mexico producers at a disadvantage.

US Customs and Border Protection stops are not located solely on the country’s dividing lines. Instead, so-called interior checkpoints are set up farther north than some may expect—anywhere within 100 miles of the border. While not as populated as northern regions of New Mexico, the southern portion of the state has communities exploring their own interests in the cannabis market.

The feds have their own agenda.

“Although legal medical and/or recreational use in many states, marijuana is classified as a Schedule 1 controlled substance under federal law,” CBP spokesman Landon Hutchens writes in an email to SFR. “Therefore, US Border Patrol agents will continue to take appropriate enforcement action against those who are encountered in possession of marijauana anywhere in the US.”

A lack of testing facilities south of the checkpoints has made it difficult for people like Robbie Tafoya, of Desert Flower Growers LLC, to get their products ready for the consumer.

“The Border Patrol is doing their job, but the border checkpoints should be at the border,” says Tafoya. “They shouldn’t be in the middle of our state.”

The half-dozen permanent, inland checkpoints create a barrier for anyone attempting to travel north from places such as Las Cruces or Columbus and for anyone living in the Otero, Eddy or Lea county areas. The Border Patrol is also known to set up temporary stops throughout Southern New Mexico.

“Any direction you go, you’re going to hit one,” says Nia Rucker, policy counsel and regional manager of the American Civil Liberties Union office in Las Cruces.

The purpose of the interior checkpoints is to allow the feds further immigration checks, as well as drug interdiction, which is where cannabis comes into play. However, border agents are only supposed to ask questions about a traveler’s citizenship.

Rucker, who formerly worked for the US Federal Public Defender office, says the agents will go further in their line of questioning, though.

Agents might ask a traveler where they’re headed, where they’ve come from, what they’re carrying and whether they have a driver’s license.

“Driver’s licenses don’t have anything to do with your status of citizenship and it’s not appropriate for them to be asking for that,” Rucker says. “But some people either don’t know or they’re scared, or they’re bullied into giving their driver’s licenses over.”

Refusing to answer a border agent’s questions might get a driver pulled over into the secondary area at a checkpoint, where agents typically conduct vehicle searches.

To begin a search, agents must have reasonable suspicion a crime is being committed. According to Rucker, somebody may “look suspicious” and have their car ripped apart by agents. Looking away when asked a question could get someone pulled over, for example, and K-9s that alert on a vehicle will trigger a search, although many have questioned the efficacy of using police dogs to sniff out cannabis or other narcotics.

“Dogs can be trained for this, but the way dogs are being used is inappropriate and they’re not trained properly to really detect drugs,” Rucker says. “I’ve also suspected that they’re more in tune with what their handler is looking for.”

So sending cannabis through a checkpoint is a good way to catch the attention of Border Patrol agents. Companies have seen product confiscated, cash seized, and employees treated like criminals for trying to make it through with a shipment.

Ultra Health CEO Duke Rodriguez has seen a few pounds snatched away and about $25,000 in cash seized, which “is lost forever,” he says. The most painful of the consequences has been the detainment of his employees, though.

“These employees were unfairly harassed, to the point one of them was placed in handcuffs,” Rodriguez tells SFR. “They were all detained and they were threatened with incarceration and charges.”

In one instance, an employee had money taken from their own wallet, with agents alleging it was tied to the cannabis being brought through. Employees have been brought to tears and one has quit their job at Ultra Health over the incidents. Rodriguez and his team have since given their drivers cards—drafted by legal counsel—to hand over to agents when stopped. They’ve also developed other, legal routes to get around the checkpoints. And still, they have company trucks pass through the sites regularly, although Rodriguez won’t say if they carry cannabis.

Ultra Health is the state’s largest cannabis company, with a large portion of its facilities in Southern New Mexico. Such interruptions to business are something the company can withstand, but others aren’t as secure.

“I think for the smaller operators, it could make the difference whether they survive or not survive,” Rodriguez says. “For a company of our size to lose $25,000, it’s not an easy pill to swallow. For a smaller operator, it’s their margin to pay the rent or not. It’s painful for us; it’s devastating for them.”

Hemp is another story.

Since the federal legalization of hemp in 2018′s Farm Bill, agents at the ports have asked drivers for documentation stating the plant was legally grown. The New Mexico Department of Agriculture tests harvests to determine whether they’re in compliance, a standard set at 0.3% THC or less. But even this can cause problems for farmers.

“I think nationwide the push has been to raise that to 1% by the hemp industries,” says Brad Lewis, agriculture and environmental services director for the state. “I think, although the breeders are working to that 0.3% and under, there’s still variables that can push that level above that 0.3%—stress, water, irrigation, temperature, and those types of things that are beyond their control.”

But at least they can get their product through. For now, small-grow, recreational operations like Desert Flower will remain wary, and hope that state partners will help facilitate more cooperation between cannabis companies and the federal government.

“At this point, we’ve done everything a small business could do,” Tafoya says. “We cannot risk our license for something that should already be corrected. That would be a travesty, because we’ve been waiting over 10 years to try and do this.”