Drewniak v. U.S. Customs & Border Prot.

• Decision Date: 08 April 2021
• Docket Number: Civil No. 20-cv-852-LM
• Citation: 554 F.Supp.3d 348
• Parties: Jesse DREWNIAK v. U.S. CUSTOMS AND BORDER PROTECTION et al.
• Court: U.S. District Court — District of New Hampshire

554 F.Supp.3d 348

Jesse DREWNIAK

v.U.S. CUSTOMS AND BORDER PROTECTION et al.

Civil No. 20-cv-852-LM

United States District Court, D. New Hampshire.

Signed April 8, 2021

Scott H. Harris, Steven J. Dutton, Jeremy T. Walker, McLane Middleton, Manchester, NH, Albert E. Scherr, IV, Self, Henry Klementowicz, SangYeob Kim, Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH, Emma Bond, American Civil Liberties Union Foundation, Portland, ME, Lia Ernst, American Civil Liberties Union, Montpelier, VT, Mark L. Sisti, Sisti Law Offices, Chichester, NH, for Jesse Drewniak.

Gilles R. Bissonnette, Henry Klementowicz, SangYeob Kim, American Civil Liberties Union of New Hampshire, Concord, NH, for Sebastian Fuentes.

Michael T. McCormack, Robert J. Rabuck, US Attorney's Office, Concord, NH, for US Customs and Border Protection, US Border Patrol, Robert N. Garcia.

ORDER

Landya McCafferty, United States District Judge

Plaintiff Jesse Drewniak brings this suit against U.S. Customs and Border Protection, U.S. Border Patrol,¹ Chief Patrol Agent Robert N. Garcia of the Swanton Sector of the U.S. Border Patrol, and Agent Mark A. Qualter of the U.S. Border Patrol.² Drewniak alleges that defendants violated his Fourth Amendment rights by seizing him without reasonable suspicion at a traffic checkpoint erected for the primary purpose of discovering and prosecuting drug crimes. Drewniak sues Qualter in his individual capacity for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Drewniak sues CBP and Garcia for injunctive and declaratory relief, alleging that there is a substantial risk his rights will again be violated if CBP and Garcia are not enjoined from conducting additional checkpoints in New Hampshire.

Qualter moves to dismiss the claim against him pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting, inter alia, that it is not cognizable in a Bivens action. See doc. no. 19. CBP and Garcia separately move to dismiss Drewniak's claim against them pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that Drewniak lacks standing to seek injunctive and declaratory relief. See doc. no. 20. For the reasons discussed below, the court grants Qualter's motion (doc. no. 19) but denies CBP and Garcia's motion (doc. no. 20).

STANDARDS OF REVIEW

Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and "determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted." Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (citation and internal quotation marks omitted). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Under Rule 12(b)(1), a party can challenge the court's subject matter jurisdiction in one of two ways: (1) by challenging the sufficiency of the allegations relied upon in the complaint to support jurisdiction; or (2) by challenging the accuracy of those allegations. See Hernández-Santiago v. Ecolab, Inc., 397 F.3d 30, 33 (1st Cir. 2005) ; see also 5B Arthur R. Miller et al., Fed. Prac. & Proc. Civ. § 1350 (3d ed.). The court's standard of review differs depending on the challenge brought. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). Where a defendant challenges the sufficiency of the plaintiff's allegations, the standard of review is the same as the Rule 12(b)(6) standard. See Sevigny v. United States, Civ. No. 13-cv-401-PB, 2014 WL 3573566, at *2-3 (D.N.H. July 21, 2014) ; Valentin, 254 F.3d at 363. Where a defendant challenges the accuracy of the plaintiff's allegations, those allegations "are entitled to no presumptive weight," and "the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties." Valentin, 254 F.3d at 363. A challenge to the accuracy of the plaintiff's allegations must be supported by "materials of evidentiary quality," id., and the court may consider the proffered materials in resolving the Rule 12(b)(1) motion without converting it into a motion for summary judgment, see Gonzalez v. United States, 284 F.3d 281, 287-88 (1st Cir. 2002).

Here, CBP and Garcia have attached a declaration prepared by Garcia to their Rule 12(b)(1) motion. See doc. no. 20-2. The declaration contains assertions regarding CBP and Garcia's use of checkpoints in New Hampshire and is intended to challenge the accuracy of Drewniak's allegation that they are likely to conduct additional checkpoints. The court will therefore consider Garcia's declaration in highlighting the relevant facts below and in resolving CBP and Garcia's standing challenge. See Gonzalez, 284 F.3d at 287-88.

BACKGROUND

CBP has conducted numerous temporary traffic checkpoints in New Hampshire over the last several years. Although it conducted no such checkpoints from 2012 through 2016 due to lack of resources, the agency obtained necessary funding and personnel to re-initiate the use of checkpoints in 2017.³ That year, the agency prepared an "operation order" detailing its plans to conduct traffic checkpoints in New Hampshire. Doc. no. 20-2 ¶ 9. Agency counsel reviewed the order's "legal sufficiency," and CBP management at both the local and national level ultimately approved the order. Id. After the order's approval, CBP resumed conducting traffic checkpoints in New Hampshire.

At CBP checkpoints, agents stop every vehicle traveling on the roadway where the checkpoint is located. When a vehicle begins approaching a checkpoint, agents direct the vehicle to a "primary checkpoint location" where CBP agents ask the vehicle's occupants questions about their citizenship status. Agents also use trained dogs to perform "pre-primary free air sniffs" of vehicles waiting to pass through the primary checkpoint. CBP dogs are trained to detect persons concealed in traveling vehicles as well as narcotics. If a dog alerts, agents direct the vehicle to a secondary checkpoint area for further investigation.

CBP conducted two checkpoints in New Hampshire in 2017—one in August and one in September. It conducted an additional four checkpoints in 2018—one in May over Memorial Day weekend, one in June over Father's Day Weekend, one in August, and one in September. CBP then conducted four more checkpoints in 2019—one in April, one in May, one in June during Laconia Motorcycle Week, and one in September.⁴ Most of these checkpoints lasted multiple days. Seven took place on Interstate 93 ("I-93") in Woodstock, including the checkpoint occurring August 25-27, 2017.

Drewniak is a resident of Hudson, New Hampshire, and is an avid outdoorsman. He travels to the White Mountains region of New Hampshire from his home in Hudson at least fifty times each year during fishing season, which generally lasts from March to November. During ice fishing season, which lasts from December to February, he travels to the White Mountains an additional ten times to enjoy outdoor recreation. In traveling to the White Mountains, Drewniak generally drives on I-93, which is the most direct route to the region from his home and which passes through the town of Woodstock, New Hampshire.

On August 26, 2017, Drewniak was returning home with his friends on I-93 from a fishing trip in the White Mountains. CBP agents stopped Drewniak's vehicle, along with every other vehicle travelling through Woodstock on I-93, at the Woodstock checkpoint taking place on that date. As Drewniak's vehicle approached the primary checkpoint location, CBP agents asked Drewniak and his friends about their citizenship status through the driver's side window. As they did so, another agent circled the vehicle with a trained dog. The agent handling the dog signaled to the agent questioning Drewniak and his friends, who then told the vehicle's driver to proceed to the secondary checkpoint area.⁵

Once the vehicle arrived at the secondary checkpoint area, agents instructed Drewniak and his friends to exit. Qualter then searched the vehicle along with his canine partner. However, Qualter's dog failed to alert to any detectable odors. After completing his search, Qualter shouted at Drewniak—in close proximity and in a threatening manner—"Where's the fucking dope?" Drewniak told Qualter that there was a small amount of marijuana in the vehicle's center console, and Qualter demanded that Drewniak retrieve it. Drewniak entered the vehicle and removed a small quantity of hash oil in a container, turning it over to Qualter. Qualter then gave the hash oil to Sergeant Millar of the Woodstock Police Department, who was standing nearby.⁶ Sergeant Millar charged Drewniak with violating New Hampshire's Controlled Drug Act. See RSA ch. 318-B; RSA 318-B:2-c, III, V (establishing that "any person who knowingly possesses 5 grams or less of hashish ... shall be guilty of a violation" punishable only by a fine).

In his subsequent state court prosecution, Drewniak filed a motion to suppress. The presiding judge granted Drewniak's motion, concluding that the CBP dog's "free air sniff" occurring during the initial citizenship questioning constituted a search under the New Hampshire Constitution requiring reasonable suspicion. See doc. no. 1-1. Because the court found that CBP lacked reasonable suspicion, it ruled that the search violated Part I, Article 19 of the New Hampshire Constitution. The court further ruled that the State could not avoid suppression merely because federal rather than state officers conducted the unlawful search.⁷

Drewniak thereafter initiated this lawsuit. His complaint brings two counts. Count I alleges that Qualter violated Drewniak's Fourth Amendment rights by...