Medical marijuana is legal in California, and the US Department of Justice has made it policy to not go after patients and providers in compliance with state law, but California medical marijuana patients who live or travel within 75 miles of the Mexican border are encountering another problem with the feds: the Border Patrol. Under US law, the Border Patrol is allowed to set up what amounts to a "Fourth Amendment-free zone" within that 75-mile perimeter, subjecting any and all comers to warrantless searches in its bid to stop illegal immigration and drug smuggling.

[image:1 align:left caption:true]Patients and advocacy groups are complaining that the border area checkpoints operated by the Border Patrol, part of the Department of Homeland Security, are sweeping up patients, detaining them, seizing their medicine, and sometimes arresting them on federal drug possession charges.

Retired Fresno fire-fighter Charles Berg is a case in point. Forced to quit working after being injured in a chemical fire, Berg relocated to the border town of Calexico on his physician's advice in order to take advantage of the dry, warm desert climate.

"Because of my remote location, I need to travel to see the medical specialists that treat me, so that I can live in a healthier climate," he wrote in a letter to California NORML seeking assistance. As a border resident, Berg became accustomed to going through Border Patrol checkpoints, but in August 2007 he had the misfortune of encountering one where drug-sniffing dogs were being employed.

"The K-9 was searching vehicles four to five back from the front of the line, but when it got to me the dog and agent stayed with my vehicle and upon reaching the front I was stopped," Berg related. "The agent directing traffic told me to pull over to the side, I started to inquire as to what was going on but was interrupted with a sharp command to, 'PULL OVER NOW!!' I complied immediately and was followed by the K-9 and handler. I was told to get out of the vehicle and to present my ID, all of which I did immediately.  Every time I asked what was wrong I would be interrupted with shouts of 'shut up' or commands to 'sit down.' When agents began to search the vehicle and the dog jumped into my car, I stood up and said, 'Wait a minute, do you have a warrant to do that?' I was immediately restrained and handcuffed. Agents explained to me that I was under arrest because the K-9 had alerted to my vehicle and they were searching for what it alerted to. I was taken inside and bodily searched; my clothing was checked and I was patted down. I was left inside, handcuffed to a chair while my vehicle was searched for over an hour. I was finally released without charges after several hours, having been in custody, searched and arrested, and was then sent on my way with no explanation as to what they were looking for or what they had done. Every time I attempted to ask a question I was told to leave or they would arrest me for trespassing."

While Berg was not prosecuted, he did have his medical marijuana seized, and, to add insult to injury, the Border Patrol also seized his prescription pain medications. But that was not the end of Berg's adventures with the Border Patrol.

In December 2007, while traveling on Interstate 8 on his way to visit a cancer specialist in Phoenix, Berg encountered another Border Patrol checkpoint with a drug-sniffing dog. Again, he was arrested and his medications seized. This time he was stuck in jail for three days. Determined to take a stand, Berg refused his public defender's entreaties to cop a plea. His trial is still pending.

[image:2 align:right caption:true]"In the last few months since my trial was postponed the situation has gotten worse," Berg wrote. "I still live in Calexico, and have medical needs that require me to travel. I still need to travel to Palm Springs and San Diego at least twice a month. Because I know that my medication will be taken by the Border Patrol, I can no longer go on extended stays. It is an extreme burden to drive the 300-mile round trip, but if I don't do it this way I end up going days without any of my prescriptions and the Border Patrol takes them. My doctor says that pain meds are often excreted through sweat, and that the dogs will alert on that. Unfortunately, I can do nothing about the scents that are left behind. Despite the fact that I have been forced to travel without my meds, I am still stopped and searched by the Border Patrol."

Berg enlisted the help of the Fresno Firefighters union, but they also got nowhere with the Border Patrol. In fact, investigators for the union reported to Berg that they had spoken with an Agent V. Vega, regional Southern California Border Patrol supervisor, who told them: "It would be best if Mr. Berg moved out of the area. The Border Patrol's mission in California is to stop illegal immigration and enforce federal marijuana laws despite California legislation."

Earlier this week, the Chronicle contacted a Border Patrol public information officer for that region, who instead of answering questions asked that they be emailed to him. He has yet to reply to the emails. Calls to Customs and Border Protection headquarters in Washington have not been returned.

Berg is not alone. "Over the past year, we've received multiple reports of people being stopped by the Border Patrol," said Kris Hermes, spokesman for the medical marijuana defense group Americans for Safe Access. "We've had two or three incidents where people were stopped for compliance checks in San Diego County to see if everyone had proper documentation. In those cases, the Border Patrol found medical marijuana, seized the medication, then cited them federally for possession."

San Diego County resident Jim Lacy, 60, didn't get arrested, but he has repeatedly had his medical marijuana seized by the Border Patrol. "I got my card in 2003," said Lacy, who was disabled after being hit by a train. "I almost died, I lost my spleen, I had ribs going through my lung, it left me crippled for life," he said. "The Border Patrol was smaller back then and not so uptight," Lacy said. "They didn't know anything about the California law, they were all fascinated. I showed them my paperwork, and they said just make sure you have the legal amount."

But it didn't quite work out that way, Lacy continued. "I tried it with a joint, I had the paperwork and everything. They found it and took it, and after about 40 minutes of being paraded around they let me go. The next time I tried it with a gram," he added. "They took it and tested it and said it wasn't pot, but they kept it. It was pot! I grew it myself. One agent said he would take it every time," Lacy recalled bitterly.

"The Border Patrol told me they would change their policy if Obama would write a letter like the Department of Justice," Lacy said. [Editor's Note: It was not President Obama, but Attorney General Holder who wrote the memorandum last year instructing the department to not go after patients and providers acting in compliance with state medical marijuana laws. But the Border Patrol is a division of the Dept. of Homeland Security, not DOJ.] "The Department of Justice doesn't control Homeland Security. I've written to all the political leaders, but nothing happens," he said.

"If you're going to have a zero tolerance policy, don't trick people," said Lacy. "People think they're safe in California, but if someone comes from some other county and comes down here, they'll never leave here with their medicine."

The problem has worsened as the Bush and Obama administrations have beefed up staffing for the Border Patrol in the wake of the September 11, 2001, attacks, and, more recently, in response to the uproar over illegal immigration and prohibition-related violence just across the border. The number of agents nearly doubled, from 11,000 in 2000 to 20,000 now, and just this week, Congress passed and President Obama signed a bill that will add another 1,250 agents. (See related story here.)

"I wish they'd stop it," bemoaned Dale Gieringer, director of California NORML. "It just shows what a hydra-headed beast we have to deal with. It's not just DEA and the Department of Justice, but also Homeland Security on the border and Treasury with regard to the ability of dispensaries to get bank accounts, also with the Veterans Administration, which appears to be at least partially cleared up, also HUD with the public housing, also about Department of Transportation drug testing rules, there's just an enormous amount of work to be done at the federal level. We're not going to be out of a job anytime soon."

"Our view is that the federal government should have a clear, uniform policy on medical marijuana," said Hermes. "It's not acceptable that this issue be divided into different policies among the different federal agencies. It is incumbent on the Obama administration to get to work on a comprehensive federal policy on medical marijuana," he said. "The Justice Department has made its position clear with its memorandum last October, and the VA has more recently issued a policy that recognizes medical use," Hermes noted. "Instead of this piecemeal process and selective enforcement, we should be dealing with this uniformly."

ASA wants to hear from patients being hassled by the Border Patrol, Hermes said. "We have a legal hotline where patients can report these incidents. We have not yet taken legal action to address the behavior of the Border Patrol, but we may consider that in the future."