What every New Mexico cannabis operator should know about Border Patrol seizures in the 100-mile zone.
|
THE SHORT VERSION Starting in February 2024, U.S. Border Patrol agents began seizing state-licensed cannabis at interior checkpoints in southern New Mexico. By October, losses for licensed operators had topped $1 million. Governor Michelle Lujan Grisham raised the issue with DHS Secretary Alejandro Mayorkas. On a leaked phone call, she described feeling politically boxed in and recounted that Mayorkas had previously dismissed her concerns with the line, “Who cares? They make a lot of money.” Eight licensed operators sued CBP in October 2024. In February 2026, a federal judge dismissed the case, holding that federally illegal contraband isn’t constitutionally protected “property.” Bottom line: a New Mexico cannabis license does not insulate you from federal seizure inside the 100-mile border zone. Plan your routes and your paperwork accordingly. |
In February 2024, Border Patrol agents at interior checkpoints in southern New Mexico started doing something new: stopping vehicles carrying state-licensed cannabis and keeping the cargo. By mid-April, licensed providers had reported more than $300,000 in confiscated product, and the New Mexico Cannabis Chamber of Commerce counted roughly a dozen businesses caught in the sweeps. By that October, the running total had crossed a million dollars.
The checkpoints in question sit about 60 miles north of the border, well inside the so-called 100-mile zone. The federal government claims authority to conduct certain warrantless stops within 100 miles of the U.S. border, an authority anchored in 8 U.S.C. § 1357 and the Supreme Court’s 1976 ruling in United States v. Martinez-Fuerte. That power was built for immigration enforcement. CBP is now using the same checkpoints to enforce federal drug law against companies operating entirely within New Mexico.
The human side of this is uglier than a press release. Drivers describe being held in cells for hours, photographed, fingerprinted, and told their names were being added to a drug trafficker database, then released without any charge, potentially affecting other rights like the right to travel through TSA. One operator estimated $85,000 in seized product after agents allegedly bragged it was the bust of the century. Producers in the southern part of the state have also traditionally relied on testing labs north of the checkpoints, the same labs the state requires them to use for contaminant screening.
Governor Michelle Lujan Grisham took the issue to then Homeland Security Secretary Alejandro Mayorkas. On a phone call later leaked online, she said she felt politically boxed in and recounted that Mayorkas had previously brushed off her concern with the line, “Who cares? They make a lot of money.” Things have not changed much since President Trump came to office.
CBP’s position has been consistent and, on its own terms, simple: marijuana remains a Schedule III controlled substance, and possession, sale, and distribution remain illegal under U.S. federal law regardless of state legalization. The agency falls under DHS, not the Department of Justice, so the Cole Memo (now rescinded anyway) and the long-standing congressional appropriations rider that protects state medical cannabis programs from DOJ interference don’t tie its hands.
Eight licensed operators tested that gap. They sued CBP in October 2024, alleging Fifth and Tenth Amendment violations and asking the court to either return their property or compensate them. In February 2026, Chief Judge Kenneth Gonzales of the District of New Mexico dismissed the lawsuit, holding that there is no cognizable property interest in something Congress has declared contraband, and that pending rescheduling of cannabis to Schedule III doesn’t change current law. The proposed rule isn’t the rule yet.
So where does that leave a New Mexico operator?
I’m not your lawyer, and nothing here is legal advice. But the practical questions are concrete: What paperwork did you receive when product was seized? Were you given any forfeiture notice or a deadline? What does your insurance, if you have any, actually cover? Those are worth working through with counsel before the next stop, not after.
Frequently Asked Questions
Why can Border Patrol seize cannabis that’s legal in New Mexico?
Even though it was reclassified, marijuana is still a Schedule 3 substance under the federal Controlled Substances Act. State legalization doesn’t override that. Border Patrol agents are federal officers enforcing federal law at federal checkpoints, and a federal judge has now confirmed they can do so even when the cargo is state-licensed.
Where are these checkpoints, and why are they so far from the border?
The main ones are on I-25 near Las Cruces and on I-10 near Lordsburg, roughly 60 miles inland. Federal regulations interpret a “reasonable distance” from the border as up to 100 air miles, which is why interior checkpoints are legal in the first place.
Can a business get its seized product, cash, or vehicles back?
Historically, no. at least not the cannabis itself. Some seized vehicles in the New Mexico cases were eventually returned, but only after weeks of detention. After the February 2026 dismissal, there’s no clear federal path to recover the value of seized product.
Doesn’t the proposed rescheduling to Schedule III fix this?
Not yet, and possibly not even after it’s finalized. The court was explicit: a proposal to change the law isn’t a change in the law. Even if rescheduling goes through, marijuana would still be a controlled substance, just a less restricted one, and rescheduling alone doesn’t legalize state-licensed commercial sales under federal law.
Has Congress done anything about it?
Representative Gabe Vasquez introduced an appropriations amendment to bar Border Patrol from spending funds on these seizures, and Senator Martin Heinrich publicly criticized DHS for prioritizing cannabis over fentanyl interdiction. Neither effort has produced binding protection for New Mexico operators.
Land of Enchantment Law | 505.585.1235 |Law Office of Johnn Osborn P.C.
Disclaimer: The information in this article is for general informational purposes only and does not constitute legal advice. You should consult an attorney for advice regarding your individual situation. Contacting Land of Enchantment Law does not create an attorney-client relationship.