Ken White at Popehat writes in great detail about the 2nd New Mexico case where a man was subject to invasive anal probes to find drugs that did not exist (the one involving the police dog “alerting”). He has the affidavit submitted to get the warrant and the whole thing is worth reading. But here is the entirely justified conclusion:
So: these cops got a warrant that vaguely allowed a search in David Eckert’s anus for drugs. Even though searches found nothing, the cops and doctors continued to escalate to steadily more invasive proceduresinto David Eckert’s body to find drugs. Yet, under the “good faith” exception, their reliance on the warrant might be valid if the warrant was valid. Moreover, as Prof. Kerr explains, the cops might be able to rely on the qualified immunity that government employees tend to enjoy when they do things like subject us to involuntary anal probing.
Some people are citing this incident for the proposition that it is terrifying that police officers and doctors would break the law and violate a suspect’s rights. I submit there is something far more terrifying about it: the prospect that a court might find that Mr. Eckert’s rights weren’t violated at all, and that he has no recourse for a team of cops and doctors raping and torturing him.
What’s terrifying is that the warrant requirement is supposed to protect our rights from overzealous cops, but here a judge approved a warrant to probe a man anally premised on fluff and a tip from an anonymous cop.
What’s terrifying is that lawyers are supposed to guide cops in the law, but a Deputy DA approved this warrant.
What’s terrifying is that though the warrant is extraordinarily flimsy, there’s a decent chance a judge might find it sufficient. That’s because the judiciary has been steadily ground down by decades of law-and-order thin-blue-line rhetoric and by the purported imperatives of the Great War on Drugs, and judges routinely shrug and accept transparently bogus police speculation and awful warrants.
What’s terrifying is that a judge who has bought the government’s narrative may, employing the balancing test Prof. Kerr talks about, decide that the amount of drugs that can be hidden in a man’s rectum justifies detaining him, X-raying him, repeatedly digitally probing him, and despite a total lack of indication he is carrying drugs, sedating him and subjecting him to a colonoscopy.
What’s terrifying is that the Fourth Amendment to the United States Constitution is only as strong as judges allow it to be — and, by extension, only as strong as We the People insist that it must be. We the People are easily frightened into agreeing that the promise of safety outweighs the Fourth Amendment.
Yes, that is the most terrifying thing, that the courts may very well — indeed, might be likely to — conclude that no one did anything wrong here, that all proper procedures were followed and that, in fact, the police can perform a medical rape and torture on these astoundingly flimsy grounds. That should scare the hell out of everyone. Don’t be surprised if not a single person is held accountable for the rape and torture of this innocent man — and that is exactly what it was.