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The Terrifying Truth About the NM Anal Search

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.

Comments

  1. raven says

    I would file a civil suit for a few million dollars and ask for a jury trial.

    A lot of people aren’t too happy about how we are living in what is becoming a police state and New Mexico has its share.

    Would a jury be appalled enough to rule for the victim? Who knows but what does he and the rest of us have to lose?

  2. Ellie says

    Ken White has put into words what I have been thinking ever since I first read this horrifying story. I agree with him and it is frightening.

    And if this man were among the people (rare, but it happens) who had an adverse reaction to the sedatives, or had bowel tearing during the procedure, it would have been just collateral damage in the War On Drugs?

  3. Trebuchet says

    It’s pretty clear that the victim was targeted and the traffic stop was just a pretext for doing the search. And since then, they’ve done it to another guy as well.

  4. raven says

    There are so many things wrong with this incident that it is hard to know where to start.

    Why didn’t the police and MD’s just do a CAT or MRI scan for drugs? They should show up on one of those and they are at least a noninvasive medical procedure. I suppose they lack the torture part, which might be a feature and not a bug.

    We see you… The incredibly powerful CT scans of drug mules | Mail …
    www. dailymail. co.uk/…/We–The-incredibly-powerful-CT-scans-drug-m…‎

    Dec 16, 2010 – Computed tomography or CT scans are usually used by doctors to … No hiding place: The amazing scans that show the dangerous lengths to which drug smugglers will … of drugs or stuff them in to body cavities to keep them hidden as they ….

  5. Ben P says

    I would file a civil suit for a few million dollars and ask for a jury trial.

    If he hasn’t already, I’m quite sure that he will. IIRC the facts may have actually come from a lawsuit that he already filed.

    However, as someone who’s handled a couple of these suits, here’s the rub. Issues of qualified immunity are decided at a very preliminary stage, on the pleadings, without a jury. The law specifically says that issues of qualified immunity are to be decided as soon as reasonably practicable. Moreover, any denial of sovereign immunity is immidiately appealable as an interlocutory issue.

    The plaintiff will file his complaint. The state will file a motion to dismiss, possibly several as a matter of course, and possibly an answer. At least one of those motions to dismiss will raise the defense that the officers involved are protected by sovreign immunity, and the plaintiff’s complaint doesn’t state facts sufficient to overcome that immunity.

    The judge will schedule a hearing, probably a couple months out, on sovereign immunity. This hearing will be a mini-bench trial, where both parties will present testimony to the judge about what occured, and their motivations for doing so.

    If the judge finds the cops are not immune, they will immidiately get to appeal, and there will be a consideration of whether immunity was proper. Then 3-6 months for the 9th circuit to decide the issue of the appeal, and possibly another 3-12 months for the supreme court to hear a cert petition, deny it, or agree to hear the case.

    If the appeals courts uphold the denial of immunity, then and only then, does a jury trial get scheduled. Because the Court has already decided the officers “did not act in good fath,” this bodes very poorly for a jury trial and there’s a really significant chance that this case will be settled before a jury ever hears it.

  6. Dunc says

    Why didn’t the police and MD’s just do a CAT or MRI scan for drugs?

    Well, they did an x-ray first. When that didn’t show what they were looking for, they escalated to a digital search and an enema. When that didn’t result in any drugs either, they did it again. And again. Then they decided to go for the colonoscopy. They clearly weren’t going to just accept a negative result.

  7. raven says

    Well, they did an x-ray first. When that didn’t show what they were looking for, they escalated…

    OK. I wasn’t aware of the details which makes it look more and more horrible.

    They should have just stopped at the X-ray.

  8. says

    STORIES LIKE THIS ARE COMIGN UP ALL ACROSS THE COUNTRY! US TEA PARTIER CONSTITUTIONAL CONSERVATIVES WARNED YOU BUT YOU DIDN’T LISTEN! YOU COULD HAVE JOINED US AND STOOD UP AND SAID WE WONT STAND FOR THIS WE STAND FOR LIBERTY! NOW YOUR STUCK WITH IT! THANKS, OBAMACARE!

  9. AsqJames says

    @raven,

    Why didn’t the police and MD’s just do a CAT or MRI scan [...] they are at least a noninvasive medical procedure.

    I agree it would have been slightly better had the police and doctors gone with the search method involving the lowest possible risk of harm, but CAT (aka CT) scans are normally (although not always) done using x-rays. A CAT/CT colonoscopy typically subjects the “patient” to between 2.5 and 4 times the average annual background raditation, which is about 300 – 500 times that of a single x-ray (source).

    MRIs also are not 100% risk free.

    Doctors do not have the right to impose any such risk unless it is medically justified, and even then the patient must give consent.

  10. says

    I’ve been a member of the ACLU for 11 years. If this happened to me I would immediately contact them and we would file a simply ginormous lawsuit.

    And I would also move, to minimize possible retribution from rogue cops in the defendants’ organization.

  11. Synfandel says

    Colonoscopies carry medical risks. I personally know two people who died because of routine diagnostic colonoscopies gone wrong. Police should never have the right to put your life at risk because they suspect you might have a dime bag up your ass.

  12. Ben P says

    MRIs also are not 100% risk free.

    Doctors do not have the right to impose any such risk unless it is medically justified, and even then the patient must give consent.

    As the link points out there’s established law on this. The risk to the person is balanced against the suspect’s 4th amendment rights and the danger of the surgery.

    The key case is Winston v. Lee, 470 U.S. 753 (1985), which expressly considered when the government can get a warrant to perform surgery on a suspect for evidence in their body. Under Lee, the court must conduct a balancing of the overall invasiveness of the surgical measures as compared to the need for evidence to say whether a warrant can be used to allow the surgical technique. On one hand, withdrawing blood to test it for alcohol in a DUI case is reasonable, and is allowed. On the other hand, dangerous surgery to extract a bullet lodged under a suspect’s collarbone was unreasonable when the bullet was of relatively low evidentiary value.

    Seperate and apart from whether there is any good evidence in this case, if the police have good evidence someone is concealing drugs inside their body, a warrant may authorize medical procedures to retrieve those drugs. The overall invasiveness is balanced against the risk and the evidence.

    Evidence of drugs in a body cavity is highly probative evidence for a conviction of drug smuggling. The question then defaults to the least dangerous means of gathering this evidence in a timely fashion.

    Although unpleasant, in many contexts, such as jails, the standard method for gathering this evidence is a visual and digital inspection. Hence, “squat and cough” or a “cavity search.”

    At the extreme end, suppose there is solid evidence someone has swallowed condoms full of cocaine and they are somewhere within the digestive tract. In that case surgery might be used to retrieve them, not only for evidence, but for safety reasons.

    In between you have various procedures.

    The strongest argument for the plaintiff in this case hinges on two elements, in my opinion.
    1. Whether the warrant to obgain an anal cavity search was valid in the first place, being based almost entirely on an un-corroborated tip that the suspect is known to conceal drugs there.

    2. How the police justify going from x-ray to colonoscopy despite negative results, particularly if they were told the X-Ray was very conclusive as to the absence of drugs.

  13. says

    Chances are the docs administered drugs that the police would have arrested him for if they found them in hidden his colon.

  14. says

    Anyone else wonder if some cop had an unrelated grudge against Eckert and that this was a rape for the amusement of police?

  15. maddog1129 says

    What is the supposed probable cause for believing anything criminal is going on, so as to justify any search at all?

  16. DaveL says

    It’s pretty clear that the victim was targeted and the traffic stop was just a pretext for doing the search

    A case of “parallel construction”?

  17. says

    Apparently, in at least one of these cases, the warrant was issue in one county but the searches were performed in another where the warrant wasn’t valid. Does that have any bearing on the question as to whether the cops acted “improperly”?

  18. NitricAcid says

    How often do cops get shot when they pull people over for traffic violations? I doubt the number is very high, but I wouldn’t be very surprised to see that number go up in NM in the near future.

  19. Ben P says

    What is the supposed probable cause for believing anything criminal is going on, so as to justify any search at all?

    The warrant application is in the Popehat link. Tthe police obtained a warrant to search the suspect for drugs, “including but not limited to” his anal cavity.

    In short, this warrant was based on the following facts.

    1. Suspect was stopped for a traffic infraction, and was visibly nervous.
    2. A K9 unit (with no background or possible certification stated in the warrant application) indicated first when passing the driver’s side of the car, then when brought into the car, indicated again directly on the driver’s seat.
    3. Another unnamed police officer (might imply k9 officer, the application is not clear) stated that the suspect had previously been arrested for drug use and was known to conceal drugs in his rectum.

    The recent supreme court decision on drug dogs (unanimous) held that if evidence is before the court that a drug dog is certified or has been trained such that a reasonable person would believe the indication is accurate, this creates a rebuttable presumption the indication is valid probable cause. The defendant may then attack this presumption with evidence the dog is innacurate. The court, however, specifically rejected a checklist approach to determine whether the dog is accurate.

    It is a stretch, although not a major one, to suggest this ruling can be extended to argue if the warrant application does not provide any evidence as to the dog’s qualification, it is not valid prima facie evidence. It’s a fair argument from a defense attorney, although very few judges at the trial court level would exclude evidence on that basis.

    Likewise, well established 4th amendment caselaw says that anonymous tips are not valid for probable cause unless corroborated. Police know this and are trained on this. This case should bring out if and when this purported “tip” was conveyed and who said it. Depending on what happened there, this could be another potential point of invalidity.

  20. timberwoof says

    I don’t think the cops actually believed he had any drugs in his ass. I think they took this to this extreme in order to “legally” harass the shit out of him, to teach him a lesson of some sort—to make him live in fear of the cops. This is state-sponsored terrorism by any reasonable definition of the phrase.

  21. Ichthyic says

    Seperate and apart from whether there is any good evidence in this case, if the police have good evidence someone is concealing drugs inside their body, a warrant may authorize medical procedures to retrieve those drugs. The overall invasiveness is balanced against the risk and the evidence.

    don’t forget… when thinking about immunity in this case, the warrant was executed OUTSIDE of the jurisdiction indicated on it.

    that, aside from the timing.

    also, the first hospital, within the jurisdiction, turned them down. flat. and that hospital has turned them down before as well.

    so, if there were any immunity to be had, that first hospital likely would not have turned those cops down for executing a legal warrant (they would have had no legal recourse to do so).

    no, I’m not afraid of the outcome here at all.

    the only shocking thing is that it has taken this long for an organized case against these bozos to surface.

  22. Ichthyic says

    I don’t think the cops actually believed he had any drugs in his ass. I think they took this to this extreme in order to “legally” harass the shit out of him, to teach him a lesson of some sort—to make him live in fear of the cops. This is state-sponsored terrorism by any reasonable definition of the phrase.

    agree.

  23. Ichthyic says

    As I understand it, this was the second time this particular officer stopped Eckert.

    yup. and he didn’t have any drugs the first time, either.

    but he did have the temerity to ask them how long the stop would take, since he was late for an appointment/work.

    what’s more, these same guys and this same dog have been involved in other similar incidents with other people.

    no, these guys are hosed.

    the question in my mind is:

    what will happen when their superiors get investigated by whatever constitutes internal affairs there? Will the medicos involved have their licenses pulled? What is the official policy at the hospital that ended up capitulating and raping this man, as opposed the hospital that refused to do so?

  24. Ichthyic says

    Another unnamed police officer (might imply k9 officer, the application is not clear) stated that the suspect had previously been arrested for drug use and was known to conceal drugs in his rectum.

    that has been shown to be a direct lie, btw, and likely was added as an afterthought to justify the illegal second stop.

    in fact, the original report found no drugs on the suspect at all, and only note the suspect as “uncooperative”… because he dared ask them how long the stop would take.

    please, if you want to argue the legality of THIS case, use ALL the facts at hand.

    if you want to argue something more general, then state that.

  25. corporal klinger says

    Please don’t take this as nationalistic bullshit or condescention; I’am very aware of the flaws of my european nation and I take no pleasure in the suffering of my fellow humans. This being said, there is not a day that I’am not happy that I wasn’t born in the U.S., that I don’t have to nor will I ever have to live or go there.
    Every other nation with a justice system like your’s, the weapons madness, religious fascists and failed educational system, is considered a failed state.

    I stole my own comment from – the Corrupt, Life-Destroying Prosecutor Gets 10 Days in Jail- post.

  26. corporal klinger says

    This of course is valid for a lot of nations on our beautyful planet. I admit, I’am kind of naive, idealistic person suffering under the realities of our world. We, as a species, could do so much better and just don’t. It just despairs me from time to time.

  27. uzza says

    August 26, 2013 Knoxville Tennessee
    United States v. Booker
    Page 2
    Police officers, reasonably suspecting that Booker had contraband hidden in his rectum, took Booker to an emergency-room doctor. The doctor, using a procedure that Booker did not consent to, intubated Booker for about an hour, rendered him unconscious for twenty to thirty minutes, and paralyzed him for seven to eight minutes. Using a finger, the doctor found and removed the crack cocaine, and turned it over to the police

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