Anal Probes and the 4th Amendment


We have all recoiled in shock and disgust at the stories coming out of New Mexico (though that state is hardly alone here) about the police doing invasive anal probes to find drugs on virtually no evidence. Radley Balko, who has done better reporting on police abuse and civil liberties than any other reporter in the country, explains how we got to this point:

The case that started us down the road to what happened in New Mexico is United States v. Montoya de Herandez. At issue were the Fourth Amendment rights of people that customs agents suspected to be “drug mules”– people paid to swallow heroin-filled balloons, fly into the U.S., pass the balloons and then hand off the heroin to a drug inside the country. The court ruled 7-2 that U.S. Customs officials did not violate a suspect’s Fourth Amendment rights when they detained her at the airport, locked her in a room, then held her incommunicado until “her peristaltic functions produced a monitored bowel movement.” And they could do all of this without a warrant. The suspected mule, Rosa Elvira Montoya de Hernandez, was held in a locked room for 24 hours until two U.S. Customs officials could watch her defecate. It turned out that de Hernandez was smuggling heroin. But studies and surveys at the time showed that 80-85 percent of women similarly detained or subjected to body cavity searches turned out to be innocent. By the end of the decade, a New York Times survey of suspected drug mules subjected to x-rays or forced defecation found that in Miami, agents searched 101 people, and found drugs on 67 of them. In New York, 187 searches yielded 90 arrests. Houston was particularly inept. Agents there went 4 for 60. Nationally, the figures were about 50-50. One innocent person subjected to this sort of violation for every drug mule was apparently good enough for the drug war…

The Hernandez case applied only to border agents (the Supreme Court has basically declared that the Fourth Amendment is suspended along the border — and any area within 100 miles of it). But it isn’t difficult to see how licensing forcible defecations around the border could start us down a path to the day when law enforcement officials believe they have the authority to administer forcible enemas and colonoscopies within it…

Over at the legal blog the Volokh Conspiracy, Fourth Amendment scholar Orin Kerr notes that it was likely the drug dog’s alert in New Mexico that provided the probable cause for everything that followed. This too comes from a series of flawed Supreme Court decisions that put far too much faith in the ability of K9 drug detection teams, which tend to have alarming rates of error. The problem isn’t that dogs don’t have the ability to detect illicit drugs, it’s that dogs have been bred to please their owners. This trait can often override their detection abilities, causing the dogs to merely affirm the suspicions of their handlers. Invasive searches based only on the hunch of law enforcement officials is exactly the sort of thing the Fourth Amendment is supposed to protect against.

But the drug dog cases are also an excellent illustration of a huge problem with how the Supreme Court considers Fourth Amendment cases, particularly with respect to the drug war. These cases are considered and decided only within the limited context of the specific case that’s brought before the justices. But they’re then broadly applied well outside the parameters of that context. It’s the difference between considering a legal question from an academic perspective, and considering it from a practical one. (It’s also why the court is in dire need of more justices with more criminal justice experience.) It seems unlikely that when deciding this particular line of cases — most of which involved relatively non-invasive searches of automobiles or pickets — the justices considered the possibility that their decisions might later be used to authorize forced anal penetration, enemas and colonoscopies based mostly on the alert of a drug dog. But that’s exactly what has happened. But like Hall, Kerr ultimately concludes that the searches in New Mexico were likely illegal.

This is where it all takes a surreal turn. David Eckert, Paul Young, you, I — and all other lay people — are expected to know every law on the books, at least to the extent that we can be held criminally and/or civilly liable for breaking them. But for police officers, judges and prosecutors — all of whom are paid to enforce and administer the law — there is no such expectation. Or at least, they aren’t held accountable when they don’t. In the Fifth Circuit case mentioned above, for example, even though the court found the search to be unreasonable, and therefore illegal, it still allowed the drug evidence found in the suspect’s rectum to be admitted at trial, thanks to a “Good Faith Exception” granted to police officers who violate the law, but can plausibly claim they simply weren’t aware that what they were doing was illegal. (It’s usually incumbent on the defendant to show the cops were acting in bad faith — a burden that is usually impossible to prove.)

And all of the law enforcement officials involved are pretty much legally untouchable:

Police officers are protected from lawsuits by the doctrine of qualified immunity. It isn’t enough to show that a law enforcement officer violated your rights. You must also show that the rights the officer violated were “well established” at the time he violated them. In other words, the violation needs to be pretty egregious before you can even get in front of a jury. Oddly, qualified immunity actually provides an incentive for police officials to avoid keeping officers informed on the most recent relevant court ruling in constitutional law.

John Wesley Hall says that in this case, the fact that both a judge and a prosecutor were also wrong on the law, and that forced anal probes, enemas and colonoscopies aren’t an issue that have yet been addressed by the U.S. Supreme Court, the cops in New Mexico will likely be protected from any liability. “Because the police were acting under a warrant signed by a judge, it seems unlikely that the plaintiffs will be able to get around qualified immunity,” Hall says. And what about the judge and the prosecutor? They’re protected by absolute immunity, which — just as it sounds — makes it nearly impossible to sue them for damages, even when they’re flat wrong on the laws they’re paid to know, and even when police officers then rely on a judge or prosecutor’s mistaken views on the law in the course of egregiously violating someone’s rights.

Professional sanction also seems unlikely. Deming, New Mexico Police Chief Brandon Gigante says his officers did everything “by the book,” so there certainly won’t be any discipline from the police department. (This may actually come back to bite Gigante — one of the few plausible ways Eckert and Young could win in court is through municipal liability. They would need to show that there’s a pattern or practice of such violations in Deming. Gigante admitting that illegal searches like these are consistent with his department’s official policy could help them establish that pattern.) And state bars and courts are notoriously inept at disciplining prosecutors even for egregious, intended misconduct. All of which means Deputy District Attorney Daniel Dougherty probably doesn’t need to worry about his law license for signing off on an anal probe warrant.

So there’s pretty much zero accountability for raping and torturing innocent people. And we call this a “justice” system.

Comments

  1. freemage says

    I understand the theory behind absolute immunity (for financial restitution) but it needs, desperately, to be tied to the ability to sue to force dismissal. That is, while I might not be able to sue a prosecutor for violating the law, I should at least be able to sue to force the prosecutor’s office to dismiss him. The same should go for judges found to have violated due process.

  2. colnago80 says

    Of course, any official taking exception to this practice would be accused of being “soft on crime”.

  3. daved says

    Eckert, however, is “lucky” that he probably still has a case, since the warrant under which he underwent this torture wasn’t valid (it had expired, and the probes were done at a location outside the jurisdiction of the warrant anyway).

  4. marcus says

    @4 Daved I suspect that due to the reasons you cited, and others, that the likely defendants of such a suit will seek to settle for an undisclosed sum (probably a few hundred thousand dollars to a mil or so) and this case will never see the light of an actual courtroom. (Nor will any legal restriction be applied to these types of unconstitutional behavior.

  5. uncephalized says

    @colnago80 #3 The War on Drugs and the whole “tough on crime” movement in general are not real popular with my generation (Millenials). Distrust of police is the default state among most people my age, not least because lots of us smoke weed and everyone knows at least one story of a friend (or friend of a friend) getting jail time for dealing a little to pay some bills; or getting all his shit stolen and his apartment smashed up by violent thieves and not feeling like he can even report it to the police because they’ll be able to tell he had drugs in the house, and then HE might be the one going to jail instead of the ones stealing and vandalizing.

    My point being that our numbers are growing every day, and the moment seems ripe for a number of these entrenched ways of outmoded thinking to fall, however grudgingly. It’s happening all across the country as we speak, state by state, vote by vote. I don’t think it’s going to stop any time soon.

  6. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @Ed Brayton:

    And we call this a “justice” system.

    No. This is what we call a *criminal* justice system.

    I find the name apt as all hell.

  7. eric says

    I understand the theory behind absolute immunity (for financial restitution)

    I don’t. In theory I can see how it could scare good lawyers away from being prosecutors or make prosecutors overly cautious. But we don’t restrict people’s rights to legally act because in theory it has a stifling effect on other people’s actions. We give people their freedom, see whether some speculative harm comes to pass, and then decide what sort of minimal restriction is necessary if it does.

    The judicial immunity laws seem to me a bit like passing laws specifically and narrowly focused on protecting rich white men from discrimination. Yeah, that problem might appear. Doesn’t mean it will. Doesn’t mean we need to pre-emptively protect them from it.

  8. says

    “So there’s pretty much zero accountability for raping and torturing innocent people. And we call this a “justice” system.”

    I wish Ed and the commenters so far had at least mentioned that the problem appies to far more than just drug-related cases and anal probes.

    More generally, it applies to what police, prosecutors, and judges can and do do to anyone they, their bosses, or the general public dislike.

    I suspect that the majority of those bewailing the anal probe cases support most of the other illegal actions.

  9. wscott says

    the warrant under which he underwent this torture wasn’t valid (it had expired, and the probes were done at a location outside the jurisdiction of the warrant anyway).

    [IANAL] I know Eckert argues this in his complaint, but the legal argument seems shaky to me. The judge may be the magistrate for County A, but I believe he’s considered a state official and his orders are valid statewide. I found the NM Magistrate Courts Procedures Manual http://www.nmcourts.gov/othercourts/mag_proc_manual.pdf, and P12 sez:

    “In any criminal action in which a magistrate has territorial jurisdiction over the offense pursuant to this section, the magistrate court has personal jurisdiction over the defendant for the purpose of service on the defendant wherever he resides or may be found with (sic) the state.”

    My read is that if the offense was allegedly committed in Magistrate A’s territory, that Magistrate can order a search even if the defendant happens to move to another county. (Whether he moved himself, or was transported there wouldn’t seem to be relevant.) And in this case, the police can plausibly argue they attempted to conduct the search in County A, but were unable to do so and thus had to go to County B. The fact that the doctor at Hospital A was unwilling to perform the search is not materially different (ethical arguments aside) from if the X-Ray machine had been broken.

    I couldn’t find anything in this manual pertaining to the timeliness of the search. But I believe at least in some cases/places, the search only has to be started before the warrant expires, not necessarily concluded. So unless the warrant was worded differently (I couldn’t find the actual search warrant online) they can probably claim that the search “started” when they brought him into the (2nd) hospital, and just took longer than expected. I’m not saying I like this argument, but the law is the law.

    I’m not trying to defend the government here – I hope the guy wins many millions. But I’m not sure this part of his case is as strong as people seem to be assuming. Any actual lawyers that can comment?

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