- Feb 25, 2014
Troubled traffic stops lead to anal probes, civil rights violations [w/videos]
How The War On Drugs Has Led To Abusive Police Tactics
Amid the battle against illegal drugs, sometimes the most mundane of stops go horribly awry.
In the early afternoon hours of January 2, 2013, a police officer pulled over David Eckert for allegedly failing to yield at a stop sign in the parking lot of a Walmart in Deming, NM.
This was no ordinary traffic stop.
Over the next 15 hours, Eckert would join a list of Americans who have become unwitting victims of police officers acting outside the scope of the law, victims of a legal system that no longer offers vigorous protection of civil rights, victims of the nation's fervent and failed war on drugs.
Mexican cartels sell an estimated $20-$29 billion in illegal narcotics every year in the United States, and law enforcement officers have developed a siege mentality in attempting to halt that flow.
Traffic stops are at the heart of their efforts. They've become the gateway for drug searches. Favorable court rulings have emboldened law-enforcement officers to adopt more aggressive tactics in choosing which motorists they pull over, how they establish probable cause to search a vehicle and how long they detain drivers. Amid the battle against illegal drugs, sometimes the most mundane of stops go horribly awry.
Eckert had a contentious history with the local police. Four months earlier, a Hidalgo County Sheriff's Department officer ticketed him for a cracked windshield. When Eckert asked if he was free to leave following that stop, the officer found his conduct "rude," according to a report. A search warrant was obtained. Police searched his car for drugs. None were found.
Now, officers from both Hidalgo County and the city of Deming obtained another search warrant. This time, their search would be far more invasive. Though they never arrested him, officers held Eckert against his will. At the direction of police, doctors subjected him to two rectal exams, three enemas, X-rays of his abdomen, heart, chest and lungs, anesthetic and a colonoscopy, despite his repeated objections. Again, no drugs were found.
In a lawsuit settled last month for $1.6 million, Eckert said his Fourth Amendment rights, which prohibit unreasonable search and seizure without probable cause, were trampled upon by law enforcement officers. Lawsuits against the Gila Regional Medical Center, where the exams were conducted, and the county district attorney, who authorized the search, are ongoing.
Citizens guilty of nothing more than traffic violations have endured roadside vaginal searches, anal probes and beatings.
His case is not an isolated one. In October 2012, three months before Eckert's second-run in with police, a Lordsburg, NM, man named Timothy Young was pulled over by Deming officers in a gas station parking lot. His alleged offense: failure to use a turn signal. Police escorted him to the same medical facility as Eckert, where he was X-rayed and had his anus probed. No drugs were found.
It would be easy to chalk up the Eckert and Young incidents to a handful of rogue officers from a single department with a perverted sense of frontier justice. But in recent years, similar incidents have occurred all over the United States. Citizens guilty of nothing more than traffic violations have endured roadside vaginal searches, anal probes and beatings at the hands of police.
Four police officers in Milwaukee, WI, were charged with felonies related to illegal rectal searches of "dozens of victims" that took place over a three-year span between 2009 and 2012. In one case, a 15-year-old boy had his anus searched by police officers, according to the complaint.
In May 2012, Alexandra Randle and Brandy Hamilton had their vaginas and rectums searched on the side of the road after a traffic stop in Brazoria County, TX. Two months later, two more women, Angel and Ashley Dobbs, have their vaginas and rectums searched during along the roadside during a traffic stop near Dallas.
It's no coincidence that a majority of the incidents have occurred in states across the southern US border, where America's war on drugs is waged on a daily basis.
Also in July 2012, a Florida woman named Leila Tarantino said she had her anus and vagina searched by Citrus County deputies, and that they forcibly removed her tampon. In May 2013, Lorenzo Adamson, an off-duty police officer in San Francisco said he was racially profiled and beaten during a traffic stop for having a broken license plate.
The list goes on.
It's no coincidence that a majority of the incidents, which contain elements of assumption of drug possession or racial profiling, have occurred in states across the southern U.S. border, where America's war on drugs is waged on a daily basis.
Can Good Posture Arouse Suspicion?
Officer Robert Chavez didn't actually see Eckert fail to yield. He was acting on a call from another Deming Police Department officer, Bobby Orosco, when he pulled over Eckert in the Walmart parking lot, according to a police report. Chavez asked Eckert to exit the car, patted him down and found nothing.
It could have ended there.
But because New Mexico law requires the officer who witnessed a violation to write a misdemeanor citation, Chavez needed to wait until Orosco arrived at the scene before it could be written and Eckert could be on his way. While they waited, Chavez noted Eckert's "posture to be erect and he kept his legs together."
Eckert, a 54-year-old scrap-metal dealer, said he was simply cold, but police later used his posture as an underpinning for obtaining a search warrant that authorized a body-cavity search. Weather data shows it was 34 degrees Fahrenheit that day in Deming, a mountain town in the southwest corner of New Mexico that sits about 30 miles from the border.
Chavez told Eckert he was free to leave, but also began asking questions. This is a common tactic used by New Mexico officers – simultaneously freeing a motorist but continuing with questions – because the continued conversation can legally become a consensual encounter, according to a document distributed by New Mexico's Law Enforcement Academy titled "New Mexico Police Officer's Guide To The War On Drugs." This training document, written on May 3, 2012, details this conversational strategy.
What happened next with Eckert is disputed: Chavez says Eckert consented to a vehicle search amid the continued questioning. Eckert denies that.
Two more officers from the Hidalgo County Sheriff's Department arrived at the scene. The two departments work together as part of a regional task force that receives federal money for fighting drugs. They brought a drug-sniffing dog named Leo, whose certification was later found to be outdated. Leo scores a hit on Eckert's car seat. Though no drugs are actually found, Eckert is handcuffed and taken to the Deming police station at 2:00 PM.
Upon his arrival there, Eckert asked to make a phone call. According to court documents, Chavez told him, "that he was not under arrest and therefore did not have a reason to call anyone."
Taking Advantage Of Traffic Laws
This is how it works.
Every state has a traffic code that filled with hundreds of rules that govern moving offenses and equipment violations. So many exist that, in a practical sense, nearly every driver is guilty of something each time they climb behind the wheel.
Police officers can use any of these traffic offenses, no matter how arcane, as a reason to stop a driver, even if the officer merely intends to use the traffic stop as a guise to search for juicier violations. It wasn't always this way, but in a landmark Supreme Court decision in 1996, Whren v. United States, justices declared that such a search did not violate a motorist's Fourth Amendment rights.
So many laws exist that nearly every driver is guilty of something each time they climb behind the wheel.
Emboldened by the ruling, law enforcement has increasingly used traffic stops as a pretext to hunt for drugs and guns.
"They have become very skilled at using traffic stops as a way to conduct investigations of other offenses, when they have no evidence of other offenses," said David A. Harris, a law professor at the University of Pittsburgh.
Police have broad powers once a driver is pulled over. Officers can question motorists about anything they want without reading them their rights. They can look inside a car. They can allow drug-sniffing dogs around a car. Anything they see, smell or find can be probable cause to conduct a more extensive search.
And they can take their time with those inspections. Courts don't define how long officers can conduct a stop. Twenty minutes? An hour? Two hours? As a benchmark, the courts have ruled officers can take a "reasonable" amount of time. In practice, it's a gaping gray area in the law.
There's little a motorist can do in the heat of the moment if a police officer is violating their rights.
In Eckert's case, the wait for Orosco could be construed as reasonable. Or not. What's undisputed is the delay gave Chavez a window to further question him, an opportunity to seek his consent for a search.
Even if Eckert had granted permission for a vehicle search, legal experts say that does not equal consent for a body search. They are separate. Police can pat down motorists if they fear for their own safety or if they're arresting a suspect, but even those circumstances don't permit cavity searches. A warrant is needed. Yet there's little a motorist can do in the heat of the moment if a police officer is violating their rights.
Joseph Kennedy, one of Eckert's lawyers, advises drivers to state, "I am not consenting to a search, but I am not resisting." If police officers press them on allowing a search, he says drivers should hold firm and make them obtain a search warrant. Kennedy also says motorists should ask officers to make sure their interactions are recorded.
Even then, as four Texas women learned, some officers are all too willing to cross the line while video cameras are rolling.
On a road trip to an Oklahoma casino, Angel Dobbs, 38, and her niece Ashley, 24, were pulled over by a state trooper in Irving, Texas, for allegedly throwing a cigarette out the window.
"Is there a reason you're throwing cigarettes out on the road," state trooper David Farrell asked. "No, I honestly don't remember doing that," replied Angel, who says neither smoked in the car, which belonged to her boyfriend.
The situation devolved. Farrell fired off a string of questions about marijuana. Dobbs asked why she's being treated like a criminal during a routine traffic stop. Farrell called for a female deputy to come to the scene and conduct a search.
What happened next is incredible: not only does trooper Kelly Helleson make no attempt to hide her illegal cavity search, she told Farrell that she's going to use his camera to record it. She then walked Angel Dobbs into full view of the dashcam in his cruiser.
As the video shows, Helleson first feels the elder Dobbs' right breast, then reaches into her underwear, searching her anus and then her vagina. Her niece is then subjected to the same search. Helleson didn't even change gloves in between searching the two women.
Afterward, Angel Dobbs passed a field sobriety test. She was issued a warning for littering and told she was free to go. On the video, she tells Farrell, "this has been an eye-opening experience for me. I've never been pulled over, never been searched like this. I was totally violated over there a few minutes ago."
Farrell replies: "It's because someone is a daily smoker in that car, and you can attribute it to that."
Texas Has A Problem
Less than two months before the Dobbs traffic stop, a similar incident occurred south of Houston on Route 288 in Brazoria County. Alexandra Randle, 27, and Brandy Hamilton, 26, were on their way home from the beach when a trooper pulled them over for speeding. Questions were asked. A female trooper was called to the scene. Vaginal searches were conducted along the side of the road. Gloves were not changed.
"It's such a gross intrusion," said Jim Harrington, the director of the Texas Civil Rights Project. "And to do it on the side of the road is mind-boggling."
Helleson, the female trooper involved in the Dobbs incident, was fired and charged with two counts of sexual assault. Farrell was suspended. Jennie Bui, the trooper involved in the Randle and Hamilton stop, was fired, but later reinstated after a grand jury elected not to indict her on criminal charges.
Two incidents. Both involve troopers from the Texas Department of Public Safety and occur in the same general timeframe, separated by hundreds of miles. Harrington thinks that's evidence of a systemic problem within the agency. He believes punishing the troopers, while necessary, doesn't address the source of the problem.
Punishing the troopers, while necessary, doesn't address the source of the problem.
Somewhere in their training, whether it's official classroom training or on-the-job experience, troopers are getting the message that such conduct is acceptable. Too often, he says, civil rights are presented as a burden upon the officers. A New Mexico's Law Enforcement Academy document presents constitutional training by saying, "The training will tell us what we can't do. But more importantly, it will help us understand what we can do." (Underline is in the document).
"What's interesting to me is that, on one hand, cops have this attitude about how their job is to uphold the constitution and protect citizens," he said. "Then on the other hand, you have this other side, which is, 'How far can I go without getting sued?'"
In the wake of the two incidents, the Texas Department of Public Safety updated its policies in July 2013 to provide further guidance to officers on Fourth Amendment issues. The department required every officer to re-read policies on strip searches and cavity searches, and sign an acknowledgement of receiving, reading and understanding the search policies.
"Any search that unreasonably invades the bodily integrity of a citizen is in violation of the Fourth Amendment and is therefore in violation of DPS policy," a spokesperson said in a written statement.
First Doctor Troubled By Eckert's Pleas
Eckert pled guilty to possession of methamphetamines in 2008. Nothing in that case suggests he hid drugs inside his body at that time, and through his lawyers, Eckert denies ever hiding drugs this way. Nonetheless, his lawsuit alleges Orosco told other officers at during the traffic stop that Eckert was known throughout the county to hide drugs in his anus.
This allegation, along with Eckert's posture during the traffic stop, provided the basis for a search warrant that authorized an anal-cavity search. But when officers took Eckert to Mimbres Memorial Hospital in Deming at 4:48 PM, they ran into a complication.
Dr. Adam Ash refused to conduct the search.
When officers took Eckert to Mimbres Memorial Hospital, they ran into a complication.
Ash typically worked at an army hospital in El Paso, Texas, about an hour-and-a-half away. He'd occasionally pick up extra shifts in Deming. A member of the Army Medical Corps, he served in Afghanistan and Iraq, helping to protect America's freedoms. Nothing in his experience prepared him for what he encountered that afternoon.
Police officers asked him to perform a digital rectal exam and/or X-ray Eckert, even though the said didn't believe he had swallowed any drugs. Eckert, meanwhile, denied hiding drugs anywhere on his body and repeatedly said he did not want to be searched.
"Although I wanted to help the police, I did not think it was ethical for me to subject a patient to a medical evaluation when he was denying any medical complaints," Ash wrote in a sworn affidavit.
In a conversation with Dan Dougherty, the deputy district attorney who had signed the warrant, Ash warned of the perils of such a search and offered a prescient preview of what was to come. Ash told Dougherty such an invasive search could lead to false positives, which could, in turn, result in a slippery slope that contained further investigation with more "invasive and unnecessary" tests. Such sequences are a concern in emergency medicine, Ash said, and could cause the patient "a good deal of psychological stress."
Seeking guidance in an uncomfortable situation, Ash learned neither the hospital nor police had defined policies or procedures for dealing with such legal matters. He told Dougherty he would not perform the search, and according to his affidavit, Dougherty told him to clear Eckert to go back to a detention center.
Later, Ash was surprised to learn the police instead brought Eckert to Gila Regional Medical Center, and that the concerns he expressed earlier had come to fruition.
Tempting Pot Of Drug Money
Traffic stops are the most common interaction between police officers and American citizens. Approximately 27 million occur every year, and they account for roughly 42 percent of all police contact with people, according to the Bureau of Justice Statistics.
For the most part, they are uneventful. Eighty-six percent of respondents said police officers behaved properly and respectfully, according to a Department of Justice Survey; 9.6 percent said police did not behave properly.
Traffic stops account for roughly 42 percent of all police contact with people.
The same survey revealed greater cause for concern. Black and Hispanic drivers were less likely to believe the reason for their traffic stop was legitimate. Only 67 percent of black motorists believed their stop to be conducted for valid reasons, compared to 74 percent for Hispanic drivers and 84 percent for white drivers.
Since 1978, some federal lawmakers have repeatedly attempted address those concerns by introducing the End Racial Profiling Act, which would prohibit law enforcement from engaging in racial profiling and authorize the collection of data from traffic stops related to racial profiling. Though the federal bill has failed on multiple occasions, several states – New Mexico, for instance – have passed legislation with similar intent.
Six months before Eckert was pulled over in the Walmart parking lot, a New Mexico branch of the National Association for the Advancement of Colored People gave the Deming Police Department an "F" grade for failing to comply with provisions of this state law. The NAACP said Deming failed to even produce a copy of its compliance policies.
Another piece of pending federal legislation, the Traffic Stops Along The Border Statistics Study Act seeks a greater spotlight on traffic stops that occur within 25 miles of US borders. Coincidentally introduced one day after Eckert's incident, the act would collect data on race, gender and whether motorists were interrogated over their immigration status. Among other provisions, the law would mandate that officers collect data on the number of stops conducted within 25 miles of the Mexico border and compare it with the number of stops within 25 miles of the Canadian border.
No current government agency keeps track of the overall number of civil-rights violations that occur or are alleged during traffic stops. Although they have not passed, the two pieces of proposed federal laws show an increased awareness of the cauldron of race, immigration and drug searches brewing at traffic stops. Kennedy, Eckert's lawyer, believes another force is in play.
"What's motivating these law enforcement officers in small towns is that they can seize drug money, and they get federal grants for these task forces," he said.
Case in point: between 2006 and 2008, as many as 1,000 black and Latino drivers were pulled over in Tenaha, TX, where police officers illegally confiscated an estimated $3 million in cash and property. Motorists faced a choice: they could sign over a form forfeiting cash and valuables or be arrested, in which case, children in the car would be taken and placed in the custody of child protective services. A class-action lawsuit against Tenaha and Shelby County, TX, was settled in August 2012.
While Vanita Gupta, the deputy legal director at the ACLU, said Tenaha was an egregious case of unconstitutional behavior, she said the civil-liberties organization had found multiple instances of similar schemes in other states. "They incentivize police agencies to engage in unconstitutional behavior in order to fund themselves off the backs of low-income motorists, most of whom lack the means to fight back," she said.
Kennedy was more blunt.
"The drug war has become a war on people," he said. "And the courts don't protect civil liberties like they used to."
Civil rights are a topic few in law enforcement want to discuss. Brian Gigante, the Deming chief of police, did not return emails and phone calls requesting comment. Nor did other officials with the city of Deming, Hidalgo County Sheriff's Department, New Mexico Law Enforcement Academy, New Mexico Sheriffs Association and National Sheriffs Association.
What law enforcement officials do want to talk about is more money for fighting drugs. Two weeks after Eckert settled his case last month, the New Mexico Sheriffs Association held a press conference to demand more funding.
Jack LeVick, the group's executive director, told the Associated Press that sheriffs face problems ranging from drug-cartel activity to capturing illegal immigrants. He said the border "is not secure."
Illegal X-rays, Enemas And A Colonoscopy
Undeterred by the first doctor's refusal to probe Eckert, the police officers drove him 52 miles in handcuffs to the Gila Regional Medical Center in Silver City, NM. The search warrant had been obtained from a Luna County magistrate judge, and thus, was only enforceable in Luna County. Silver City is located in Grant County.
No matter, Eckert was admitted to the hospital at 9:04 PM, and shortly thereafter, a doctor X-rayed his stomach. Eckert's lawyers contend that should have fulfilled the warrant, and the search should have concluded.
It was just the beginning. Chavez was unconvinced. So another doctor, Robert Wilcox, performed a rectal exam despite protests from Eckert. Wilcox found "something soft," according to lawsuit documents. He said it could have been stool.
At approximately 10:30 PM, a half hour after the warrant expired, a second doctor performed a second rectal exam. Again, stool was the only potential item found.
Rather than stop the search, Dr. Okay Odocha ordered Eckert be given an enema. In front of Chavez and a nurse, Eckert defecated. Chavez searched the stool, but found no drugs. Another enema was given. He defecated again. Another search yielded no drugs. A third enema was given. A third defecation. A third search. No drugs were found.
Still unconvinced that Eckert held no drugs, doctors conducted a second battery of X-rays, this time targeting Eckert's heart, lungs and chest. The X-rays found no hidden narcotics in his body. At 1:00 AM, a team of doctors and nurses prepared Eckert for surgery and sedated him with anesthesia. At approximately 1:45 AM, the colonoscopy commenced, and doctors examined his rectum, recto sigmoid, descending colon, transverse colon and cecum. No drugs were found.
Finally, the police relented. After Eckert awoke, officers Chavez and Hernandez drove him back to the Deming police department. At about 4:00 AM, some 15 hours after the traffic stop, two other officers then drove him back to his home in Lordsburg.
The Hospital Bill
In the aftermath of the invasive searches, the officers involved all remain employed by their respective police departments. Discipline of New Mexico police officers is handled by the Law Enforcement Academy, which holds hearings on officer misconduct and holds the power to suspend or revoke their certification.
Misconduct, however, needs to be reported to the academy by the police departments that employ the officers. So far, a spokeperson for the New Mexico Department of Public Safety said neither the Deming Police Department nor Hidalgo County Sheriff's Department have filed such a report, known as an LEA-90, on Chavez, Orosco or other officers involved.
Although Eckert secured a substantial settlement, there has been grumbling in Deming that nothing has been done to change the culture of the law agencies.
Eckert has received an outpouring of sympathy and support since his ordeal became public, according to his attorneys, but he's often afraid to leave his house. Even a trip to his mailbox has stirred reminders. Until he filed his lawsuit, the Gila Regional Medical Center sent him a monthly bill, claiming he owed them $6,000 for services rendered.
Pete Bigelow is an associate editor at AOL Autos. He can be reached via email at firstname.lastname@example.org and followed on Twitter @PeterCBigelow.