Was the Dog-Authorized Exploration of David Eckert's Guts Legal?

A bizarre search illustrates how the war on drugs has undermined our civil liberties.

How is it possible that a motorist pulled over for a rolling stop could end up being forcibly subjected to two X-rays, two digital probes of his anus, three enemas, and a colonoscopy, none of which discovered the slightest trace of the drugs that police claim to have thought he was hiding inside himself? That is the question raised by a federal lawsuit that recently received wide attention after it was highlighted by KOB, the NBC affiliate in Albuquerque.

The answer says a lot about the outrageous indignities we have come to tolerate in the name of the war on drugs, which has undermined our civil liberties to the point that what happened to David Eckert after he was stopped in Deming, New Mexico, seemed perfectly justified to the cops who detained him, the prosecutor who approved their application for a search warrant, the judge who granted it, and the doctors who helped execute it. Even in retrospect, Deming Police Chief Brandon Gigante insists that "we follow the law in every aspect." The really horrifying thing about Eckert's ordeal is that the courts might agree with Gigante.

Officer Robert Chavez pulled over Eckert's Dodge pickup truck on January 2 in the parking lot of the Walmart in Deming after a detective told Chavez he had seen the vehicle pass a stop sign without coming to a complete stop. Chavez later reported that Eckert seemed nervous: He avoided the officer's gaze, and his hand shook as he gave Chavez his driver's license, vehicle registration, and proof of insurance. "While Mr. Eckert was standing outside of the vehicle," Chavez added, "I did notice his posture to be erect and he kept his legs together."

Chavez claims Eckert gave him permission to search the pickup truck, which Eckert denies. In any case, Eckert's permission was not necessary for what came next: a "free air sniff" of the vehicle's exterior by LEO, a drug-detecting dog overseen by Hidalgo County Sheriff's Deputy Patrick Green. The Supreme Court has said such an olfactory inspection does not count as a "search" under the Fourth Amendment and can be performed at will during routine traffic stops.

According to Green's report, LEO "alerted" to the driver's seat of the pickup truck, which means he indicated the presence of "an unknown narcotic odor" with a signal he had been trained to give, such as sitting, barking, or scratching. Did that really happen? Since there appears to be no video of the inspection, we have no way of knowing for sure, just the word of a cop who may have been eager to help his colleagues justify a search they seemed determined to perform.

Assuming LEO did alert, was it because he smelled contraband, or was he reacting to some other odor or to Green's cues? Again, we don't know, and in practice it does not really matter. In Florida v. Harris, decided last February, the Supreme Court said a police dog's alert provides probable cause for a search unless the animal is shown to be unreliable.

Eckert argues that LEO is unreliable, since he was not recertified when he should have been and has alerted at least three times to vehicles in which no drugs were found, including the January 2 stop and a 2012 stop in which Eckert was pulled over for a cracked windshield. Judging from Harris, where an expired certification was also an issue, that point is not likely to be decisive. Nor is the fact that searches based on LEO's alerts fail to find drugs, even if that happens most of the time. According to police (and the Supreme Court, which essentially has adopted their point of view), dogs that seem to be making mistakes may actually be alerting to traces of drugs so minute that their existence cannot be confirmed. Hence you can never definitively say a police dog erred, even though there are many possible sources of error.

OK, you might say, but the warrant Chavez obtained authorized a search not only of Eckert's truck but of Eckert himself, "to include but not limited to his anal cavity." That was the piece of paper that purportedly permitted Robert Wilcox, an emergency room physician at Gila Regional Medical Center, to order X-rays of Eckert's abdomen and chest; allowed Wilcox and another physician, Okay Odocha, to insert their fingers into Eckert's rectum; gave Chavez license to rummage through Eckert's forcibly produced feces (three times); and made it legal for Odocha to insert a camera into the rectum and large intestine of an involuntary "patient." (Adding insult to assault, Gila later billed Eckert $6,000 for these services.) How could this extensive exploration of Eckert's plumbing possibly have been justified?

In addition to noting Eckert's nervousness, his erect posture, and LEO's alleged alert to the seat where he had been sitting, Chavez's warrant affidavit claimed Green told him "Mr. Eckert was known to insert drugs into his anal cavity." Green made no mention of this in his report, and Eckert denies it, calling it a baseless "rumor." Bobby Orosco, the detective who supposedly saw Eckert roll past a stop sign, did say he told Chavez that Eckert was a "known meth user," but there is nothing in Orosco's report suggesting that drugs might be found in Eckert's anal cavity.

Flimsy as all this seems, Los Angeles defense attorney Ken White, a former federal prosecutor, argues at the blog Popehat that it might be deemed sufficient for probable cause. "I'm not afraid because police officers violated David Eckert's constitutional rights by raping and torturing him because they thought he might have a trivial amount of drugs," writes White (to whom I am indebted for gathering documents related to Eckert's case). "I'm afraid that they might not have violated his rights as defined by the courts, because we have allowed those rights to wither away out of fear and indifference."

George Washington University law professor Orin Kerr, a Fourth Amendment expert, concludes that even if there was probable cause to believe Eckert had drugs up his butt, the procedures performed at Gila Regional Medical Center were so invasive that they "likely" violated the test established by the 1985 Supreme Court decision Winston v. Lee. In that case, the justices rejected court-ordered surgery to recover a bullet from a robbery suspect, finding that the evidentiary value of the bullet was outweighed by the risks of the operation and the injury to the suspect's "dignitary interests in personal privacy and bodily integrity."

But here's the thing: Kerr isn't sure Winston means Eckert's constitutional rights were violated when he was. While the procedures inflicted on Eckert were an even greater indignity than the surgery addressed in Winston, the physical risks were smaller, and the evidentiary value of the drugs (if only they had existed) was much greater than the evidentiary value of the bullet. In fact, the entire case against Eckert (if it had ever been brought) would have hinged on what the cops found in his digestive tract. Who can say how the courts will decide to weigh those factors?

If I were doing the analysis, the government's purported interest in discovering arbitrarily proscribed substances in Eckert's guts would weigh nothing at all. There is no need to search for contraband in the absence of prohibition, which forbids actions that are not crimes while legalizing actions that are. The appalling assault on David Eckert is just the latest example.

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  • Jose Chung||

    "Gila later billed Eckert $6,000 for these services."

    In Gilliam's Brazil, the Ministry of Information charged suspects for the torture involved in attempts to extract information from them. This was referred to as "Information Retrieval Charges." It seems real life has fully entered into the realm of satire.

  • ||

    "Mr. Eckert was known to insert drugs into his anal cavity."

    So, just like Stevie Nicks then

  • Heroic Mulatto||

    If the nation's LEOs are going to play occupying army on COINOPS, then it's time that we start playing the part of insurgents.

  • np||

    Going Dorner

  • Hillary's Clitdong||

    Remember to have at least two interlocking fields of fire when you set up your ambush!

  • Brendan||

    Dorner was a fool who blew so many opportunities to do it 'right'.

  • Brendan||

    Bingo. Be nice and polite as long as they are, but never forget who you're dealing with.

    Your right to go home at the end of your day is more important than a cop's so-called "right" to search your body for drugs.

    If pulled over for a traffic stop, accept your ticket. However, use whatever force is necessary to stop any sort of detention or transport of your person as these may be precursors to sexual or physical violation of your body.

    If the police want to play soldier in the war on drugs, then it's time we brought it back to them either as soldiers or insurgents in the fight to retain our freedom.

  • Carolynp||

    I'm actually thinking the camera is the most effective weapon in this insurgency. Be nice, be polite, point at the camera and ask the officer to smile.

  • Brendan||

    Agreed.

    But when it comes to them removing you from the scene to be subject to invasive sexual or physical searches, it's no longer a nice, polite thing and a camera won't stop it.

  • ||

    Just be sure to follow the Geneva Conventions. If you do, you are entitled to legal protections for prisoners of war if you get captured by the enemy. Yes, there are rules in the Conventions for insurgents.

  • DenverJay||

    Amen brother. It is about time that the people who work for the government remember whose government it is. The people set it up, and gave up certain of their natural rights to the government, in order to have a government that served them. If they cannot fathom this, then it is time to take those natural rights back, declare this government no longer empowered, and then decide if we want to try again.
    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."
    -Thomas Jefferson

  • Ama-Gi Anarchist||

    That is sadly what is going to eventually happen. As the tension is ratcheted up level by level, the eventual blowback will grow more and more. I truly have to wonder if there aren't cops who are seriously considering a career change in the near future so as to not get caught in the cross-fire.

  • Steve G||

    Chavez later reported that Eckert seemed nervous: He avoided the officer's gaze, and his hand shook as he gave Chavez his driver's license, vehicle registration, and proof of insurance. "While Mr. Eckert was standing outside of the vehicle," Chavez added, "I did notice his posture to be erect and he kept his legs together."

    I'm sure he'll be more relaxed the next time, now that he knows what to expect...

  • Ted S.||

    I'd be nervous too if I thought people wanted to use force to examine my rectum.

  • Tim||

    They should at least have bought him dinner first, a couple of drinks...

  • gaoxiaen||

    Everyone's comfortable around big dogs, didn't you know that? And dogs never want to sniff something that smells like a butthole, right?

  • Capt. Rimmer||

    What a coincidence those public safety exceptions to the 4th amendment were pulled out of someone's ass.

  • AdamJ||

    Well done

  • Carolynp||

    Lovely.

  • waffles||

    I find it disturbing that the police can rape you and then charge you for the service.

  • db||

    Technically it is the hospital who is charging him I think.

  • R C Dean||

    Same company, different division: the hospital is a County hospital.

    The private hospital they went to first refused.

  • ||

    Given that the police ordered the services rendered against the man's will, on the authority of an invalid warrant, the police are the ones on the hook for the bill.

    Not their victim.

  • Tim||

    Wikipedia on Rochin vs California ( I thought this was law but I guess somewhere along the way it was overturned)

    “ . . . a conviction which rests upon evidence of incriminating objects obtained from the body of the accused by physical abuse is as invalid as a conviction which rests upon a verbal confession extracted from him by such abuse. . . . Had the evidence forced from defendant's lips consisted of an oral confession that he illegally possessed a drug . . . , he would have the protection of the rule of law which excludes coerced confessions from evidence. But because the evidence forced from his lips consisted of real objects, the People of this state are permitted to base a conviction upon it. [We] find no valid ground of distinction between a verbal confession extracted by physical abuse and a confession wrested from defendant's body by physical abuse.

    http://en.wikipedia.org/wiki/Rochin_v._California

  • Rich||

    "I did notice his posture to be erect"

    "I did notice his posture to be slouching" or "I did notice his posture to be supine" would also have been acceptable.

  • gaoxiaen||

    "Wide stance" would probably be better.

  • The Late P Brooks||

    One thing the Chinese do which I firmly believe we should emulate is the execution of public officials. The cops who started the ball rolling and the doctors who signed off on this should be guillotined.

  • pan fried wylie||

    Abuse under color of authority is one crime I have no qualms about applying the death sentence to.

  • AdamJ||

    Absolutely. Ken Anderson, COME ON DOWN!

  • Carolynp||

    While I vehemently protest the concept of execution as a suitable punishment for this, I am given to understand the first doctor they took the guy to refused to perform for ethical reasons. I'd love to hear more about that story.

  • BDub||

    Agreed.

  • ||

    And oddly enough, US law is in complete agreement with you in this case. Here's a link to the Department of Justice, they explain the relevant law far better than I could typing on my iPad:

    http://www.justice.gov/crt/about/crm/241fin.php

  • DenverJay||

    Nope. The guillotine was specifically invented as a humane and painless method of execution. The proper sentence is death by crucifixion. Line the streets with slowly dying petty tyrants, and I bet the line at the DMV starts moving just a little bit faster...

  • wareagle||

    FYTW Clause, no?

  • Wayne||

    Good post on this case explaining the need to understand both sides.
    http://backwoodshome.com/blogs.....h-sides-2/

  • Randian filtered me, I WIN!||

    God that post was a steaming pile of cop apologia.

  • Wayne||

    Actually was pretty well done written from how the legal system works (instead of how people think it should work). I'm not a LEO but been around them enough to know that usually what you read about the police and their "mis-treatment" towards people is usually far off base.

  • Loki||

    Alt Text: "Your colon: what does it look like?"

  • ||

    If there is any sanity in the legal system the cops and the medical personnel involved will all face criminal charges.

    I could see giving them a pass if it had only been a single anal cavity search. But you simply do NOT render someone unconscious against their consent to perform a search. I don't care if you think someone a drug mule with their guts full of heroin capsules. If you think their ass is full of drugs, give them a diuretic and hold them for a day.

    The only legitimate reason to render a suspect unconscious is if they are a physical threat to someone else's life.

  • Capt. Rimmer||

    Smelling the victim's fingers should be a prerequisite to doing an anal search.

  • grey||

    They came so close to protecting Mr. Eckert from himself. It seems to me that one more procedure was needed, you know, to protect him from drugs.

  • The Late P Brooks||

    explaining the need to understand both sides.

    FUCK OFF, SLAVER.

  • The Late P Brooks||

    Massod Ayoob: BOOTLICKER.

  • kentek||

    And, according to his lawyer, the hospital billed him $6000!

  • Dread Pirate Roberts||

    Those quacks have no business practicing medicine on human beings. Stripping them of their licences and shutting down the hospital of horrors would be a good start.

  • ||

    Well of COURSE it was illegal!

    A valid warrant is what makes otherwise-illegal behavior legal. What would be (for example) breaking & entry and residential burglary without a warrant becomes a lawful search and seizure action with one.

    But because the warrant specified a time and place it was valid, and the 'search' took place outside of those limits, there was no valid warrant at the time and place Mr Eckert was violated.

    Without a warrant, what would have been an arguably excessive force and overreach becomes unquestionably a series of rapes and sexual assaults. Mr Eckert had rights to due process, to be free from unreasonable searches and seizures and to not be punished until AFTER a conviction. Every single one of those rights was violated.

    Title 18. Chapter 13, Section 241 of the US Code makes it a crime punishable by ten years in prison for two or more people to conspire to violate a constitutional right of anyone within territory controlled by the United States. Each right so violated would be a separate count. Each unlawful search was a separate count. Section 241 also states that if the violation of rights involves a sexual assault (and this one involves many), then the punishment is increased to life in prison or execution.

    Every police officer involved in the illegal searches, as well as every doctor who committed sexual assault at the behest of an invalid warrant is equally guilty of the conspiracy against Mr Eckert's rights.

  • ||

    I question whether any search warrant that authorized incapacitating someone so as to perform a colonoscopy would be valid.

    If X is unconstitutional, no judges stamp can render it legal. All such warrents are by definition invalid.

  • reardensteel||

    That's a good point.

    If you have the right not to speak without a lawyer present, you definitely have the right not to be knocked out without a lawyer present.

  • SQRLSY One||

    Everyone wants to hang the doctors and policemen “whores for the State” here, but what about the frickin’ JUDGE who issued this kind of search warrant in the first place??!? Take him/her out back and shoot him/her dead right now, if I had my way… What are the chances that we will get THAT kind of result out of Government Almighty’s court systems that supposedly serve us?

  • DenverJay||

    Again, shooting, if done properly, is fairly painless and quick. I still prefer crucifixion.

  • BDub||

    I see no mention of the fact the medical procedures were executed in a different county than the warrant was issued for. Is that not relevant to the legality of the search?

  • reardensteel||

    Another reason this is so messed up... all the police had to do was wait for the putative contraband to come out naturally. It would have cost nothing.

    The only reason not to just wait: they wanted to do all those things to him.

    Sick.

  • SQRLSY One||

    Hey Dudes Dudettes & Dudesses, I also gotta say this… If given the choice of having the space aliens anally probe you like this, or having Government Almighty probe you like this, and then BILLING you for it, which would you choose, and why? Me, I would choose the space aliens, ‘cause at least THEY (from what I see in the movies at least), have the decency to shine the “neuralizer” / bright red flashy thingee in yer face, and then we ALL forget about the trauma, AND the bills, fer the sake of Guv-Mint Almighty! Well heck, charge it ALL to Obama-Scare, and see if I care!!!

  • AlgerHiss||

    Was it legal? Perhaps.

    Was it moral? Absolutely not.

  • Ama-Gi Anarchist||

    Legal it might be, but it was Unlawful as hell.

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