Invasive

11.14.13

Dog Orders Cavity Search; Lawsuits Ensue

In three separate cases, a New Mexico citizen says a false alert by a drug-sniffing dog led to hours of invasive and humiliating anal probing. Can the police really blame the pooch?

Trained police dogs have proven highly effective in detecting the odor of drugs. But is their sniff strong enough for an entire legal system to rest on?

Late last year, a New Mexico woman described as a homemaker in her mid-50s was crossing from Juarez, Mexico into El Paso, Texas when a detector dog on the scene, according to the ACLU, signaled that drugs were present near her. For the wife and mother—a U.S. citizen who had not a single drug use or possession charge—the dog’s alert set off a living nightmare.

“She was stripped naked, asked to spread her genitalia, and cough. Federal agents pressed their fingers in her vagina and anus,” says Laura Schauer Ives, the legal director of the American Civil Liberties Union in New Mexico who is now representing the woman in a case that will be formally filed in the next few weeks. Despite the fact that nothing was revealed, and in the absence of a search warrant, the officials continued their search. The woman was transported to University Medical Center in El Paso, where authorities subjected her to a bio-manual cavity search of her anus and vagina, an extensive search of her bowel movement, and eventually, a CT scan.

A year later, Schauer Ives says her client—who is concealing her name because she considers herself the victim of sexual assault—is “profoundly traumatized” and rarely leaves her home. “It made no difference that these were physicians. It was not like a gynecological exam. This was done against her will. She was terrified.”

Schauer Ives says the ACLU plans to sue customs and border protection, as well as the individual doctors involved. The University Medical Center of El Paso declined to comment for this article; the names of the doctors have yet to be released. Roger Maeir, Public Affairs Specialist from U.S. Customs and Border Protection, sent The Daily Beast the following statement:

"CBP cannot verify information relative to these ACLU allegations since we have not seen a copy of the report, nor have we been provided necessary details in order to investigate. CBP stresses honor and integrity in every aspect of our mission, and the overwhelming majority of CBP employees and officers perform their duties with honor and distinction, working tirelessly every day to keep our country safe. We do not tolerate corruption or abuse within our ranks, and we fully cooperate with any criminal or administrative investigations of alleged misconduct by any of our personnel, on or off-duty."

Horrific as the story is, it is not unique. In fact, it is one of three anal probing lawsuits to make headlines out of New Mexico this week. Each case has the same elements: an alert from a trained detector dog (in two of the same cases, the same dog), followed by an invasive cavity search and, ultimately, a complete lack of any found drugs. Attorneys and civil-rights activists are appalled. And in the wake of a recent Supreme Court decision mandating that alerts from trained detector dogs be “probable cause” that narcotics are present, the litigation has put new scrutiny on the reliability of drug-sniffing dogs.

“At this point, it seems authorities are using this dog as an excuse to do these highly invasive and morally repugnant searches,” says Shannon Kennedy, a civil-rights lawyer who is now representing the other two anal probing victims. "This was medical anal rape."

Kennedy’s first case—dubbed the “traffic stop nightmare” by Albuquerque news outlet KOB, which first reported the ordeal—is the one that skyrocketed the assaults into the national discussion. The central character, David Eckert, a 52-year-old scrap metal worker, was headed to Walmart on January 2, 2012 when authorities pulled him over for failing to stop at a stop sign. Upon approaching his vehicle, the police officer became suspicious of Eckert’s posture, which is described in court documents as “erect and he kept his legs kept together.” The officer claims that at this point, the plaintiff gave him the authority to search his vehicle—something that Eckert “vehemently denies” in the complaint. Following this, another officer and his K9 “Leo” arrived on the scene. Although the search of Eckert’s car had begun “without probably cause,” as the complaint states, a positive alert for drugs from Leo allowed the officers to obtain a search warrant. Once back at the station, authorities began what would turn into an unimaginable 12-hour ordeal which Kennedy describes as a “fishing expedition inside someone’s body.” The search consisted of at least eight medical procedures including numerous X-rays, three enemas, and ultimately, a colonoscopy at 1 a.m. At the end, the officers concluded that no drugs were present, and Eckert was sent home.

Leo, they realized, had been wrong. It wasn’t the first time.

"This was medical anal rape."

Three months before Eckert’s nightmare, Leo made another false positive. As detailed in the formal complaint Timothy Young was pulled over on October 13, 2013 for failing to use his turn signal while making a turn. After finding an “open container,” as the complaint states, in Young’s vehicle, the officers once again called on K9 Leo. Once again, Leo alerted the officers to drugs. Once again, he was wrong—a conclusion that was not reached until Young was taken to Gila Medical Center (the same facility Eckert was taken to) and subjected to similar humiliating procedures to search his anus for drugs.

(Regarding both Eckert’s and Young’s cases, the law firm representing the defense, Holt Mynatt Martinez P.C., declined to comment for this article. The Hidalgo County Police Department and the office of Gov. Susana Martinez declined to comment as well.)

“They [the officers] knew this dog was unreliable and they were deliberately indifferent. They knew Leo was not reliable,” says Kennedy.

Part of this unreliability may have been that Leo’s certification, which must be renewed each year, expired in 2011. But while has become something of a scapegoat—one news item labeled him the world’s worst drug-sniffing dog—blaming the pooch may be missing the point. Drug detector dogs aren’t born, they’re made. “Dogs don’t train themselves, they learn what is expected of them from humans,” Mary Cablk, a research professor at the Desert Research Institute who focuses on canine detection tells The Daily Beast. “To me this about the leap between the dog’s behavior and where you search. I’ve never seen a study indicating that dogs are capable of detecting odors inside the human body. There’s nothing in the scientific record to prove that is possible.” In the Young case, for example, the complaint states that Leo alerted the officers to the car seat. It was their conclusion that his anus was where the drugs were located, not the dog’s.

To critics of the war on drugs, the anal probing cases are about more than just dogs. “This was a gross abuse in a search but every year you have millions of Americans being stopped, frisked, and more without probable cause,” says Ethan Nadelmann, the executive director of Drug Policy Alliance, a national advocacy nonprofit leader of drug law reform. “It’s a violent act by authority whose only reason for stopping them is the belief that there’s a tiny amount of drugs...a belief they’re often wrong about.” In 2012, there were over 1.5 million drugs arrests nationwide—more than 80 percent of them for possession alone. While there’s no simple solution, Nadelmann says the first step is decriminalizing possession.

For Kennedy it’s the audacity of the officers that stands out the most. "There hasn’t been adequate supervision of these officers. Now we have to publicly disclose humiliating degrading things that have happened to their victims. It’s shocking the level of arrogance that they thought they could get away with it.”