I wrote previously about a pending lawsuit to be filed by the ACLU on behalf of 54-year-old Jane Doe, a U.S. citizen who alleges that she was subjected to six hours of increasingly invasive cavity searches by U.S. Customs and Border Protection (CBP) agents and clinicians at the University Medical Center of El Paso as she attempted to return to the U.S. from Mexico via the Cordova Bridge in El Paso, Texas. That lawsuit has now been filed.
The facts alleged in the complaint, which are more or less those previously alleged in the media by Doe through her lawyer, are horrific. Here's the gist (Doe consented to none of the following searches, and none turned up any evidence of contraband):
- After she presented herself for inspection at the check point, a CBP agent confiscated her passport and told her she'd been randomly selected for additional screening.
- She was then subjected to an over-the-clothes frisk, in which a female agent "ran her finger over Ms. Doe’s genital area" and then, after ordering Doe to squat, "put her finger in the waistband of Ms. Doe’s pants and inserted her finger in the crevice of Ms. Doe’s buttocks."
- Doe was then told to stand in line with other people, at which point a drug dog appeared to alert to her.
- Doe was taken to a private room, where she was told to drop her pants and crouch. An agent examined her anus with a flashlight. An agent then "parted Ms. Doe’s vulva with her hand, pressed her fingers into Ms. Doe’s vagina and visually examined her genitalia with a flashlight."
- Agents sealed the cuffs of Doe’s pants by taping her pants to her legs. They then transported her, handcuffed, to University Medical Center of El Paso, where they handcuffed her to an exam table.
- Medical staff wheeled a portable toilet into the room, instructed Doe to take a laxative, and waited for it to take effect. They then observed her produce a bowel movement.
- Doctors x-rayed Doe's abdomen.
- Agents once again handcuffed Doe to an exam table and watched (along with passersby, since the exam room door was left open) while doctors inserted a speculum into Doe's vagina.
- Doctors conducted a digital probe of Doe's vagina while palpating her abdomen.
- Doctors conducted a digital anal probe of Doe.
- Finally, doctors gave Doe a CT scan.
Having found absolutely nothing incriminating, agents then gave her a choice: Retroactively sign a medical "consent" form and CBP will pick up the medical bill, or refuse to sign and be billed. Doe refused to sign and was later billed over $5,000 for her "treatment." She has not paid.
If true, this fact pattern suggests either that those involved are sadists or—far more likely—that they, like those who searched David Eckert and Timothy Young, are grossly overconfident in the evidentiary signal provided by a K-9 alert.
Under Florida v. Harris,
If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.
I have no earthly idea what a "bona fide" organization means, but my understanding is that there is wide variation in the standards employed by various training and certification organizations, some of which will "pass" a K-9 with a very high false positive rate. Among other things, K-9 responses have been shown to be significantly influenced by their handlers' beliefs about the presence of contraband. Or, on second thought, maybe not.
But even if we assume a very reliable K-9, and whatever we deem the predictive value of a positive test (i.e., an alert), it will be less than 100%. We should update our confidence in the presence of contraband when subsequent human searches yield nothing. And at some point in a series of false human searches following an initial K-9 alert, our updated belief should be considered insufficient to justify continued searches.
Agents and clinicians in this case — who had no reason to suspect Doe other than the K-9 alert combined with the base rate of drug smugglers among those who enter the U.S. at El Paso — behaved as if the reliability of K-9 alerts were 100%, or something very closely approaching it. Since these are the same principles that govern when it is appropriate to offer, and how to interpret the results of, medical screening tests, it's more than a little ironic than so many doctors seem willing to go to the mat for these K-9s and their handlers.