I’m No Fourth Amendment Expert, But…

UPDATE 11/7/13, 1:50 pm: Thanks to MacK for providing a link to Eckert's motion for partial summary judgment in the comments below. That motion cites much of the search warrant affidavit, but Ken White at Popehat has now posted and analyzed the affidavit itself.

In the affidavit, Officer Chavez does allege that Eckert's posture was "erect" and that he "kept his legs together" — but also that: Eckert avoided making eye contact with the officer as he asked him for his license and registration; that Eckert's left hand was shaking as he handed Chavez the documents; that Eckert "stated that he had a problem with [Chavez] searching his person"; that the canine LEO, upon being walked around the outside of the vehicle, "alerted to the driver's side of the vehicle"; that the canine LEO, upon making entry into the cab of the vehicle "a short time later," alerted to the "driver's side seat"; and that the K-9 officer said that he "had dealt with Mr. Eckert on a previous case and stated that Mr. Eckert was known to insert drugs into his anal cavity and had been caught in Hidalgo County with drugs in his anal cavity."

UPDATE 11/7/13, 6:15 am: As I implied in the OP (which is now below the fold), and as I stated explicitly in my comment at 7:26 pm last night, "what primarily struck me as remarkable about the Eckert case is that the apparent bare (no pun intended) fact of buttock clenching could constitute probable cause of drug possession." Unfortunately, as I had acknowledged by 10:14 pm, after I had finally gotten around to reading the complaint,

it seems that, contrary to what I complained about above, and how the media has portrayed the case, there were, in fact, additional alleged bases for probable cause beyond the infamous clenched buttocks -- namely, a canine LEO that alerted to Eckert's car seat and one officer who claimed that Eckert was known to conceal drugs in his anal cavity.

To be sure, as I also noted in that 10:14 pm comment, "the complaint alleges that there were problems with the canine LEO known to the officers and that the officer who made allegations about Eckert's habit of drug concealment knowingly lied about this." And to be sure, even if there was probable cause for an initial one, or even two or three, searches, that doesn't resolve questions about the appropriateness of either the officers' or the doctors' roles in performing eight invasive-but-fruitless searches over the course of several hours. Still, I was initially moved to blog about this case primarily because of the absurdity of concluding probable cause from buttock-clenching-without-more. I maintain that that would indeed be absurd. Yet even the plaintiff's own complaint presents a much more complex (if not necessarily benign) picture of the alleged basis for the searches.

I wrote the OP entirely on the basis of the two media/blog reports that I linked to in the OP, both of which framed this as the Buttocks Clenching Case, and neither of which included a link to the complaint (both sources have since updated their posts to embed the complaint or include a link to it). A successful Google search for a publicly accessible copy of the complaint, and the resulting link to it, was a last-minute addition to the OP as I rushed out the door. I did glance at the first few pages, where I noticed that the suit covers an earlier traffic stop as well, something that I hadn't seen mentioned in the media reports on which I was relying. That fact alone should have alerted me to the likelihood that there was more to the story—even from the plaintiff's own perspective, as articulated in the complaint—than the media were reporting, and persuaded me to hold off on pressing the publish button.

As he promised in the comments here, Orin Kerr has offered early this morning a typically thoughtful analysis of the case over at VC. Read the whole thing, but for present purposes, this is worth highlighting:

Some media coverage on this case focuses on the line in the affidavit that the officer had apparently said that Eckert had a stiff posture and kept his legs together, which some blog posts are reporting as the sole basis for the warrant. The HuffPost article on the case offers this inflammatory opening line: “A New Mexico man is alleging abuse after authorities conducted three enemas, a colonoscopy, an X-ray and several cavity searches on him simply because he appeared to clench his buttocks.” As a result, a lot of folks in the blogosphere seems to be thinking of this as the “clenched buttocks” case (thus the title of this post, so people know which case I have in mind). But that seems like at most a very small picture of the alleged cause, and we don’t even know if that was in the affidavit. The likely basis for the alleged cause is mostly the drug-sniffing dog’s alert to the driver’s seat that is the likely basis for probable cause.

Orin ends his post by noting that although "some readers are going to be irate that I am providing a legal analysis on an emotional case, and others will be annoyed that I haven’t reached a clear answer," his "comparative advantage is analysis rather than emotion." I actually like to think that that is more often than not my comparative advantage as well, and I regret that it wasn't this time. Mea culpa.

…I'm guessing that this doesn't pass constitutional muster.

According to allegations, on January 2, 2013, David Eckert was pulled over by police for failing to come to a complete stop at a stop sign as he pulled out of a New Mexico Wal-Mart parking lot. The officers asked Eckert to step out of his vehicle (why?), at which point they observed him clenching his buttocks. Said clenched buttocks, police apparently decided, constituted probable cause for an anal cavity probe in search of narcotics.

Yes, really.

Even more unbelievably, a judge agreed: While officers detained Eckert, they managed to obtain a search warrant for, well, Eckert’s anus. Officers took Eckert to a medical center where, according to medical records that Eckert later shared with a local media outlet:

1. Eckert's abdominal area was x-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert's anus to insert an enema.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.
5. Doctors penetrated Eckert's anus to insert an enema a second time.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.
6. Doctors penetrated Eckert's anus to insert an enema a third time.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines.  No narcotics were found.

Throughout his ordeal, Eckert protested and refused to consent to any of the procedures. One silver lining to this story: at least one doctor, at a local emergency room where officers had first taken Eckert, refused to perform the cavity search or other procedures, calling them “unethical."

Not surprisingly, Eckert is suing…everyone, including The City of Deming; Deming Police Officers Bobby Orosco, Robert Chavez and Officer Hernandez; the Hidalgo County; Hidalgo County Deputies David Arredondo, Robert Rodriguez and Patrick Green; Deputy District Attorney Daniel Dougherty; and the Gila Regional Medical Center, including Drs. Robert Wilcox and Okay Odocha.

The complaint (which I've only had time to skim before running out the door for a meeting; I may have more to say about the medmal claims later) also covers an earlier worrisome traffic stop (for a cracked windshield) in September of 2012 that involved Eckert and one of the officers involved in the January 2013 incident. This earlier incident—which also involved the officer's suspicion that Eckert was involved in illegal narcotics and also turned up no such evidence—seems to have left no love lost between the two, which probably helps explain (not to say justify) the January 2013 incident.

Among Eckert’s allegations: the search warrant was overly broad, lacked probable cause, was invalid in the county where it was executed and had expired by the time it was executed. The last two technical violations, if true, may be enough to support Eckert’s suit. But for its precedential value, I would hope that the court would also find that the search warrant was improvidently granted. If clenched buttocks constitute indicia of criminal activity sufficient to justify an anal cavity search (much less multiple x-rays, enemas, and a forced colonoscopy under medical sedation), we are all in trouble.

H/T my HLS Section 6 classmate and Institute for Justice attorney Dan Alban, via Facebook. (The IJ is not involved in this case.)

Comments

[MacK]

Horrified though I am, I could not help but wonder at the chilling effect this sort of search based on merely clenched buttocks could have on well known character actors….see

http://www.theguardian.com/tv-and-radio/shortcuts/2013/nov/05/hercule-poirot-david-suchet-bottom-coin-agatha-christie

[MacK]

May I add, having read the complaint, that almost all the defendants should (assuming the accuracy of the statement of facts), be facing very serious criminal charges.

[Orin Kerr]

There are a lot of issues here, but here are two relevant citations:

1. The police are allowed to order the driver out of a car during a valid traffic stop. See Pennsylvania v. Mimms, 434 U.S. 106 (1977)

2. The case governing when the police can obtain a warrant to conduct a compelled surgical intrusion (vs. when no warrant can be obtained) is Winston v. Lee, 470 U.S. 753 (1985).

[MacK]

In ways the more interesting issue is that the warrant had expired and perhaps that the searched were performed outside of the territorial jurisdiction of the warrant (they moved him out of the county to find a willing doctor.)

The astonishingly venal item is that the medical center involved actually sent a bill to the person they performed the involuntary searches on.

[MacK]

One more comment or suggestion -

If professors are using this case to teach with, please try to go beyond the basic 4th Amendment issues to teach some practice orientated issues. The big one to try to teach, particularly for law students who may end up in-house or in a compliance orientated environment is the behavioural issue.

That is to say that as you read through the complaint what is striking is that at no point did any of the defendants take a breath and ask themselves - "are we going too far? are we over the line?" No one seems to have said anything like "what we are doing is really stupid" and to put it bluntly, "we are in a hole here, maybe we should stop digging."

If you litigate, or you are a General Counsel, you run into this issue a lot - people just turning off their judgment and common sense (GCs complain constantly about Human Resources departments in this regard.) Part of being an effective counsellor is finding ways to "put the brakes on" so that someone along the line says "whoa! - stop stop." Another part of it is second guessing yourself, questioning the strategy and approach you are following, and learning when to abandon it.

In short, can I suggest that in using this case to teach, professors ask students to discuss "what do you think was going on here?" "why did they not stop at the first cavity search?" 'why did they not doubt" and "what measures would you think necessary to prevent this sort of behaviour?"

[nosedive]

It's sad that the courts have gutted the Fourth Amendment as it apples to searches like this. Terrible that this case will in all likelihood need to be won on procedural issues (expired warrant, search performed out of jurisdiction) rather than on the nature of the search.

[MacK]

Nosedive:

I think that there is no question that the warrant was totally illegal even today - read Winston v. Lee. Also, much as I detest most of the conservatives on the Supreme Court - they have had some strong 4th Amendment decisions.

On the issue of practice orientated issues - if I was the city or the county's lawyer, if the facts of the complaint are true, I would considering trying to:

(a) get a criminal investigation of the case - which might result in criminal charges for many involved;

(b) get a stay of proceedings on 5th amendment grounds pending the criminal trials (i.e., impossible to mount a defines while facing criminal charges (sometimes works));

(c) fire a bunch of people, perhaps including the chief of police (he flunked the chance to get ahead of this);

(d) hopefully be in a position at a civil trial to,

(i) point to the criminal charges (and maybe convictions);

(ii) the firings;

(iii) admit and agree that the conduct of all involved was utterly deplorable;

(iv) admit liability and try to keep the damages as low as possible.

As for the clinic's GC - to accounting "you sent a bill! are you crazy - why did you not just sign a confession??" If you read the complaint - you will note what a colleague pointed out - some of the description of the colonoscopy evidently quotes the clinics bill. What will they argue - the bill was fraudulent - "hey we're crooks not anal rapists?"

There is a lot of potential teaching material in this case beyond the 4th Amendment.

[KP]

The result to anyone reading this will be an unconscious clenching of the buttocks the next time a copy orders you out of the car.

[Orin Kerr]

MacK writes:

***********
If professors are using this case to teach with, please try to go beyond the basic 4th Amendment issues to teach some practice orientated issues. The big one to try to teach, particularly for law students who may end up in-house or in a compliance orientated environment is the behavioural issue.

what is striking is that at no point did any of the defendants take a breath and ask themselves - "are we going too far? are we over the line?" No one seems to have said anything like "what we are doing is really stupid" and to put it bluntly, "we are in a hole here, maybe we should stop digging."
***********

But that's striking only if you expect the plaintiff to know what the defendants were thinking and to decide to include those thoughts in the complaint. One lesson I would draw in teaching this is that a complaint is only a complaint: It's a one-sided allegation, not the full picture of what happened.

(BTW, I'll be blogging about some of the 4th Amendment issues at the VC later tonight.)

[Orin Kerr]

MacK writes: "I think that there is no question that the warrant was totally illegal even today - read Winston v. Lee."

Additional practice tips I would include would be (a) read lower court cases interpreting Supreme Court decisions, rather than just one Supreme Court decision, before announcing a strong conclusion about the legality of government conduct, and (b) pay careful attention to remedies, and in particular qualified immunity doctrine -- especially given that the standard for qualified immunity is the same standard for a criminal prosecution under United States v. Lanier.

:)

[MacK]

Orin -

That is why I said "if the facts of the complaint are true"

Though I have to say … upon reading the complaint - it is very much a stark factual recitation.

Can you find the various defendants' answers and post them. We have been wondering - not so much as to spend the PACER credit, but still….

I do agree that complaints are usually one sided - of course. However, this is the way I would draft this complaint if it was my case - the alleged facts are bad enough - you do not need many adjectives! It is if anything more powerful by being a cool recitation. You only need to spin a weak case - a strong case benefits from a lack of spin.

At the same time, do you agree that the points I explained need to be taught? There is room to teach more than the 4th Amendment in this situation.

[MacK]

Orin - on rereading:

"But that's striking only if you expect the plaintiff to know what the defendants were thinking and to decide to include those thoughts in the complaint."

Why?

As a factual scenario it does not matter for teaching purposes whether the plaintiff "knows what the defendants' were thinking." My teaching point is to try to understand, assuming arguendo the complaint is true, why none of the …

defendants take a breath and ask themselves - "are we going too far? are we over the line?" No one seems to have said anything like "what we are doing is really stupid" and to put it bluntly, "we are in a hole here, maybe we should stop digging."

This is a real legal practice issue. It may seem that all practicing lawyers do is clean up messes like this, but a lot of what we do (perhaps to the detriment of our overall business) is to try to take the shovel away before anyone even starts digging, or catch them before the hole gets too deep. If you look at this as a pure 4th Amendment issue you miss the practice lessons that can be drawn from this sort of mess.

[Orin Kerr]

MacK,

From a teaching perspective, it all depends what you're trying to teach. For any dispute, you can talk about how you would approach it if you're the lawyer for one side or the lawyer for the other side -- and in a case with many defendants, a lawyer for any of those defendants -- both from the standpoint of the legal merits, PR, institutional interests, etc. I think that's pretty obvious to students that the strategy depends on what role you're playing, not just the abstract merits of the constitutional question.

I'm not sure it would be a good idea to admit liability and discuss damages, though. The qualified immunity standard is really high, and there's a decent chance they can get by it in light of the murkiness of the reasonableness balancing and the relatively light lower court caselaw.

As for what the defendants were thinking, my point is that even if the defendants spent a lot of time asking those questions, it wouldn't end up in the complaint. Maybe the police were on the phone with lawyers for hours trying to figure out if they were going too far, and they decided that this was justified to catch such a well known drug dealer (they thought, at least). We don't know because the plaintiff wouldn't know, and he wouldn't include it in the complaint if he did.

Finally, in terms of alleged facts and spin, the problem is that the constitutionality of the conduct depends in good part on the factual basis for why the officers thought their conduct was justified. The complaint recites what the offices did, but it doesn't offer the factual basis of why they did it: Instead, it just asserts that the officers had no factual basis for anything they did. The constitutionality of the conduct depends on the why as much as the what, and the complaint isn't going to tell us that part of the picture.

[Michelle Meyer]

Thanks, all, for the lively comments. I may be off base here, but I think Orin and MacK may be talking past each other, at least to some extent.

Orin, re: your 5:27 comment, I didn't read MacK at 10am as criticizing any omission in the plaintiff's complaint. To the contrary, I took him to be noting that not all law grads will become litigators who draft complaints at all. Some of them will work as in-house counsel or in compliance environments where job success may be measured at least in part by the lawyer's ability to set or advise on policies or otherwise shape (e.g., employee) behavior in ways that prevent or at least mitigate institutional liability at least as much as the lawyer's success is measured by mastery of 4th amendment (or whatever) doctrine.

To wit, besides Rochin (which has lasting vitality in the health law/law & bioethics/substantive due process bodily integrity area but, I gather, is a dead letter for 4th Am purposes), the other "case" this incident immediately brought to mind for me was Milgram's obedience studies (for the doctors) as well as theories of tunnel vision, motivated reasoning, and cognate behavioral theories (for the cops; e.g., was the cop who was thwarted, and perhaps embarrassed, in the 2012 incident hell bent on proving himself right in 2013 by seeing a simple twitch of the buttocks as furtive movement?).

The point I took MacK to be making is that some practicing lawyers encounter patterns of behavior that pose risks of liability and are responsible for trying to understand and correct those patterns or mitigate the damages that flow from them. Of course, the behavior that in-house counsel and compliance folks encounter isn't likely to include anal cavity searches (and so a case study a bit closer to home might be better), but I took MacK to be making the simple -- albeit controversial (see, e.g., Paul Campos here: http://taxprof.typepad.com/taxprof_blog/2013/11/zelinsky-.html#comments) -- point that this case could be instructive even for lawyers who don't work in criminal law at all.

But, again, I may be misreading MacK. If so, my apologies, and carry on :)

[Orin Kerr]

Also, on para #2 above, I should also add that it depends on who the "they" is representing the officers. If officers are represented by private lawyers hired by insurance companies pursuant to indemnification policies, then they won't care about any institutional concerns.

[Orin Kerr]

Michelle: "Orin, re: your 5:27 comment, I didn't read MacK at 10am as criticizing any omission in the plaintiff's complaint."

Oh, I didn't read him as criticizing any omission in the plaintiff's complaint, either. I took him to be criticizing the defendants for not thinking more about the liability issues. My point was just that we don't know how much the defendants thought about the liability issue, as if they thought a lot about it we wouldn't know about it from the complaint.

Oh, and I realize that MacK is making the point that lawyers should think about minimizing legal liability over the long run, not just in litigating one case. But I take that as obvious, even to legal academics.

[MacK]

Orrin,

I was not so much criticising the individual defendants as making a somewhat different point. As a practicing lawyer I regularly run into situations (say an opposing counsel concocting evidence) where it is apparent that people simply "lost the run of themselves" - where they engaged in what Barbara Tuchman described as "Folly." In practice part of what we do is try to prevent this sort of progression deeper into disaster. Part of doing that is understanding the intellectual calculations, or absence of them that lead the protagonists down such a path.

Part of litigating that sort of case is also trying to understand how the other party was thinking and guessing, hopefully, at what other inanities they might also have engaged in - and then looking for evidence. In this case, by around the third enema, maybe earlier, these guys seem to me to have been on a desperate hunt for weapons of mass destruction to justify their earlier searches. However, it was not en enormous surprise to discover that the unfortunate Mr. Eckhart was not the first person they had done this to.

What I am trying to say is that a case like this can be used to do more than teach the 4th Amendment - it can be used to make very practical points to law students. One example. I gave is that, assuming the facts are true, perhaps trying to defend liability is not a smart move .... It may be wiser to concede it as a strategy to limit damages.

When you say that limiting liability over the long run is obvious - well yes on the principle - but how about the practice ....

[Michelle Meyer]

On the merits, I agree with what I take Orin to be saying, namely that:

(1) there’s a very high bar for overcoming the presumption of qualified immunity; and

(2) finding that the warrant ordering the various interventions on Eckert isn't a slam dunk even under the Schmerber/Winston v. Lee balancing test (much less the progeny these cases have spawned in the lower courts, which I’ve not read). As far as I can tell based on my quick read of Winston, the relevant procedure there was to be conducted under general anesthesia, with all its concomitant risks, which the Court found relevant, whereas the interventions here required mere sedation (or nothing). In that case, there was apparently ample additional evidence of criminal guilt that lessened the need for the surgery while here there was apparently no other evidence of guilt. And so on. (I will grant that Eckert’s “dignitary interests” are implicated in spades here.)

On the other hand,

(1) although the high bar for overcoming qualified immunity may prove dispositive for the question of the scope of the warrant (thereby allowing the court to annoyingly refrain from ruling on the constitutionality of the underlying search), wouldn’t the fact that the warrant was executed out of jurisdiction and out of time suffice for the “plainly incompetent” standard?; and

(2) the Schmerber/Winston analysis assumes that the “threshold” requirement of probable cause has been met, and asks whether some methods of searching are so infringing upon privacy/bodily integrity that they are nevertheless unreasonable. But what primarily struck me as remarkable about the Eckert case is that the apparent bare (no pun intended) fact of buttock clenching could constitute probable cause of drug possession justifying even the *first* digital anal cavity search. That’s where I thought the rubber might hit the road in this case. But as I said in the title of the OP...

In any case, Orin, I’ll look forward to reading your take on the 4th Am issues over at VC and will happily go back to blogging about things in my own wheelhouse.

[MacK]

On the qualified immunity issue Michelle - would you not expect that to be resolved on pre-trial motions? If so, and the city and county lost on qualified Immunity, would you continue to defend liability?

[Michelle Meyer]

MacK, I would expect the question of the officers' and doctors' qualified immunity to be resolved through interlocutory appeal. But since qualified immunity isn't available to municipalities, and since respondeat superior liability doesn't apply to §1983 claims, I would think that my litigation strategy as counsel for the city (or county) would depend on the facts pertaining to the city's direct liability for what happened to Eckert. Even assuming its allegations are true, the complaint (which I just now finally got around to reading) is too light on such facts (just a bare assertion that the municipalities have a "policy of transforming ordinary traffic stops into invasive searches and seizures") for me to say what I'd do.

For instance, it seems that, contrary to what I complained about above, and how the media has portrayed the case, there were, in fact, additional alleged bases for probable cause beyond the infamous clenched buttocks -- namely, a canine LEO that alerted to Eckert's car seat and one officer who claimed that Eckert was known to conceal drugs in his anal cavity. The complaint alleges that there were problems with the canine LEO known to the officers and that the officer who made allegations about Eckert's habit of drug concealment knowingly lied about this. Assuming that these allegations are true, I would still want to know (1) to what extent these problematic bases for probable cause were relied on in the affidavit supporting the search warrant, and (2) to what extent those problematic bases reflected either city policy or the city's pattern of indifference to bad apples in the police department. Whether I would effectively throw myself on the mercy of the court, as you seem to suggest, or fight on would depend on answers to these and similar questions.