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]

A couple of questions -

You would expect to be allowed an interlocutory appeal? It is very unusual.

Based on the bare complaint - I would not throw myself on the mercy of the court either, which is why I have said assuming the allegations to be true. But by trial I'd expect to know enough to be able to assess how strong the complaint in fact is.

There are situations where trying to defend liability may prove much more expensive - where it will antagonize a jury. This does look like a case where that is a definite possibility.

[MacK]

FYI, an SJ motion in the case

http://s3.documentcloud.org/documents/815467/eckertmotion.txt

[MacK]

A better link:

http://www.scribd.com/doc/181891700/Eckert-v-City-of-Deming-Doc-27-0

[Anon]

On the updates, I always wonder what justification a Law Professor would have for blogging without having read the complaint and basing it on other blog posts? Is there some reason to be "first" without worrying about being correct? Seems kind of inexcusable on the whole.

[nosedive]

Thanks for the link to the SJ motion Mac. It was a nice try but I don't see the court granting it assuming a competent response disputing the facts/law. Not to say that plaintiff won't win the case eventually (he will). I'm sure the allegation that the plaintiff was free to leave but chose not to do so will be made and backed up by multiple law enforcement officers present at the time.

My favorite part is at the end of the motion regarding the dog search. "Here, the dog's sniff is not up to snuff. Regardless, the dog did not alert to Plaintiff's anus or to his person even."

That's motion writing gold.

[MacK]

The SJ motion did provide a lot more of the facts, including some nice details like the affidavit for the warrant, the bizarre argument that he was not under arrest while handcuffed for 12 hours, the suggestion that he did not object to his anal violation (the answers are a good read too.) And number of the answers admit that there was no arrest warrant. To be honest, the whole thing is beginning to sound like a total cluster....

The main benefit of the SJ motion is that it will require a response from the defendants ... and that should be interesting.

I did read Orin's VC posting - it is a pity he did not seem to see this motion beforehand as there is a quite a lot of 10th circuit law in it. I think Orin is right by the way, to paraphrase his point that somewhere around the second enema any chance of their getting out of this simply fell apart.