One Traffic Stop-Turned-Anal Probe Is a Nightmare; Two Is a Coincidence? Three Is a Pattern?

Just when you thought David Eckert's ordeal had to be a one-off incident comes news of (1) a second, similar lawsuit filed against the Hidalgo County Sheriff's Office, and (2) allegations (and an impending lawsuit) from a woman who characterizes as sexual assault the repeated, invasive, ultimately fruitless — and warrantless — search of her person by federal agents from U.S. Customs and Border Protection and doctors at University Medical Center of El Paso, Texas (just across the New Mexico border and not far from Hidalgo County).

Second Lawsuit: Young v. Hidalgo County et al.

The second lawsuit was filed on Friday on behalf of Timothy Young, who, like Eckert, is represented by the Kennedy Law Firm (which says it has been receiving still other calls from individuals with similar stories). Young’s case interacts in interesting ways with Eckert’s. Recall that the first of two traffic stops that Eckert has sued over reportedly took place on September 6, 2012 at around 6:26 pm. Eckert says he was stopped by an officer (Rodriguez) from the Hidalgo County Sherriff’s Office for having a cracked windshield and ordered to exit his vehicle because, the officer said, his hands were shaking. The officer wrote him a warning for the windshield and told Eckert he was free to go but continued to interrogate him about what he had been doing and whether he had illegal drugs in his car. Eckert says that Rodriguez then “seized” the car and called K-9 Officer Green and K-9 Luis “Leo” Duffmar to the scene, where Leo apparently alerted to Eckert’s car. The complaint alleges that a search warrant was obtained for Eckert’s car on September 7, but yielded nothing.

In his complaint, Young alleges as follows: On October 13, 2012, around 9:42 pm, he had just pulled into a gas station and begun pumping gas when Officer Peru, of the Hidalgo County Sherriff’s Office — “with several other police vehicles as back up” — “initiated a pre-textual traffic stop" against Young, “falsely asserting that [Young] failed to use a turn signal.” Peru commented that Young looked nervous and that his hands and legs were shaking. Peru began asking Young about his activities that day and about tires in the bed of his truck before noticing that Young’s passenger had an open container.

Peru asked Young to consent to a search of his vehicle based on the nervousness and open container, and said that if Young didn’t consent, that he would only be detained longer while officers obtained a warrant. Young reluctantly consented. Peru noted in the police report that he suspected that Young was under the influence of narcotics because he looked “jittery,” licked his lips, and took his hat off and put it back on. Peru asked Officer Arredondo to call for a K-9 unit, and Green and Leo responded to the scene around 10:30 pm. Leo allegedly alerted to the center of the driver’s seat, the center console, and the left open door of the vehicle. Officers conducted “several searches” of the vehicle but turned up nothing. Around 11 pm, Young withdrew his consent and asked if he could go. Officers said no and continued to search the vehicle.

Green told Peru that the fact that Leo alerted to the center of Young’s seat indicated that Young might have drugs in his clothing or body cavity. Officers asked Young to consent to a “search of his person” and said that if he refused, he would be taken into custody while they sought a warrant. Young says he consented “under coercion.” Arredondo frisked Young and found nothing. Arredondo told Young he wanted to conduct a more thorough search of his underclothing, which Young said made him “extremely uncomfortable.” Arredondo assured Young that he was "not gay and didn’t enjoy these searches," and offered to conduct the search in a gas station bathroom stall, which Young refused. Arredondo conducted a strip search of Young in the gas station parking lot. That search included:

• A thorough pat down of Young’s leg, crotch, and upper torso;
• Young dropping his pants to his knees and shaking his underwear while Arredondo looked in Young’s pants; and
• Young dropping his underwear to his knees, exposing his genitalia in the gas station parking lot.

Arredondo then ordered Young to turn and expose his bare backside to him, which Young refused to do. Green told Peru that it is common for drug couriers to conceal drugs in their body cavities and asked Young, “Is it in your ass?” Green’s comment “greatly alarmed” Young, who told officers that the comment was inappropriate and that he wanted to leave. Green asked Young to consent to an x-ray, which Young declined.

Officers “then took [Young] to the ground and handcuffed him.” They impounded Young’s vehicle to be searched (again) and took Young to a police station, where Green applied for a search warrant for Young’s person. Green apparently received the warrant, with an electronoic signature, at about 1:45 am. Young says the warrant did not indicate where or how Young was to be searched, but merely authorized the search of Young’s person.

Shortly before 3 am, officers transported Young to an exam room at Gila Medical Center, the same place where officers would take Eckert in a few months. En route, when Young asked where he was being taken and why, officers alegedly laughed and said, “You’ll see.” Young was given:

• An x-ray, which revealed no foreign objects; and then
• A digital probe of his anus by a doctor while he laid on a hospital bed surrounded by officers, which also revealed no foreign objects and which Young characterizes as being “raped under color of law.”

Gila Regional Medical Center billed Young more than $600. Young was finally released at around 4:28 am, after almost seven hours of what he alleges was constructive arrest. No drugs were ever found on Young’s person or in his car.

Young is suing Officers Peru, Arredondo, and Green, as well as Hidalgo County, under §1983. Young has not named as defendants either Gila Regional Medical Center or the doctor named in the complaint, perhaps because the exams did not escalate in his case, as they did in Eckert’s, to the point where even physicians with no legal or law enforcement training ought to have wondered about the reasonableness of their actions. Among the numerous 4^th Amendment violations Young allegeges: that officers knew or should have known that the warrant to search Young’s person was facially invalid due to its lack of probable cause and its vagueness; that they knew or should have known that the warrant did not extend to the x-ray or physical body cavity searches; and that by October 13, 2o12, the county and Green knew or should have known that Leo was an unreliable K-9, since he had falsely alerted to a car (Eckert’s) on September 6, 2012.

And of course by January 2, 2013, when Green and Leo respond to the scene of Eckert's second traffic stop and Eckert ends up getting a colonoscopy, Green and the county knew or should have known that Leo had recently twice falsely alerted. In addition, the lawyers have also done some sleuthing into Leo’s background, and allege that either Leo (and possibly Green) was not trained and certified at all for drug sniff searches, or that Leo's certification had expired by the time he alerted to Young’s and Eckert’s vehicles.

The Washington Post reports that Eckert pled guilty to methamphetamine use in 2008. The same article reports Young's attorney as saying that Young, by contrast, has no drug record. If Young's traffic stop was indeed pre-textual, as he alleges, then one wonders what the actual impetus for the stop was, if not that officers were hoping to catch a known drug user or dealer in the act.

It does appear likely that Young (or perhaps a relative) had previously crossed paths with the Hidalgo County Sherriff's Department. In 2011, one Timothy W. Young of Deming, New Mexico, brought this 2011 §1983 lawsuit pro se against the Department and Hidalgo County for false imprisonment and negligent infliction of emotional distress. This Timothy Young was arrested for criminal trespass for appearing at an apartment complex after police had warned him two weeks earlier that the owner of the complex didn't want him on the property. While under arrest, Young says that he was temporarily deprived of medication for anxiety, high blood pressure, and chronic back pain—hence the NIED claim. (Irony alert: when officers finally responded to Young's complaints about the symptoms he was experiencing in jail, they transported him to Gila Regional Medical Center.)

The criminal charges against Young were dropped a few months later, at which point Young filed suit, attaching to his complaint a letter, purportedly from the apartment complex owner, which stated that he had been unaware of both incidents involving Young on his property and never told any officer that Young was not permitted there. Nevertheless, in September of 2011, thirteen months before the traffic stop at issue now — and after the clerk had inadvertently issued summonses to Hidalgo County and its Sherriff's Department — the court dismissed Young's complaint sua sponte for failure to state a claim. Young failed to name any individual officers as defendants and, in any case, couldn't prove that the arresting officer lacked probable cause to believe Young had engaged in criminal trespass (and hadn't alleged that officers had lied about the basis for belief).

Third Impending Lawsuit: Jane Doe v. U.S. Customs and Border Protection; University Medical Center of El Paso

The third alleged incident involves similar events, but a different set of actors, making it harder to allege that it's part of a pattern or policy (other than broad law enforcement policies that diffuse via the War on Drugs). (Incidentally, Eckert alleges in his complaint that Officers Green and Arredondo claimed during the January 2013 incident that they were acting as part of a "Border Drug Task Force," but they deny this in their Answer.)

I'll call the alleged victim Jane Doe. According to Doe's lawyer, Laura Schaur Ives of the New Mexico chapter of the ACLU, Doe is a woman in her fifties, and a life-long resident of New Mexico, who wants to remain anonymous because she views herself as a victim of sexual assault. According to media interviews that Ives has given, the incident occurred in December of 2012, when Doe was crossing the border from Juarez, Mexico, where she had been visiting a friend, to El Paso, Texas. A U.S. Customs and Border Protection (CBP) dog apparently alerted to Doe (does Leo moonlight for the CBP?), after which federal agents strip searched her at the facility:

• They asked her to undress, to spread her genitalia and to cough, but no drugs were found.
• Female agents then allegedly pressed their fingers into Doe’s vagina looking for drugs but again found nothing.

Doe says that she was then taken to the University Medical Center of El Paso, where medical staff subjected her to a series of searches that rivals Eckert’s. They:

• Observed her making a bowel movement (which some media accounts describe as “forced,” i.e., perhaps the result of an enema), but nothing was found in her stool;
• Took an X-ray, but no foreign objects were found;
• Performed what Doe’s medical records describe as a “bimanual” (i.e., two-handed) simultaneous cavity search of Doe’s vagina and anus,* but no foreign objects were found; and, finally,
• Performed a CT scan, but no foreign objects were found.

Ives says that officers and medical staff conducted these six-odd invasive, degrading searches without a search warrant, and Doe’s medical records indicate that she did not consent. She was, however, billed $6000 by the medical center. Ives says she plans to file a lawsuit against both the CBP and University Medical Center of El Paso, and will file within the next month. The ACLU has apparently had a FOIA request pending with CBP since April to try to identify the exact individuals and units involved. CBP has said that it cannot comment on the specific allegations until it sees a report or complaint.

* As I understand it, bimanual palpation is a diagnostic procedure that normally involves simultaneous probing of a cavity, organ, or other mass from both inside and outside the body in order to locate and focus attention on a mass or other object of interest — not simultaneous probing of two separate cavities (or organs, or masses). I suspect that what may have happened here was that a clinician digitally probed Doe's vagina while, with his or her other hand, simultaneously palpated Doe's vulva or lower abdomen. (What could possibly be the purpose of simultaneously probing Doe's anus and vagina? If my memory of junior high school health class serves, these are not connected orifices, and drugs would have no way of traveling from one orifice that's being probed to the other one to hide.) Still, in terms of dignitary interests, this may be a distinction without a difference.

Update on Eckert v. City of Deming et al. — and What, Exactly, Was the "Medical Purpose" of the Anal Probes, Imaging, and Colonoscopy?

Meanwhile, defendants have answered the complaint in Eckert. If you're interested and looking to save a few pennies from PACER, Scribd user bishamon72 appears to be uploading free versions of the Eckert documents from the docket as they become available. I skimmed the doctors' answers, since that's where my interest in these cases lies. Both deny being employees of defendant Gila Medical Center, and Dr. Wilcox also denies being its agent. But both admit to interacting with Eckert at the request of officers, and confirm the series of searches — except that Dr. Odocha suggests that "only" two enemas, rather than the alleged three, were administered.

Most interesting (to me, in light of debates about role morality and physician participation in activities such as lethal injection and other forms of capital punishment; torture/enhanced interrogation; and removing organs from healthy living individuals, especially minors and other noncompetent individuals, for transplant into others) is that Dr. Wilcox denies that he performed "medical procedures with no medical purpose." (Dr. Odocha neither admits or denies this allegation.)

The parties are scheduled to have a case conference with the judge by telephone on November 14^th. I'm hoping that they don't settle before we see what defendants’ detailed  substantive responses are.

Comments

[KP]

What is the deal with these hospital bills? Assuming a different set of facts -- that a search was warranted and reasonable, but involved a hospital -- wouldn't the hospital know to bill the police rather than the examinee? I cannot imagine they are registered as a patient.

[MacK]

I suspect that these cases are going to start heading for the surreal before it's all over. It was already heading for GUBU status...though it seems to have lost the terminal "U" in the acronym - which if anything is even weirder....