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Judge Tosses 16 Kilos Of Meth Because CBP Couldn't Be Bothered To Obtain Consent For Its X-Ray Search

from the for-the-lack-of-a-warrant,-the-drug-bust-was-lost dept

Wed, Feb 18th 2015 9:01pm — Tim Cushing

I guess if you're going to engage in a stupid, neverending "war," the most honest way to approach it is stupidly.

Sixteen kilos of methamphetamine the Border Patrol found in an SUV was struck from the record by a federal judge because the agents didn't get the driver's consent to X-ray the vehicle.

The CBP had two suspects exactly where it wanted them: detained by agents at a checkpoint. And the longer they were detained, the more nervous they got. Despite a search of the interior turning up nothing and the drug-sniffing dogs failing to alert, the CBP officers were pretty sure they had just captured two smugglers. So, the agents routed the vehicle through their backscatter X-ray scanner, skipping a step in the process.

Agent Buchanan testified that he did not rely on probable cause for the backscatter search, but rather on consent to search given by Defendants. He testified, “we always ask for consent for the backscatter . . . unless we’ve already found something in the vehicle.” He testified that he typically has another agent get consent to search the vehicle with the backscatter. Agent Buchanan was unable to identify the agent he asked to get consent from the Defendants and was unable to confirm that such consent was requested.

So, Buchanan was unable to come up with any evidence or probable cause, but decided to perform the backscatter anyway, despite his doing so being completely contradicted by his portrayal of the CBP's standard m.o. This wasn't the only contradictory statement in the CBP's testimony.

Agent Valdez, who remained in the secondary waiting area with the Defendants, testified that he was present when Defendants gave consent to the backscatter search. However, he was unable to identify the agent who requested consent, how the request was phrased, and how the Defendants replied.

Valdez, despite being "present," couldn't actually say whether the defendants had given consent (or who to), but went ahead and told the court that the two men had consented.

The backscatter device -- an additional search that required consent or a warrant -- uncovered 14 wrapped packages of meth, 16 kilograms in all. From that Fourth Amendment-skirting search, the CBP compiled its criminal complaint. Now, all of that narrative is nearly useless, thanks to these officers' actions.

The court, on its way to dismissing as evidence the 16 kilos of meth obtained that day, points out the government's contradictory statements, as well as its inability to find anyone to corroborate the multiple claims that permission for the search had been granted.

Defendants argue that Border Patrol agents did not request their consent to search the vehicle with a backscatter. Agent Buchanan testified that he asked another Border Patrol agent to obtain that consent, but he was unable to identify the agent and was unable to confirm that the agent requested consent. Although Agent Valdez testified that he was present when Defendants gave consent for the backscatter search, he was unable to recall which agent requested consent and what was said by the agent and the Defendants. More importantly, the Government failed to identify and to offer the testimony of the agent who purportedly sought and obtained the consent.

And away goes 16 kilos of evidence, along with the bust itself, most likely. Kind of hard to prove the defendants were smuggling drugs when you can't introduce the smuggled drugs in court. Everyone at this particular CBP checkpoint apparently felt someone else would handle the consent issue. And even if the agents had been rebuffed, it's not as though the detainees were free to go. A warrant could have been acquired, most likely with minimal effort.

This isn't a huge bust nor would it have put a significant dent in a drug lord's operation. The CBP only had a couple of guys who had muled themselves out for a few hundred dollars. That, in and of itself, is just one of the problems with this nation's drug war. Thousands of tiny arrests like these happen every day and the "problem" isn't anywhere closer to being "solved."

The other thing this incident is symptomatic of is our nation's law enforcement agencies' extremely casual relationship with the Fourth Amendment. Time after time, we see the government (national and local) doing everything it can to avoid obtaining warrants -- whether it's their tendency to ask dogs for "permission" to perform warrantless searches or officers themselves using everything from imperceptible whiffs of drug odors to declaring every sign of nervousness as tantamount to a full confession. "Probable cause" is a low bar, but law enforcement agencies seem willing to sidestep it with alarming regularity. The CBP had a car full of drugs and two suspects nailed, but it showed that its "respect" for the Fourth Amendment was just a formality. Now, it has nothing more than two men suspected of smuggling the same drugs that can't be used against them in a court of law.

Usa Complaint Hernandez (PDF)Usa Complaint Hernandez (Text)

Suppression Order Hernandez (PDF)Suppression Order Hernandez (Text)

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Filed Under: 4th amendment, cbp, consent, customs, customs and border patrol, meth, search

38 Comments

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Michael J. Evans, 18 Feb 2015 @ 9:37pm

A loss of respect
It's actions like this which re-enforce the loss of respect that the public has for supposedly honorable upholders of the laws of the land.

However it is the divisive, destructive, and doomed attempt at forgetting the lessons of prohibition that create a rift of trust and establish an us vs them mentality in the first place. The solution is to attack the issue from an entirely different vantage point; to deprive criminals of things which the public is willing to buy from them. To give the public a safe, regulated, taxed, legal way of exercising personal freedoms in ways that do not harm others.

End the silly war on terror and a waste of taxpayer dollars which could instead be re-invested in enriching the infrastructure and economy. Stop the outward flow of money to foreign crime rings and instead capture it locally. In all aspects, taking a more reasoned, historically informed, adaptive to matters of fact approach is the true solution to the loss of respect in all directions.
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- Ninja (profile), 19 Feb 2015 @ 1:32am
  
  Re: A loss of respect
  Have a seat while you wait. Just legalizing marijuana was a steep uphill battle so one can just imagine the rest. And even if it is legal, there are so many restrictions on who, where, how and how much one can produce marijuana that the entire purpose of making the thing legal and tackle the drug cartels goes down the drain.
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  - Anonymous Coward, 19 Feb 2015 @ 8:02am
    
    Re: Re: A loss of respect
    ...Just legalizing marijuana was a steep uphill battle...
    
    That's been at the state level. It's still illegal at the federal level!
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- OldMugwump (profile), 19 Feb 2015 @ 6:39am
  
  Re: A loss of respect
  I'm surprised (and somewhat impressed) that the CBP didn't find an agent willing to simply lie to the court and claim they obtained consent for the X ray.
  
  It's not like courts demand any evidence of consent, like a video recording or a signature on a form.
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Anonymous Coward, 18 Feb 2015 @ 10:17pm

The Skinny, Happy, Horny Drug?
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- Anonymous Coward, 19 Feb 2015 @ 10:40am
  
  Re:
  Right now I can imagine you twirling the stuff around your finger saying "Precious" and looking like Meth Gollum.
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Anonymous Coward, 19 Feb 2015 @ 12:35am

What happened to the 16 kilos of drugs? The alleged dealers can't really ask for it back even though it's their property. Destroyed or locked up somewhere? Seems to be that if you want to get hold of drugs this might be a way to do it. Make it end up in a limbo state, wait a while a then make it disappear.
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- Anonymous Coward, 19 Feb 2015 @ 2:44am
  
  Re:
  "Make it end up in a limbo state, wait a while a then make it disappear."
  
  I think there is a joke about that...
  16 kilos were found in the truck. The whole 10 kilos are on the way to the police station. All of the 5 kilos were registered in the evidence room and later the court was presented the evidence of 1 kilo.
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- Manabi (profile), 19 Feb 2015 @ 2:52am
  
  Re:
  It'll be destroyed as contraband. They aren't allowed to give it back even in cases like this because it's illegal stuff.
  
  Or at least that's what is supposed to happen. Given the incompetence on display here who knows what will actually happen.
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  - Anonymous Coward, 19 Feb 2015 @ 9:15am
    
    Re: Re:
    Last night, I destroyed a pint of Jack and three beers as contraband.
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Anonymous Coward, 19 Feb 2015 @ 1:34am

It is clear from the testimony of both agents that they had been affected by the meth fumes. That's why they don't remember a thing and it's also your probable cause, right there.
Even the dog was so high it couldn't sniff a thing on the car!
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That One Guy (profile), 19 Feb 2015 @ 1:35am

One small step in the right direction
Evidence obtained without following the proper rules and laws needs to be tossed, even in cases like this, where the accused almost certainly would have been found guilty, and instead are found innocent due to no evidence against them.

If it's not, then those rules and laws become absolutely meaningless, since the police and/or government can ignore them whenever it's convenient, safe in the knowledge that it won't affect their case should they do so.

Now, if more courts, preferably all of them, were to do so, maybe, just maybe, the government and police would actually start to follow the laws and rules regarding searches and seizures of evidence, instead of just ignoring them whenever they 'get in the way'.
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- Anonymous Coward, 19 Feb 2015 @ 6:54am
  
  Re: One small step in the right direction
  A better approach that might put an end to such might to put the agents in jail for the illegal search.
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Ninja (profile), 19 Feb 2015 @ 1:42am

Well, at least CBP will have some meth-driven fun for quite a while with 16 kilos even if the suspects managed to get away. /derp
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Anonymous Coward, 19 Feb 2015 @ 1:44am

"probable cause"
If the only thing the driver did was that he looked at the cop in a wrong way and from that he knew that something is wrong then he is pretty good at his job.

Sure its bad to search an entire house for no reason but in this case there is no reason to complain. If they find nothing, sue them or even dump the cops to deterr them from doing it wrong. With a catch like this the cop would deserve a little raise.
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- Anonymous Coward, 19 Feb 2015 @ 9:22am
  
  Re:
  Not enough information to judge. How many times has he resorted to an X-ray search that revealed nothing?
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Bamboo Harvester (profile), 19 Feb 2015 @ 1:58am

Interesting, but...
...where's the Tech?
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- That One Guy (profile), 19 Feb 2015 @ 2:07am
  
  Re: Interesting, but...
  Other than the search via backscatter machine?
  
  Also, why do people keep asking this? Techdirt is primarily a tech focused blog, but the different writers for TD will also include articles that they find interesting from time to time.
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  - Ninja (profile), 19 Feb 2015 @ 3:30am
    
    Re: Re: Interesting, but...
    That's what I think every time I see some clueless person ask "where's the tech?".
    
    I'll start asking what/where is this Divine Law, set in stone tablets by Divine Lightning that say people running a site must always write what the ones reading expect.
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  - Bamboo Harvester (profile), 19 Feb 2015 @ 5:11am
    
    Re: Re: Interesting, but...
    ...where's the Tech?
    
    "Other than the search via backscatter machine?"
    
    So we should expect more articles about DWI's because they use an electronic breathalyzer to test for BAC?
    
    "Also, why do people keep asking this? Techdirt is primarily a tech focused blog, but the different writers for TD will also include articles that they find interesting from time to time."
    
    Because if we want Tech news, we read TechDirt. If we want to hear about some idiot murderer taking a selfie of himself with his victim, standard news outlets cover it just fine.
    
    I don't expect to see an in-depth story about how Cisco routers can be compromised on MSNBC or FOX news. Conversely, I also don't expect to see a story about domestic abuse on TechDirt unless there's a Tech connection (other than that the house it occurred in is wired for electrical service).
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    - Anonymous Coward, 19 Feb 2015 @ 5:55am
      
      Re: Re: Re: Interesting, but...
      "Because if we want Tech news, we read TechDirt."
      
      Well, there's your issue right there.
      
      The site is called techdirt.com because ConstitutionRapeIntellectualPropertyBullShitAndTechDirt.com is a bit too long for a domain name.
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    - Baron von Robber, 19 Feb 2015 @ 7:05am
      
      Re: Re: Re: Interesting, but...
      Gee, maybe you should remove this site from your bookmarks and possibly go visit one of the other 1,000,000,000+ sites that might fit your expectations.
      [ link to this | view in chronology ]
    - Ninja (profile), 19 Feb 2015 @ 7:06am
      
      Re: Re: Re: Interesting, but...
      Skip the ones you feel that miss the tech then. Feeling entitled aren't we?
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    - Gwiz (profile), 19 Feb 2015 @ 7:40am
      
      Re: Re: Re: Interesting, but...
      Because if we want Tech news, we read TechDirt. If we want to hear about some idiot murderer taking a selfie of himself with his victim, standard news outlets cover it just fine.
      
      I know what you mean. I keep going to The Onion looking for stories about Vidalias, Bermudas, Scallions and other yummy onions and all I see are humorous articles about other stuff.
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    - Anonymous Coward, 19 Feb 2015 @ 9:28am
      
      Re: Re: Re: Interesting, but...
      One way to look at it is that law enforcement agencies are a complex distributed system with a mix of closed/open source subsystems rife with of bugs and potential exploits.
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Capt ICE Enforcer, 19 Feb 2015 @ 2:04am

Charge the Meth
At least the government can take the meth to court,
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- Anonymous Coward, 19 Feb 2015 @ 2:46am
  
  Re: Charge the Meth
  Can the meth counter sue for assault because it got tossed?
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Anonymous Coward, 19 Feb 2015 @ 3:20am

Someone called Saul...
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cypherspace (profile), 19 Feb 2015 @ 3:57am

Good. The more pushback against the claim of a 100-mile "Constitution-free zone" at the border, the better. And speaking of borders, James Risen documents a great incident of civil disobedience re: border crossings that occurred a few years back at the VT-Canada border.
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Anonymous Coward, 19 Feb 2015 @ 4:37am

express with consent
What if the set up a lane at the border where if you use it you have implicitly granted consent for the use of techniques like backscatter xrays. I wonder if they created an 'express with consent' lane at the border if people would use it.
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- Anonymous Coward, 19 Feb 2015 @ 7:07am
  
  Re: express with consent
  Too much choice. Make 10 lanes, 9 are express lanes and 1 is the no-consent lane. Which is open on monday... between 9 and 9:30... once a month.
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  - Anonymous Coward, 19 Feb 2015 @ 9:32am
    
    Re: Re: express with consent
    Sir, I applaud your restraint in not mentioning a leopard.
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Anonymous Coward, 19 Feb 2015 @ 6:38am

Ha!
The targeted advertising on my page is hawking Border Patrol jobs.
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scotts13 (profile), 19 Feb 2015 @ 7:03am

I'd like to see the case proceed
I assume the evidence collected couldn't be produced, mentioned, or discussed?

"Well, we stopped these guys because they looked suspicious, Then we searched their vehicle and didn't find anything. Then, for 'reasons' we let them sit there a couple of hours, and they got really nervous. Then we took them into custody."

Hilarious.
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Padpaw (profile), 19 Feb 2015 @ 7:09am

If they had just followed the laws they had sworn under oath to protect they could have gotten a few more drug runners off the streets
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- Anonymous Coward, 19 Feb 2015 @ 7:19am
  
  Re:
  I suspect there are at least two less.
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connermac725 (profile), 19 Feb 2015 @ 8:52am

Half assed
another story of a complete lack of any procedure being followed and yet they will not be disciplined in any way for their screw up
being a cop these days is the perfect job no matter how bad you are you still have a job
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GEMont (profile), 19 Feb 2015 @ 4:13pm

Sharing Intel
Probable scenario.

NSA surveillance picked up the conversation orders between the distributors and the mules through the installed direct link software on their phones, and sent the mules' transport info to the police who - assuming that the bust was high profile and would be covered by a friendly judiciary - went about the bust knowing the drugs were present and that they would need the backscatter search to prove it.

Since they knew the drugs were present and well-concealed, and as they were planning from the start to use the device because the NSA info instructed them to do so, they figured they could just skip the consent part and that the judge would have been informed of the NSA connection and thus be in on the bust, as usual, and overlook any small piddly unimportant details, such as the Fourth Amendment "consent to search" bullshit.

After all, these were known bad guys right.

---
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