Cop: Screwdrivers And Wrenches Are Drug Dealer Things; Appeals Court: WTF

from the you-can't-fix-stupid-but-you-can-at-least-deny-it-immunity dept

Some things most of us keep in our vehicles is considered by at least one police officer to be tools of the drug trade. Literal tools. Of the literal drug trade. I guess. The bad news is even more of us keep these items at home. We're drowning in contraband, it appears. Those of us with attached garages should just brace ourselves for early morning no-knock raids.

This decision [PDF] by the Sixth Circuit Appeals Court starts as so many qualified immunity cases do: with a pretextual stop.

On May 22, 2014, Harris, along with her mother, father and older sister, went out for dinner at TGI Friday’s. On the way home, their minivan was stopped by City of Erlanger police officers because of an obstructed license plate. The officers then conducted an investigation of Harris’s mother, who was the driver. Her mother was arrested for obstructing a license plate, driving with no registration plates, driving with a suspended license, and possession of a forged instrument.

The footnote attached to "forged instrument" notes there's nothing on the record showing Brittany Harris' mother was ever actually charged by prosecutors with these alleged crimes. All that's on record is the booking. Brittany, who was seventeen at the time, is the one bringing the suit. That's because as things developed during this stop, she was subjected to an invasive search.

Brittany asked to go to the restroom after she and her family had spent more than an hour being detained by six squad cars full of officers. She was accompanied by Officer Kimberly Klare, who did this before allowing Brittany to enter the restroom.

The parties agree that at this point, Klare secured Harris’s hands behind her back. What happened next is disputed, but, as noted, for purposes of this summary judgment appeal, we must accept Harris’s version of events. She claims that, as part of a pat down, Klare placed her hands under Harris’s brassiere and pinched the girl’s breasts, causing bruising. According to Harris, Klare told her that she searched her the way she did because a previous suspect at that location had “stuffed needles in her bra” and because “[y]ou have that look,” “[y]ou have the look of a junkie whore.” But Klare found no drugs, drug paraphernalia, weapon, or other contraband on Harris.

That's some fine community policing by Klare, who called someone a "junkie whore" but found nothing to corroborate her expert assessment of Harris' character. Now, you may be asking, why was a drug dog brought onto the scene when the only charges had to do with license plates and driver's licenses? Well, that's where it gets absolutely insane.

During the investigation, officers also noticed that Harris’s father had “equipment for his work” in the vehicle, including “tools, like screwdrivers and wrenches,” some of which were “sitting out” and some of which were “in containers.” Based on the presence of these tools in conjunction with the violations listed above, the officers began to suspect that Harris’s mother was engaged in drug activity.

No treats for the dog, though.

They sent for a drug dog, but it found no drugs.

I'm sorry. That's only the mostly-completely insane part of this. Here's the batshit insanity: the lower court granted Officer Klare qualified immunity.

The district court agreed with Klare. It held that the officers had probable cause to stop the minivan because of the obscured license plate and that the presence of Harris’s father’s tools and equipment in the car, in conjunction with her mother’s alleged misfeasance, created a reasonable suspicion of drug activity…

The appeals court says the lower court is oh so very wrong on both counts. It also has zero respect for any officer making these claims. As for the driving offenses "supporting" the drug dealer theory, the appeals court has this to say:

We have serious doubts as to whether the officers reasonably suspected the Harris family of manufacturing or transporting contraband. Klare provides no reason to suppose that Harris’s mother’s alleged traffic violations made it more likely that drug activity was afoot—if anything, one would expect a drug-trafficking family to avoid fastidiously such violations for fear of discovery.

If you don't want extra police attention, you keep your driving stuff in order. That's why police so often claim clean vehicles and drivers with no records are also tools of the drug trade -- because drug dealers don't want to give officers any reason to perform a pretextual stop. This claim goes the other direction, ensuring drivers are damned either way, and turning a nation of non-criminal drivers into erstwhile drug dealers.

As to the presence of tools everyone owns somehow being indicative of drug dealing, the appeals court finds this argument equally ridiculous.

Nor does Klare explain how the possession of worker’s tools, which is not itself “inherently illegal or even suspicious,” could have provided the officers with a reason to suspect drug activity. See United States v. Warfield, 727 F. App’x 182, 188–89 (6th Cir. 2018) (holding that the possession of eight cartons of cigarettes was not suggestive of the possession of untaxed cigarettes). The record contains no reason to believe that screwdrivers and wrenches—or any of the other tools in the vehicle—are particularly indicative of drug manufacture or transportation.

The rest of the opinion deals with the nature of the search performed on Harris. The court finds there's a factual dispute over the timing of the search, which Harris argues came after the drug dog arrived and found no drugs. If Officer Klare was aware of this, she no longer had probable cause to perform a search of Harris before she entered the restroom.

There was also no consent given for the search, further distancing it from Constitutionality. The appeals court notes a number of coercive elements that might have pressured Harris into subjecting herself to a search. The record shows nothing indicating she ever consented, but the presence of six police officers and a drug dog -- along with a need to use the restroom as the traffic stop extended into its second hour -- were coercive enough to eliminate the officer's claim about Harris' supposed consent. (All Harris did -- after being cuffed -- was come towards Officer Klare when she was asked to, at which point the search occurred.)

Officer Klare's qualified immunity -- handed to her by an amazingly helpful lower court -- is stripped. This doesn't mean she'll end up losing the lawsuit, but it does mean she'll have to face a jury trial over her alleged Constitutional violations.

The case in its entirety is a brutal reminder that officers -- if so inclined -- can declare anything kept in a vehicle to be indicative of criminal activity. This just adds tools to a long list that already includes air fresheners, trash, a lack of trash, cigarettes in the ashtray, too much luggage, too little luggage, a departure point or destination where people could conceivably be purchasing/selling drugs, etc. If a cop wants to search a vehicle, they'll find a reason to. And that leaves citizens with the option of living life with violated rights or hiring a lawyer to spend the next several years seeking redress.

Filed Under: 6th circuit, drugs, police, probable cause, searches

Chinese Law Enforcement Alchemists Turn Shit To Drug Bust Gold

from the put-on-your-waders,-boys dept

Oh, the glorious career path that is the drug enforcement wing of Chinese law enforcement! (h/t Boing Boing)

Dozens of cities across China are applying an unusual forensic technique to monitor illegal drug use: chemically analysing sewage for traces of drugs, or their telltale metabolites, excreted in urine.

One southern city, Zhongshan, a drug hotspot, is also monitoring waste water to evaluate the effectiveness of its drug-reduction programmes, says Li Xiqing, an environmental chemist at Peking University in Beijing who is working with police in these cities.

Li says Zhongshan police have already used the technique to help track down and arrest a drug manufacturer. He says a handful of cities are planning to use data from waste water to set targets for police arrests of drug users, some as early as next year.

That's exactly the sort of statement one would expect to be made in the wake of "do what now" responses from not just journalists and citizens, but also many of those on law enforcement drug task forces.

That drugs can be found in bodily excretions is no surprise. There's an entire corporate/medical industry reliant on that very fact. That you can track down drug manufacturers by grabbing anonymous… um… data by tapping the sewage backbone is a bit of stretch. It may have helped police get a general sense of where some sort of unadulterated drugs might be flowing from, but my guess is regular, non-shit-sifting policework was involved. Chinese law enforcement have plenty of more effective methods to deploy, especially considering they're not "hindered" by concerns about civil liberties or reputational damage.

As the article points out, this isn't the first time sewage has been examined for drug content. But prior to this point, it was done as a really odorous form of drug census. People may not be willing to talk openly about their drug habit(s), but a whole bunch of anonymous donations can be collected without worrying about consent waivers or a rush of entrepreneurial spirits diving into the brown gold for better ad positioning.

What does appear to be more useful is mining the effluvia for "data" showing the efficacy of new drug policies. If law enforcement is targeting certain illegal chemicals, measuring the output is a quick (AND DIRTY!) way to see if drug use is dropping.

Chinese law enforcement suggests its program should be adopted by other countries with drug problems. I'm not sure it will find many takers. While collecting human waste presents approximately zero civil liberties issues, the spokesperson has greatly overestimated law enforcement's willingness to get its hands dirty… I mean, at least not in this sense. We can hardly get cops to play by the rules we've had in place for more than 200 years. I don't think they're quite ready to move from the unpleasant task of trash pulls to something even more unappealing.

Filed Under: china, drugs, surveillance, wastewater

South Carolina Drug Warriors Routinely Serving Regular Warrants Like No-Knock Warrants

from the not-constitutional-and-a-whole-lot-more-dangerous-for-everyone-involved dept

Radley Balko is uncovering more rights violations and more law enforcement falsehoods with his coverage of South Carolina resident Julian Betton's lawsuit against the Myrtle Beach-area drug task force. Betton's house was raided by the drug unit after a confidential informant made two pot purchases for a total of $100. The police didn't have a no-knock warrant, but they acted like they did, going from zero to hail-of-gunfire in mere seconds. (via FourthAmendment.com)

On April 16, 2015, the task force battered Betton’s door open with a ram, then almost immediately opened fire, releasing at least 29 bullets, nine of which hit Betton. One bullet pierced a back wall in the building, sped across a nearby basketball court and landed in the wall of another house. (This was a multi-family building.)

Betton was hit several times. He didn't die, but he doesn't have much left in working order. He lost part of his gallbladder, colon, and rectum. His liver, pancreas and small intestine all suffered damage. His left leg was broken along with one of his vertebrae.

The cops immediately set about justifying their extreme tactics. First, they claimed Betton fired at them, but ballistics tests showed Betton's gun hadn't been fired. Then they claimed he pointed a gun at them, but did not fire it. This could have easily been proven if any of the task force had bothered to activate their body cameras before breaking Betton's door down. But the footage shows no cameras were activated until after the task force stopped firing.

The task force used a regular search warrant, meaning the officers were supposed to knock and announce their presence. Nearly all of them said they followed these stipulations. Video from Betton's home security camera (which can be seen at the Washington Post) caught all these officers in a lie.

These 11 seconds of footage from that camera show that no member of the task force knocked on Betton’s door.

The video lacks audio, but both the Myrtle Beach police chief and a federal magistrate have since concluded that the video also strongly suggests there was no announcement. None of the officers’ lips appear to be moving, and it all happens very quickly. At best, they announced themselves simultaneously or nearly simultaneously, with the battering ram hitting the door.

A neighbor who was on Betton's sidewalk (and was told to lie on the ground by the task force on their way to Betton's door) backs up the camera footage. No announcement was made before the door was breached.

This is apparently standard operating procedure in Myrtle Beach. Only in rare cases does the task force seek no-knock warrants. (Task force officials say no-knocks are only "1-2%" of warrants obtained.) But they apparently serve plenty of normal warrants without knocking or announcing their presence.

It seems clear from the testimony in depositions that the 15th Circuit Drug Enforcement Unit doesn’t know any of this. Officer Christopher Dennis, for example, said that the “reasonable” waiting period for someone to answer the door begins the moment police arrive on the scene, not after they knock and announce themselves. This is false. Officer Chad Guess — who, remember, planned the Betton raid — said in a deposition that it’s “not the law to knock and announce. You know, it’s just not. It’s the officer’s discretion, each dictate determines itself.” This, again, is wrong. Officer Belue said under oath that he had no idea how long officers are supposed to wait before forcing entry, and that no one had trained him on the matter.

It's a convenient misunderstanding of the law. It's made even more convenient by the task force's lack of clearly-written policies on serving warrants. Since everyone of the task force remains as ignorant as possible, they're more likely to be granted immunity when victims of unconstitutional drug raids take them to court.

But these officers may not get off so lightly. Their reports and testimony have been disproven by the 11 seconds of video captured by Betton's security camera. Officers who swore they knocked and announced their presence now have to explain how those both occurred with zero officers knocking on Betton's door or even moving their lips.

More lies can be found elsewhere in the report. Officers stated in police reports they heard the sound of Betton's gun firing. Ballistics testing has shown Betton never fired his handgun, so everyone making that same claim about gunfire is either mistaken about what they heard or, more likely, aligning themselves with the narrative they created in the aftermath of the shooting.

Maybe these officers are hoping their professional ignorance will outweigh their bogus reports. The task force has made it incredibly easy for members to write their own rules when executing warrants. As Balko points, the single most invasive and dangerous thing the task force participates in (~150 times a year) -- warrant service -- has zero official policies dictating how task force members serve warrants. Apparently, all that time and effort went into creating a cool skull-and-crossbones logo for members to stitch on their not-very-coplike raid gear.

In any event, the court system is the last stop for justice. If any of these officers are ever going to be held accountable for their actions in the Betton raid, it will be here. Every level of oversight task force members answer to has already offered their official blessings for the knock-and-announce warrant that was carried out without knocks or announcements.

What happened to Julian Betton is an entirely predictable product of the failures, culture and mindset of the 15th Circuit Drug Enforcement Unit. And yet to date, state officials won’t even concede that this was a bad outcome, much less do anything to prevent it from happening again. Citing the SLED investigation, South Carolina solicitor Kevin Bracket cleared the officers of any wrongdoing within just a few months. In the three years since the raid, no officer involved has been disciplined, even internally. Nor has any officer has been asked to undergo additional training. No policies have been changed. The DEU never bothered with its own investigation, or even an after-action examination to determine what went wrong.

The police clear themselves of wrongdoing and a pending civil lawsuit has zero motivation effect on the drug unit. The task force is operating outside Constitutional boundaries with no internal guidance or effective oversight. Myrtle Beach-area drug warriors have no desire to clean up their act, and a large settlement paid by taxpayers is unlikely to result in a change of heart.

Filed Under: 4th amendment, drug task force, drugs, julian betton, no knock warrants, south carolina, warrants

Court Has No Problem With Multiple Invasive Probings In Search Of Drugs That Didn't Exist

from the 'Your-Bodies,-Ourselves,'-by-CBP-and-El-Paso-County-healthcare-professio dept

If a government employee suspects you might be carrying drugs, be prepared to engage in a nonconsensual, highly-intimate relationship with the feds and their helpers. A New Mexico resident suspected of carrying drugs was subjected to multiple anal probings and enemas before law enforcement finally decided he wasn't actually carrying any drugs on him (or in him). An 18-year-old Arizona woman was subjected to vaginal and anal probing when attempting to return from a short trip to Nogales, Mexico. Again, no drugs were found but the helpful medical "professional" decided to go from CBP accusation to painful probing, bypassing less intrusive options (x-rays, etc.) in his earnest desire to save America from illicit substances.

Another incident with lots of probing and violations but zero drugs has landed in the Fifth Circuit Appeals Court. Gloria Bustillos (an American citizen) was attempting to return to El Paso, Texas after a visit to Juarez, Mexico when CBP agents decided she must be trafficking drugs. The indignities began immediately. From the decision [PDF]:

First, two female agents conducted a pat down. The agents found no drugs. The agents then held Bustillos for a K-9 search. The K-9 failed to alert to the presence of drugs. Two agents then took Bustillos to a restroom, where they ordered her to pull down her pants and underwear and bend over slightly. The agents conducted a visual inspection of Bustillos’ vaginal and anal area. Again, the agents found no drugs.

Free to go? Not a chance.

Despite no evidence of drugs, the agents placed tape on Bustillos’ legs and abdomen, handcuffed her, and transported her to the University Medical Center (the “Hospital”) in El Paso.

At the Hospital, Doctors Michael Parsa and Daniel Solomin (the “Doctors”) ordered a series of x-rays to search for drugs. The x-rays revealed no drugs. The Doctors then performed a pelvic exam. Again, the pelvic exam evidenced no drugs. Solomin then conducted a rectal exam. Yet again, Solomin found no evidence of drugs. As part of these searches, the Doctors, and Nurses Lynette Telles and Frank Mendez (the “Nurses”), allegedly “brutally” probed Bustillos’ cavities in the presence of hospital personnel. Bustillos did not consent to any of the above searches.

Having been violated multiple times in an attempt to confirm the CBP's verifiably-wrong suspicions, Bustillos sued. And the court has nothing for her. The district court upheld immunity for the medical personnel who performed the series of invasive searches and the Fifth Circuit Appeals Court affirms this decision.

Bustillos argues that the Doctors and Nurses violated her Fourth Amendment right to be free from unreasonable searches and seizures by detaining her in order to conduct x-ray, pelvic, and rectal exams without reasonable suspicion of criminal activity. The district court held those allegations cannot overcome the Doctors’ and Nurses’ qualified immunity because the right at issue was not clearly-established. We agree and affirm on that ground.

This part sounds hopeful…

Nonetheless, we take this opportunity to clarify the constitutional duties of medical staff when they cooperate with law enforcement searches.

But it isn't. The appeals court holds that medical personnel are in no position to question the orders of government agents. CBP officers can make almost any statement and suggest courses of action and medical personnel should just shut up and do what they're told, even if less-invasive procedures suggest more-invasive procedures aren't any more likely to produce supposedly-hidden drugs. (Emphasis added.)

Accordingly, Bustillos’ allegations could potentially assert a constitutional violation. The complaint is, however, ambiguous on critical factual allegations. For instance, it is unclear who Bustillos alleges actually ordered the various searches. Further, it is unclear what the CBP officers told medical staff regarding their basis for requesting the various searches. These facts are important because the officers’ articulation of probable cause for a minimally invasive search, such as the x-ray, would not necessarily shield the Doctors and Nurses from liability for the more intrusive searches, such as the rectal probe, if the officers did not request that search or represent that sufficient suspicion justified it. However, if the officers requested all of the medical examinations, the Doctors and Nurses would have a strong argument that they had no duty to second-guess the Fourth Amendment basis for those searches.

But the appeals court stops there. It could have examined the sufficiency of the allegations. The court says the underlying facts (apparently not on the record) "are important" as they would what was done under the command of CBP officers and how many invasive searches were performed without direct instruction. Certainly medical personnel aren't well-positioned to questions law enforcement assertions -- and it may be ultimately correct that they should not be held liable for invasive tests ordered by the government. But the appeals court just discards the discussion without sending it back to the lower court to further assess the underlying facts. The appeals court simply says the right to be free of invasive medical searches performed possibly at the government's behest was "not clearly established." The "clarification" the court promised earlier in the decision materializes as a muddy paragraph that clarifies nothing because the court is unwilling to clarify it further than "maybe medical personnel shouldn't question law enforcement."

This failure of justice is made even more apparent when the court moves on to discuss Bustillos' challenge of the lower court's denial of discovery.

Bustillos claims that the district court abused its discretion by failing to grant her requests to conduct discovery prior to ruling on the motions to dismiss. We disagree.

Both motions for protective orders noted that the Doctors had asserted qualified immunity. “One of the most salient benefits of qualified immunity is protection from pretrial discovery . . . .” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). Thus, “[b]efore allowing discovery in a matter where qualified immunity is alleged, the district court must first find ‘that the plaintiff’s pleadings assert facts which, if true, would overcome’ a qualified immunity defense.” Williams-Boldware v. Denton Cty., 741 F.3d 635, 643 (5th Cir. 2014) (quoting Backe, 691 F.3d at 648).

Because Bustillos’ claims could not overcome the clearly-established prong of the qualified immunity defense, the district court did not err by declining to grant Bustillos’ discovery requests.

So, the court says plaintiffs in her situation are fucked. They can't sufficiently allege violated rights without more factual development, but the qualified immunity defense prevents discovery from even occurring. Plaintiffs apparently have to enter the court with all the facts on hand at the time of filing. Most government agencies are unwilling to hand over pertinent documents to victims of their malfeasance at any point, forcing plaintiffs to engage in an FOIA lawsuit (and secure a victory) before even attempting to file a civil rights lawsuit. The clock starts ticking on civil rights lawsuits the moment a violation occurs, making it all but impossible to win a public records suit (and secure helpful facts) prior to bringing allegations of rights violations to the court. Qualified immunity is an insanely high bar to meet, and it's only made worse when courts at the appellate level refuse to clarify constitutional duties of medical professionals beyond "if law enforcement is involved in any way, medical professionals can do whatever they want without worrying about being held liable for their actions."

Filed Under: 4th amendment, 5th circuit, cbp, drug searches, drugs, gloria butillos, police

Device Detects Drug Use Through Fingerprints, Raising A Host Of Constitutional Questions

from the defendant-has-indicated-gov't-will-receive-'two-fingers-while-he's-s dept

If this tech becomes a routine part of law enforcement loadouts, judicial Fourth and Fifth Amendment findings are going to be upended. Or, at least, they should be. I guess citizens will just have to see how this all shakes out.

A raft of sensitive new fingerprint-analysis techniques is proving to be a potentially powerful, and in some cases worrying, new avenue for extracting intimate personal information—including what drugs a person has used.

[...]

The new methods use biometrics to analyze biochemical traces in sweat found along the ridges of a fingerprint. And those trace chemicals can quickly reveal whether you have ingested cocaine, opiates, marijuana, or other drugs. One novel, noninvasive forensic technique developed by researchers at the University of Surrey in the United Kingdom can detect cocaine and opiate use from a fingerprint in as little as 30 seconds. The team collected 160 fingerprint samples from 16 individuals at a drug-treatment center who had used cocaine within the past 24 hours—confirmed by saliva testing—along with 80 samples from non-users. The assay—which was so sensitive that it could still detect trace amounts of cocaine after subjects washed their hands with soap—correctly identified 99 percent of the users, and gave false positive results for just 2.5 percent of the nonusers, according to a paper published in Clinical Chemistry.

Let's discuss the phrase "non-invasive." It was relatively non-invasive when fingerprints were simply used to identify people. (That science isn't exactly settled, but we'll set that aside for now.) When smartphones and other devices used fingerprint scanners for ID, the "non-invasive" application of fingerprints was no longer non-invasive. An identifying mark, possessing no Fifth Amendment protection, gave law enforcement and prosecutors the option of using something deemed "non-testimonial" to obtain plenty of evidence to be used against the fingerprinted.

This opens up a whole new Constitutional Pandora's Box by giving officers the potential to apply fingerprints during traffic stops to see if they can't generate enough probable cause to perform a warrantless search of the car and everyone in it. It's generally criminal to possess drugs. Evidence of ingested drugs means suspects possessed them at some point in time, but evidence of drug use is generally only useful in driving under the influence cases. That's in terms of prosecutions, though. For roadside searches -- where officers so very frequently "smell marijuana" -- evidence of drug use is a free pass for warrantless searches.

That's just the Fourth Amendment side. The Fifth Amendment side is its own animal. Evidence obtained through fingerprints would seemingly make the production of fingerprints subject to Fifth Amendment protections. It should at least rise to the level of blood draws and breath tests, even though this is far more intrusive (in terms of evidence obtained) than tech normally deployed at DUI checkpoints. Blood draws often require warrants. Breath tests, depending on surrounding circumstances, aren't nearly as settled, with courts often finding obtaining carbon dioxide from breathing humans to be minimally testimonial.

As Scott Greenfield points out, the first tests of constitutionality will occur at street level. Cops will deploy the tech, hoping to good faith their way past constitutional challenges.

Precedent holds that the police are authorized to seize people’s fingerprints upon arrest, as the Fifth Amendment does not apply to physical characteristics. But the rubric is “fingerprints can be seized” based on their limited utility as physical characteristics used for identification purposes.

If they should be used for entirely different purposes, for the ascertainment of whether a person ingested drugs, then the rationale allowing the seizure of prints under the Fifth Amendment no longer applies. It certainly won’t be in the cops’ best interests to draw this distinction, to limit their use of prints to the purpose for which they’re allowed and to demonstrate constitutional restraint by not exceeding that purpose.

This means everything will get much worse for drivers and other recipients of law enforcement attention in the short-term. When the challenges to searches and seizures filter their way up through the court system, things might improve. But it won't happen rapidly and any judges leaning towards redefining the scope of fingerprint use will face strong government challenges.

It will probably be argued evidence of drug use obtained through these devices is no different than a cop catching a whiff of marijuana. On one hand, no cop could credibly claim to be able to detect drug use simply by touching someone's fingers. On the other hand, the reasonable reliability of the tech makes challenges more difficult than arguing against an officer's claim they smelled drugs during the traffic stop. The key may be predicating a challenge on the fact that the device actually tests sweat, not fingerprints, making it an issue of bodily fluids again and (slightly) raising the bar for law enforcement.

This news isn't disturbing for what it is. The obvious initial application is in workplaces, where random drug tests are standard policies for many companies. That tech advancements would progress to this point -- a 10-minute test that requires only the momentary placement of a finger on a test strip -- was inevitable. It's what comes after that will be significant. Courts have often cut law enforcement a lot of slack and tend to lag far behind tech developments and their implications on Constitutional rights. A new way to obtain evidence using something courts generally don't consider to be testimonial is going to disrupt the Constitution. Hopefully, the courts will recognize the distinction between identification and evidence and rule appropriately.

Filed Under: 4th amendment, 5th amendment, biometrics, drugs, fingerprints, forensics, law enforcement

Drug Dog Testing Process Eliminates Handler Bias. Unsurprisingly, Cops Don't Like it.

from the accurate-data-is-fake-news dept

When a cop needs an excuse to search something (but can't manage to talk the citizen into consenting) there's almost always a four-legged cop waiting in the wings to give the cop permission to do what he wanted to do anyway. You will rarely hear testimony given in any court case where a K9 hasn't "alerted" to the smell of drugs. Once this "alert" is delivered, officers are free to override objections to warrantless searches under the theory that a dog's permission is all that's needed.

What's willfully ignored by law enforcement officers is the nature of the beasts they deploy: dogs like pleasing handlers and will react to unconscious cues and/or do the thing they're expected to do: "find drugs." If the dog knows it can perform an act for a reward, it will perform that act, whether or not drugs are present. Unfortunately, there's a deliberate dearth of data when it comes to drug-sniffing dog fallibility. Tracking this data would undercut the dogs' raison d'etre: to act as probable cause for warrantless searches. This lack of data makes challenging drug dog "alerts" in court almost impossible.

Fortunately, someone's actually looking into making drug dogs better -- or, at the very least, providing evidence that drug dogs are no more accurate at detecting drugs than $2 field tests. A program started by a former police K9 trainer is looking to remove the human factor from drug dog performance evaluations.

One organization trying to address handler bias is the Pacific Northwest Police Detection Dog Association. In the U.S., a drug-sniffing dog team — the dog and its handler — has to be periodically retested and certified, usually by one of the many regional K9 associations. Some groups have tougher testing methods than others; the PNWK9 has a method that aspires to scientific levels of impartiality.

"It's a double-blind," says Fred Helfers, the retired police K9 handler and trainer who designed the system. "No outside influence."

In Helfers' tests, nobody in the room knows where the drugs are hidden; not the handler, not even the test administrator. That's to eliminate the possibility of someone unconsciously telegraphing signals to the dog as it gets close to the target.

Why this hasn't been done before is a mystery. (I mean, it's a mystery if we pretend there aren't a million reasons law enforcement agencies prefer the status quo.) As NPR points out, a study published seven years ago showed drug dogs respond more to handler cues than to the presence of drugs. Researcher Lisa Lit's tests found dogs alerting to areas researchers indicated scents would be likely, rather than where scents were actually located. What was presented as a test of drug dogs was actually a test of the dogs' handlers. The dogs failed because their handlers failed.

Needless to say, the study was unpopular in the law enforcement community. Law enforcement K9 trainers denounced the study and refused to provide any more assistance to researchers. Lit calls this study -- one that pointed out the Clever Hans-esque performance of drug sniffing dogs -- a "career killer." This is what happens to research that doesn't conform with law enforcement's self-image.

Helfers' testing process -- in which die rolls determine drug locations and eliminate tester bias -- doesn't conform with officers' apparently misplaced belief in their own "training and expertise."

Occasionally, the dice determine that there will be no drugs hidden at all — sometimes for several tests in a row. He recalls that happening at another certification event.

"There were some new teams that failed that sequence," Helfers says. "Because they didn't trust their dog."

He says those handlers couldn't get past their expectation that drugs should be there. "I think they 'overworked' the car. Instead of going around once or twice and trusting their dog and watching their dog work, maybe they'd seen something that wasn't there," Helfers says.

This shows there's no question drug dogs respond to handlers. If dogs fail to respond, the animals are treated as untrustworthy by the same officers who refer to them as "probable cause on four legs." This is part of the problematic law enforcement mindset. A cop would never stop anyone who isn't a criminal… at least according to cops. This likely isn't a conscious thought, but rather the expected outcome of years of instruction that lead officers to view a wide swath of innocent behavior as inherently suspicious. (See also: too nervous, too calm, moving too much, moving too little, not looking directly at officers, looking directly at officers, traveling on any major highway, driving too fast/too slow/too perfect, ad nauseum.)

There is no room in this mindset for the possibility that the person being questioned isn't a criminal. If a cop can't find anything, it's time for a drug dog to do a few laps around the person's car, luggage, etc. If there's still no "hit," the problem must be the dog rather than the lack of contraband. Why? Because the only reason a cop would be interested in this particular person is because this person is doing something illegal. All other possibilities are discarded. This is clearly and disturbingly illustrated by this statement from another K9 officer:

"There's been cars that my dog's hit on... and just because there wasn't a product in it, doesn't mean the dog can't smell it," says Gunnar Fulmer, a K9 officer with the Walla Walla Police Department. "[The drug odor] gets permeated in clothing, it gets permeated in the headliners in cars."

[...]

"The dogs are mainly used to confirm what we already suspect," says Fulmer. "When the dogs come out, about 99 percent of the time we get an alert. And it's because we already know what's in the car; we just need that confirmation to help us out with that."

Confirmation bias, plain as day, and yet Officer Fulmar seems completely unaware of the underlying thrust of his statement. Worse, officers like Fulmer remains opposed to tracking of K9 false hits or to the introduction of any form of scientific rigor to the process.

Handlers also point out that scientific neutrality is not something you can reasonably expect during traffic stops, since police are trained to act on their suspicions.

In short, officers want to have free rein to allow their hunches to develop into warrantless searches with the assistance of animals prone to responding to handlers' cues, rather than the existence of contraband. Better an innocent man have his vehicle tossed than an officer admit his K9 partner might be more interested in giving him what he wants (a warrantless search) than in detecting the presence (or non-presence) of drugs.

This mindset permeates the entire process. When testing methods eliminate officers' involuntary cues or point out how frequently dogs respond to their handlers, it's the process that's wrong. Or the dogs. But never, under any circumstances, are the officers wrong. Law enforcement is willingly operating in its own massive blind spot, unable to fathom the slim possibility that the person they thought had drugs on them might not actually possess any drugs.

And this doesn't even address the bottom feeders of law enforcement: officers who knowingly use K9s to skirt warrant requirements, telling citizens the dog "alerted" even when it hasn't or has only done so in response to the officer's prompts. All of this is excused when officers actually find drugs and the times they don't are waved away with tired Drug War cliches about the sacrifice of a few people's rights for the greater good.

What this testing method shows is dogs (and their handlers) aren't to be trusted -- not without more data. If law enforcement can't admit to being wrong, they'll never look for ways to improve. Given what's been shown, drug dogs should not be treated as "probable cause on four legs." At best, they're walking confirmation bias -- self-serving tools of civil liberties circumvention.

Filed Under: accuracy, bias, drug dogs, drugs, evidence, police

Sheriff, Deputies Indicted After Subjecting Entire High School To Invasive Pat Downs

from the bulk-violations dept

Earlier this year, the Worth County (GA) Sheriff's Department enraged an entire nation by subjecting the entire student body of a local high school to invasive pat downs. The reason for these searches? Sheriff Jeff Hobby believed drugs would be found on campus.

Invasive searches of students at Worth County High School in Sylvester are being investigated by the Atlanta-based Southern Center for Human Rights.

The Southern Center said Tuesday that hundreds of students at the South Georgia high school were subjected to a search conducted without a warrant. Some of the searches were “highly intrusive” and involved officers touching students’ genitals and breasts.

The Southern Center is raising questions about the legality of the search.

“The Sheriff’s search of Worth County High School students went far beyond what the law permits,” said SCHR attorney Crystal Redd. “The Sheriff had no authority to subject the entire student population to physical searches of their persons, and certainly none to search students in such an aggressive and inappropriate manner.”

The sheriff brought in drug-sniffing dogs and had his deputies frisk every single attending student. The sheriff claimed the searches were legal. And not just legal, but "necessary." The end result of the multiple invasions of personal privacy? Zero drugs, zero arrests.

No drugs were found in a search of Worth County High School Friday.

Perhaps Sheriff Hobby should have taken the results of a search performed a month earlier as indicative of future results.

The Sylvester Police Department did a search on March 17, and found no drugs.

Despite two negative search results, Sheriff Hobby still expressed a desire to search the school again.

When asked about that previous search that came up dry, Hobby said he didn't think that search was thorough, so he decided to do his own.

He said he believes there are drugs at the high school and the middle school, but also said that he will not do another search, due to response from community.

According to school policies, students may be searched if there's reasonable suspicion the student is in possession of an illegal item. The same rules apply to law enforcement, but they were ignored here. Sheriff Hobby claimed he could search any student he wanted to (in this case, all of them) simply because he was accompanied by a school administrator.

Hobby was wrong and is now facing some serious legal problems. First off, Hobby has been sued by several of the students frisked by his officers.

A federal civil rights lawsuit filed last week against a south Georgia sheriff offers new details of the bizarre school-wide search of hundreds of students where deputies allegedly touched girls’ breasts, vaginal areas and groped boys in their groins.

One of the nine Worth County High School students who filed the lawsuit, identified as K.P., told the AJC that the April 14 search was “very, very scary.” She said the incident was stuck in her memory and it colored the rest of her senior year.

The lawsuit also details how much time the Sheriff's Department wasted violating rights and failing to discover contraband.

[T]he sheriff and his deputies locked the high school down for more than four hours and conducted body searches of close to 800 students present in school that day...

This lawsuit is a problem for Sheriff Hobby, especially as it will be much more difficult for the sheriff and his deputies to avail themselves of immunity. Indictments have that sort of effect on immunity claims. [via Greg Doucette]

A south Georgia grand jury indicted Worth County Sheriff Jeff Hobby on Tuesday for sexual battery, false imprisonment and violation of oath of office after he ordered a school-wide search of hundreds of high school students. Deputies allegedly touched girls vaginas and breasts and groped boys in their groin area during the search at the Worth County High School April 14.

Two of Hobby’s deputies were also indicted Tuesday in connection with the case.

Somewhat ironically, the indicted sheriff's attorney is bemoaning the same grand jury system law enforcement loves when it's indicting civilians.

Under Georgia law, a police officer or sheriff accused of a crime related to their official duties can appear before a grand jury to give a statement. Private citizens facing criminal charges do not get this privilege. But the sheriff and his deputies chose not to invoke that privilege. All stayed out of the grand jury room. That’s at least in part due to a new law that curbed some of the unique privileges officers previously had to sway grand jurors.

Under a new law that took effect last year, officers would have been subject to cross examination and wouldn’t have been able to rebut statements made by prosecutors during that cross-examination.

“It’s not a balanced proceeding,” said Norman Crowe Jr., the sheriff’s attorney.

Well, of course it isn't. That's been obvious for years. But no one on the prosecutorial side has anything bad to say about it until they end up as grist for the grand jury mill.

Apparently, Sheriff Hobby is going to claim he's innocent because he didn't personally pat down any of the students. That may save him from the sexual battery charge, but it's not going to help him much with the other two: violation of oath of office and false imprisonment. Without the sheriff giving the orders, it's unlikely his deputies would have locked down a school and patted down 800 students.

Hobby's statements made in defense of the search -- all made pre-lawsuit and pre-indictment -- aren't going to help much either. He feels he's completely justified in performing en masse suspicionless searches of US citizens. They may have limited rights as minors and school attendees, but their rights do not vanish entirely once they walk on campus.

The whole debacle was an ugly abuse of Hobby's power. Preventing future abuses depends greatly on the judicial system's ability to hold the sheriff accountable for his actions. With Hobby in charge, the Worth County Sheriff's Department is unqualified to police itself. Whether or not he's convicted, he should be removed from office. His post-search comments show he's willing to violate rights of hundreds of people simultaneously to find contraband he swears exists, but has yet to actually discover.

Filed Under: 4th amendment, drugs, false imprisonment, georgia, high school, indictment, jeff hobby, pat downs, sexual battery, worth county

Gov't Intercepted Millions Of Conversations In Single Drug Investigation, Netted Zero Convictions

from the Title:-III,-Privacy:-0 dept

The most intrusive of your tax dollars hard at work:

US authorities intercepted and recorded millions of phone calls last year under a single wiretap order, authorized as part of a narcotics investigation.

The wiretap order authorized an unknown government agency to carry out real-time intercepts of 3.29 million cell phone conversations over a two-month period at some point during 2016, after the order was applied for in late 2015.

This detail, contained in the US Courts' latest wiretap report, shows how much the government can get with a single wiretap order. Using assertions of "training and expertise," US drug warriors intercepted millions of phone calls, ringing up a $335,000 third-party phone bill in the process.

But hey, the Drug War can't be won without casting a wide dragnet. Drug conspiracies are vast and far-reaching, often leading law enforcement to bigger fish further down the line. Or so the affidavit assertions say…

But the authorities noted that the surveillance effort led to no incriminating intercepts, and none of the handful of those arrested have been brought to trial or convicted.

To recap:

1 wiretap warrant

$335,000 spent

3.3 million communications intercepted

0 convictions

The statutes governing wiretap warrants designate they should only be used when all other, less-intrusive investigative methods have failed. The fact that these 3.3 million communications failed to add up to a single conviction suggests other investigative methods weren't fully explored before a judge autographed this warrant request. To be fair to the judge, the requesting agency probably wasn't forthcoming about its previous investigative ventures.

But that's enough being fair to judges: Marcy Wheeler notes courts approving wiretap orders are even more of a rubberstamp than the FISA court.

The FISC report showed that that court denied in full 8 of 1485 individual US based applications, at a rate of .5%, along with partially denying or modifying a significant number of others.

The Article III report showed that out of 3170 requests, state and federal courts denied just 2 requests.

[...]

That’s a denial rate of .06%.

If there's good news to be gleaned from this report, it's that the number of wiretap orders obtained has dropped dramatically over the last year.

A total of 3,168 wiretaps were reported as authorized in 2016, compared with 4,148 the previous year. Of those, 1,551 were authorized by federal judges, compared with 1,403 in 2015. A total of 1,617 wiretaps were authorized by state judges, compared with 2,745 in 2015.

There's been a slight uptick in federal court approvals, but a dramatic downturn in state court approvals. Most of this drop can likely be linked to 0 being under the direction of a new District Attorney, who has stepped up to curb the wiretap abuses by his predecessor. For several years, the DEA -- which should be running its wiretap requests through federal courts -- was running its wiretap affidavits past an absentee DA and a very compliant (and efficient) state court judge.

Nearly all of that surveillance was authorized by a single state court judge in Riverside County, who last year signed off on almost five times as many wiretaps as any other judge in the United States. The judge's orders allowed investigators — usually from the U.S. Drug Enforcement Administration — to intercept more than 2 million conversations involving 44,000 people, federal court records show.

As USA Today's Brad Heath discovered, state court judge Helios Hernandez was a regular wiretap warrant printing press, which led to the DEA funneling a great deal of its requests through his courtroom.

Officials approved another 607 wiretaps in 2015, according to the figures released by the district attorney’s office. Most were approved in the first half of the year, before [new DA Mike] Hestrin said he installed a “stricter” standard that required every new wiretap application to have a “strong investigatory nexus” to Riverside County.

Taps have dwindled since then. So far this year [2016], Hestrin has approved only 14. In the first two months of last year, his office approved 126.

As Heath's report notes, this single DA's office and single state court judge were once responsible for 20% of the nation's state court-approved wiretaps. This no longer is the case, and the DEA's recent legal troubles associated with these questionable wiretaps has probably pushed it towards seeking more federal judges' signatures last year -- something it should have been doing all along.

Filed Under: drugs, intercepted calls, phone calls, warrants, wiretaps

White House Plan To Reduce Drug Prices... Is To EXTEND Patents?

from the that's-not-how-it-works-at-all dept

While Congress is still doing its thing to try to make the US healthcare system an even bigger laughingstock around the world, the White House is apparently considering an executive order targeting high drug prices. Of course, it handed this power over to Joe Grogan, a (very recent) former lobbyist for a giant pharma company, Gilead, that has been at the center of some controversy over its highly priced drugs. Grogan is apparently leading this effort despite not having an ethics waiver, which means he's supposed to recuse himself from these discussions, rather than lead them. But, you know, that's not happening in the swampy, swampy waters of Washington DC. So just what would Grogan suggest as a way to lower drug prices? How about extending pharmaceutical patents? Yes. Extending.

The documents reveal behind-the-scenes discussions influenced by the pharmaceutical industry. Joe Grogan, associate director of health programs for the Office of Management and Budget (OMB), has led the group. Until March, Grogan served as a lobbyist for Gilead Sciences, the pharmaceutical company that priced its hepatitis C drugs at $1,000 per pill.

To solve the crisis of high drug prices, the group discussed strengthening the monopoly rights of pharmaceuticals overseas, ending discounts for low-income hospitals and accelerating drug approvals by the Food and Drug Administration. The White House declined to comment on the working group.

In what world does anyone with even the slightest economic knowledge think that extending/expanding monopoly powers would bring prices down rather than up? Want to know one of the reasons why drugs are so crazy expensive right now? It's because those monopoly rights have already gone way too far. If you want lower prices, you want competition in the market, not monopoly suppliers who know they're dealing with major health issues -- and the willingness of insurance companies to pay through the nose.

You can criticize all sorts of things about the way healthcare is handled in this country, or how drug prices are determined. But, it's impossible to see how anyone with a straight face could possibly claim that increasing patent rights would lead to lower prices. Of course, the argument here is effectively that by making patent powers greater overseas, the big pharma companies can milk foreigners for higher drug prices... which would make it easier for them to drop drug prices at home. Here are the details from the report:

Extending the patent life of drugs in foreign markets to “provide for protection and enforcement of intellectual property rights.” This will ensure “that American consumers do not unfairly subsidize research and development for people throughout the globe.”

Except, raise your hand if you think that drug companies would voluntarily lower drug prices in the US, just because they can now also price gouge sick people in other countries? Yeah, didn't think so. If you want to lower drug prices, the way to do it is to cut back the monopoly powers of Big Pharma so that they're actually forced to compete more. This isn't a theoretical or academic claim. Just look at the price of drugs after one goes off patent. They immediately drop. Want cheaper drugs? Ditch the patents and watch the market do its thing.

Filed Under: drug prices, drugs, enforcement, joe grogan, omb, patents, pharmaceuticals
Companies: gilead sciences