You Apparently Can't Win A Drug War Without Sexually Abusing Kids And Murdering Parents

from the flag-emojis-and-etc. dept

This is the price we're paying to win fight stand our ground during participate in a drug war. We take criminals under our wing, turn them into informants, and send them out into the general population to engage in criminal activity -- all under the assumption this will eventually lead to the dismantling of a drug cartel.

Of course, this is the same rationale propelling civil asset forfeiture. But no matter how much property is taken from people never charged with crimes, drug cartels remain intact and their products continue to flow into the country. But that's only dollars and cars and houses lost. This case [PDF] -- presided over by the Tenth Circuit Appeals Court -- deals with the loss of innocence and life… all at the hands of a DEA informant.

The backstory of the DEA informant is so much easier to take than the backstory of the lawsuit, so we'll start there.

The events began in 2011, when Mr. Quintana was arrested by state authorities after a search warrant executed at his home uncovered drugs and stolen handguns. After his arrest and release from custody the DEA registered him as an active informant. He remained registered as an informant until April 4, 2013. As part of Mr. Quintana’s agreement with the DEA the defendants “controlled the evidence and the status and direction of the State of New Mexico charges” against him. Aplt. App., Vol. I at 24 ¶ 83 (emphasis omitted). At the time the DEA engaged him as an informant, Mr. Quintana’s criminal record reflected his violent propensities.

The footnote attached to "violent propensities" reads":

Mr. Quintana’s criminal record includes “Domestic Violence, Battery upon a Household Member, Child Abuse, False Imprisonment, Battery upon a Household Member with a Firearm, Attempted Murder, Kidnapping, Conspiracy, Felon in Possession of a Firearm . . . Trafficking a Controlled Substance, Receiving or Transferring a Stolen Firearm, and threats of Battery and Arson.”

Here's more on the DEA informant, via the lower court's decision:

In particular, in 2005, Quintana was convicted of Aggravated Battery Against a Household Member with a Deadly Weapon after battering his wife in front of his wife’s children, arming himself with a handgun and pressing it against his wife’s mouth, saying “I want to kill you, you fucking bitch.”

The DEA viewed this horrendous person as an asset, releasing him back into the public to continue being his awful self while occasionally providing agents with tips. The record doesn't show how many investigations Quintana aided. It may have been zero. It may have been dozens. No matter what the total was, it cannot possibly offset the criminal acts he committed that led to this lawsuit.

In August 2012, during the period in which he was acting as an informant, Mr. Quintana and his family moved into the residence of Jason Estrada and his family, with the Estrada family’s permission. Plaintiffs allege the DEA was aware or should have been aware of Mr. Quintana’s residential location and circumstances. For its part, the Estrada family was unaware that Mr. Quintana was serving as a DEA informant. Nor did the government warn the family of his violent nature or history.

Within a month, Mr. Quintana began sexually abusing Jason Estrada’s minor son, JGE, who was then five years old. The abuse continued until February 20, 2013, when Mr. Quintana and his family moved out of the Estrada residence.

This is horrifying enough. But it gets worse. JGE told his parents about the abuse after Quintana moved out. JGE's father began asking Quintana's friends and associates about this molestation or any other criminal acts Quintana had engaged in. Quintana found out about this and decided to shut JGE's father up.

On April 3, 2013, Mr. Quintana and two other men travelled to the Estrada residence. In the presence of JGE, they beat and shot Jason Estrada, who died from his injuries.

Here's the coda, which is far too little far too late:

Approximately one day later, “the United States and the Defendants deactivated DEA Informant Edward Quintana.”

And that's the end of the story. The lower court granted qualified immunity to the DEA agents, stating no policy or guideline or action/inaction could have foreseeably led to this tragic turn of events. It also allowed the US government to duck the federal court claims, finding the complaint failed to state a claim under the Federal Tort Claims Act.

None of these rulings were appealed so that leaves the Appeals Court with the plaintiff's last-ditch Rule 59(e) motion to consider. This appeal route asks the court to reconsider the lower court's ruling in total to find reversible errors and/or consider new evidence. The court finds no errors and no new evidence, so JGE and his relatives all just have to live with the sacrifice his father apparently made for this country and its war on drugs. The lower court's ruling is affirmed.

Maybe there really is no clear path to holding the government accountable for the damage done by its war on drugs. All we can do, for the most part, is count the costs: the trillions of dollars and the thousands of lives. Some of this is lost in massive chunks -- abstract amounts relegated to spreadsheets and yearly reporting. Some of it is lost individually, with enough detail we're all able to see the blood on our hands. This is one of those cases. And like the Drug War itself, there's no closure to be had.

Filed Under: 10th circuit, criminals, dea, drug war, edward quintana, informants, jason estrada

State Investigator Granted Immunity For Hours-Long Detention Of Doctor At Gunpoint During A Search For Medical Records

from the CAREFUL!-HE'S-GOT-A-FAX-MACHINE! dept

How far can a law enforcement officer go to ensure an administrative search -- one looking for records, rather than contraband -- is carried out without interference? Pretty damn far, it appears.

A case before the Fifth Circuit Court of Appeals alleges Fourth Amendment violations during a search for medical records. Dr. Ikechukwu Okorie was on the receiving end of a search due to the state licensing board's suspicion he was over-prescribing opioids. Okorie wasn't facing criminal charges. The state board of licensing had suspended his license while it investigated. Okorie sought recertification. The board agreed to meet with him but also sought an administrative warrant to search his medical office for evidence it needed to make a determination on his recertification.

Serving a warrant of this type -- one not linked to any criminal accusations -- takes a village, apparently. From the decision [PDF]:

According to his complaint and Rule 7 supplement to that pleading, a large team made up of the following executed the warrant: five Board investigators, a Mississippi Bureau of Narcotics agent, a Hattiesburg High Intensity Drug Trafficking Agent, and two federal DEA agents.

Lots of bored federales hanging around Hattiesburg, it seems. That initial show of force -- nine officers, most of them armed -- was followed by more shows of force. One officer in particular -- a board investigator -- was especially enthusiastic about ensuring Dr. Okorie didn't leave the premises or disrupt the search.

On entering the clinic, Board investigator Jonathan Dalton brandished his gun and pushed Okorie into his office. He then served Okorie with the warrant. After reviewing the warrant, Okorie attempted to leave his office to discuss it with his staff. Dalton stopped Okorie. He pushed Okorie down while saying, “if you don’t sit down I will put you down!” Okorie feared for his life. Dalton eventually allowed Okorie to instruct his staff to fax the warrant to his lawyers and print the requested patient records. But while Okorie did so, Dalton stood next to him with his gun drawn.

This is extremely odd behavior for a Board investigator, especially since Dr. Okorie had approached the board to ask for a recertification hearing. But that wasn't the extent of the investigator's abuse of his position.

Once Okorie briefly spoke with his staff, Dalton brought him back into his office, where Okorie was detained for the remainder of the search. After two hours had passed, Okorie asked to go to the bathroom and was told no. Okorie “plead[ed]” with Dalton, explaining that he would have to urinate himself if not allowed to use the restroom. At this point, Dalton, “with his gun drawn,” escorted Okorie to the bathroom. Dalton forced Okorie to leave the bathroom door open the entire time, even though a female investigator and other individuals were present. Dalton also instructed Okorie to keep his hands where Dalton could see them. Only when the agents were done executing the search, three to four hours after it began, was Okorie allowed to leave the clinic.

The lower court granted the investigator immunity, ruling that it was not clearly established government agents couldn't act like unreasonable assholes during an administrative search not related to a criminal investigation. Sure, it seems excessive, considering how many officers were present during the search (nine) and how cooperative Dr. Okorie was, but there's a dearth of caselaw related to the Fourth Amendment and administrative searches.

The Fifth Circuit Court notes that these cases are becoming more common -- suggesting the government behaves just as badly during non-criminal searches. This is the third case dealing with administrative searches it has seen in the last year. Unfortunately for everyone who isn't a law enforcement agent, the cases haven't been perfectly identical, so government employees keep escaping being held personally responsible for rights violations.

The last case the Fifth Circuit examined dealing with these issues resulted in a win for the accused officer and a blistering statement from Judge Don Willett on the farce that is qualified immunity.

The court is right about Dr. Zadeh’s rights: They were violated.

But owing to a legal deus ex machina—the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.

[...]

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.

There's no dissent attached to this one, even though it ultimately finds in favor of the government. The court says Okorie's claims are valid. There was nothing about this search that justified the show of force by Dalton.

Though law enforcement has understandable safety concerns when initially securing any scene, cf. Bailey v. United States, 568 U.S. 186, 195 (2013) (noting that Summers recognizes a need to “secure the premises” and for officers to take “command of the situation”), that would not seem to support hours-long detention of nonviolent individuals present at an administrative search. Yet Dalton allegedly drew his gun while accompanying Okorie and made him keep his hands visible at all times, even two hours into the detention. By this point, concerns about safety did not justify such intrusive measures. And with nine agents present in the office to execute the search, the need for such an intrusive detention was even lower.

[...]

Nothing indicates Okorie would have been uncooperative had he not been detained, and certainly nothing indicates that a drawn gun was necessary to keep Okorie restrained.

Even so, the lack of anything on point means Dalton can't be held accountable, seeing as he was the first to violate someone's rights in this particular manner.

As we have discussed, that at a minimum affects the balancing of Summers’s interests in analyzing the intrusiveness of a detention even if it does not outright eliminate the government’s right to detain without probable cause. But we have never considered the question, and only a few other courts have. The dearth of caselaw on this question might indicate the government rarely detains people while executing administrative searches, a fact that would be consistent with Okorie’s view of the Fourth Amendment. The consequence, though, is that Okorie is unable to point to caselaw clearly establishing the unlawfulness of this type of detention. As a result, qualified immunity defeats Okorie’s claim.

Here's the silver lining: if any armed officer decides to violate someone's rights this way in the future during an administrative search… well, they've been duly warned.

Going forward, an hours-long detention of a person during an administrative search of a medical clinic or similar establishment, during which a gun is drawn, will be unlawful absent heightened security concerns.

That's the bright line. It's very specific, dealing with only one type of search, and has requirements that could possibly be overlooked if the government can make the court believe the search presented "heightened security concerns." Careful with those "furtive movements," searchees.

Filed Under: 5th circuit, dea, ikechukwu okorie, immunity, jonathan dalton, licensing, qualified immunity, warrant

Oversight Report Says DEA Ran Multiple Bulk Data Collection Programs With Zero Legal Clearance

from the can't-have-your-rules-interfering-with-our-drug-war,-man dept

The NSA isn't the only collector of bulk phone records. The NSA may not even be doing this anymore, but for a long time, it was not only the NSA's bread-and-butter, but the DEA's as well.

The DEA has run multiple bulk records collections for more than 20 years, given the green light by our current Attorney General, William Barr, who also ran the DOJ back in 1992. These not only targeted calls placed to "drug nexus" countries, but purchase records as well. "Nexus" is a slippery word -- one the NSA takes advantage of as well. US law enforcement considers almost anywhere in or out of the country to be a "drug nexus," which gives it the suspicion it needs to pull over drivers on interstate highways or rifle through their belongings at airports looking for drugs cash.

Using this flimsy connective tissue and a bunch of subpoenas, the DEA approached private companies and demanded vast amounts of third party records. Some of these details were exposed when the DEA's "Hemisphere" documents were published. Six years after Ed Snowden let the world know the NSA was collecting phone records in bulk, the Inspector General of the DOJ has finally released a report [PDF] on the DEA's bulk collections.

According to the IG report, the DEA ran three bulk collection programs. Program A collected bulk telephone records on calls from the US to "drug nexus" countries. These were obtained with "non-target-specific" subpoenas directly from the service provider. Like the NSA, the DEA wanted metadata about these calls, like date, time, and duration.

Program B did pretty much the same thing: non-targeted subpoenas were handed to "selected vendors" to gather data on purchases, which were then cross-referenced with the DEA's bulk records database to (finally!) identify targets to investigate. (What purchases? According to Charlie Savage of the New York Times, the DEA is tracking purchases of money counting machines. This is probably information the DEA didn't want the public to have, but a redaction failure caught by Savage exposed the intent of this collection program.)

That instruction, it said, “was intended to protect the program’s sources and methods; criminals would obtain money counters by other means if they knew that the D.E.A. collected this data.”

Program C resembled the modified Section 215 program -- the one that appears to never have gotten off the ground following the USA Freedom Act reforms. Non-targeted subpoenas were handed to telcos, which then searched their own databases to find connections that might be of interest to the DEA, handing it only the results of these restricted searches, rather than dumping everything into the DEA's data stores.

There's a similar thread holding all of these programs together: they weren't strictly legal.

Our review found that the DEA (and the Department with respect to Program A, Collection 1) failed to conduct a comprehensive legal analysis of the DEA's use of its administrative subpoena authority to collect or exploit bulk data before initiating or participating in any of the three programs. We found this failure troubling with respect to Program A, Collection 1 and Program B because these programs involved a uniquely expansive use of Section 876(a) authority to collect data in bulk without making a prior finding that the records were, in the language of that statutory provision enabling DEA's subpoena authority, "relevant or material" to any specific defined investigation.

Several published court decisions have clearly suggested potential challenges to the validity of the DEA's use of its statutory subpoena power in this expansive, non-targeted manner. We also found the absence of a robust legal review troubling because the DEA utilized the bulk data collected by means of Program A, Collection 1 and Program B subpoenas on an unknown number of occasions in support of investigations by non-DEA federal agencies that had no apparent connection to specific drug investigations. This utilization raised significant legal questions because the DEA had amassed the Program A, Collection 1 and Program B bulk data collections under its statutory authority, in 21 U.S.C. § 876(a), to require the production of data that was "relevant or material" to a drug investigation.

We found that Program C raised different kinds of challenging legal issues that the DEA also failed to fully assess. We found that the DEA failed to formalize a complete and adequate legal assessment regarding its use of Program C to obtain reports and other advanced analytical information to ensure such use was lawful and appropriate under its administrative subpoena authority, 21 U.S.C. § 876(a), and the Electronic Communications Privacy Act, 18 U.S.C. § 2703(c)(2).

These legal problems were compounded by the DEA's careless approach to the few legal boundaries it chose to respect. The DEA used untargeted subpoenas that failed to show the records had relevance to active drug investigations. What little there was in place to vet subpoenas prior to issuance consisted of a pull-down menu that only listed kinds of sources (confidential informant, other ongoing investigation, etc.). Nothing specified exactly why the records requested were being sought. The DEA's sole backstop for auditing its subpoenas was nothing more than confirming the pulldown menu of vague sources had actually been used when filling in the boilerplate. The DEA allowed agents to shrug their way into hundreds or thousands of records at a time using nothing more than this:

In practice, the DEA typically did not require more "particularization" than a single conclusory sentence, and did not explicitly require the documentation or certification that the request was relevant to a drug investigation...

Then there's the DEA's massive data retention problem. However indiscriminate the collection process was, the retention/deletion "process" was even worse.

We also found that the DEA failed to establish any policies on storage or retention of the Program B bulk data at any time before or during the operation of that program. Although Program B is no longer active, the DEA has failed to develop a final disposition plan regarding tens of thousands of records of purchases that reside on DEA servers.

The IG has a few problems with the DEA's parallel construction, but it doesn't really have a problem with parallel construction itself. It doesn't consider hiding the origin of evidence "inappropriate," but it does draw the line at hiding this from everyone involved in a prosecution.

[P]arallel construction should not be used to prevent prosecutors from fully assessing their discovery and disclosure obligations in criminal cases.

However, most the DOJ IG's sympathies fall on the side of the prosecution, which should surprise no one.

While the DEA has denied misusing parallel construction in this manner, we found some troubling statements in the DEA's training materials and other documents, including that Program A investigative products cannot be shared with prosecutors. Such statements appear to be in tension with Department policy on a federal prosecutor's "duty to search" for discoverable information from all members of the "prosecution team," which typically includes federal law enforcement officers who participated in the investigation of the defendant.

This doesn't leave much consideration for defendants, who are forced to fight blind when challenging evidence used against them.

There are recommendations, but they're not of much use since two of three programs are pretty much dead. The bulk collection of purchase data (Program B) was killed in 2014, following the Snowden leaks. Program C operates pretty much like the modified Section 215 collection -- with telcos searching and storing records, rather than dumping them into the DEA's databases. Program A was also modified shortly after the Snowden leaks began, with a heavier emphasis on ensuring subpoenas were linked to ongoing drug investigations.

It will probably be several years before we see a follow-up report on the DEA's bulk collections. As the IG notes, the DEA did everything it could to stonewall this investigation.

For a substantial period after we initiated this review, the DEA took many actions that hindered the OIG's access to information available to it that the OIG was plainly authorized to obtain under the Inspector General Act.

These actions included failing to produce or delaying the production of relevant and responsive materials without any compelling or sufficient basis.

[...]

Further, the OIG discovered many highly relevant documents, which had not been produced, only after learning about them in witness interviews. This latter issue was particularly significant with respect to the dearth of documents containing legal reviews of programs in our review, which the DEA failed to produce to the OIG until a witness identified their existence to us. The DEA's actions significantly delayed our review and were wholly inconsistent with the requirements of the Inspector General Act.

This tracks with the Inspector General's problems with multiple DOJ agencies over the past several years. The FBI and DEA blow off investigations, refuse to produce documents, and do as little as possible to ensure their oversight can actually do any overseeing.

As the report notes, the programs were never on solid legal ground. It points out the programs were brought to life under AG Barr, who never bothered to ask for a legal opinion from the DOJ's Office of Legal Counsel before setting them in motion. The FBI had concerns about these programs when the DEA offered it access, but those questions went unanswered. The last time the legal questions were thoroughly discussed was in 1999, seven years after the programs went into effect.

Between 1999 and the 2013 Snowden leaks, only a single memo discussing the potential legal pitfalls of these bulk collections was issued. The single conclusion drawn was that the public should never be allowed to find out about these collections. And for the most part we didn't -- not until years after the fact. Good job... I guess.

Two decades and no definitive legal clearance. The only blip in the data stream was the unscheduled leaking of NSA documents. Without Snowden, these programs would likely still be running unaltered -- hoovering up millions of phone records with zero reasonable suspicion.

Filed Under: bulk data collection, dea, privacy

EFF Wins FOIA Lawsuit Against DEA, Forces The Release Of More Info About Its Hemisphere Program

from the creeping-transparency dept

Thanks to a FOIA lawsuit, the EFF has lifted a number of redactions from documents detailing the DEA's Hemisphere program. This program was first exposed in 2013 when the New York Times obtained documents showing AT&T was working side-by-side with government agents to hand over massive amount of call records in response to DEA subpoenas.

AT&T has always considered itself to be an integral part of federal government surveillance programs, often going beyond what's required to comply with demands for info. In the case of Hemisphere, it appeared to be operating as an unofficial arm of the government by "embedding" personnel in the DEA to expedite its surveillance efforts.

More documents obtained by other FOIA requesters have peeled back a little bit of the secrecy. Even with redactions in place, the astonishing breadth of Hemisphere's surveillance capabilities was evident. Communications contained in the documents showed both the DEA and AT&T encouraged hiding the program from criminal defendants and the courts overseeing their cases. Parallel construction was the de facto policy, preventing anyone outside of US law enforcement from attacking the origin of evidence used against them.

The EFF's lawsuit victory has revealed even more of the program's inner workings [PDF], including the forms used by the DEA to initiate phone record searches. The searches hardly appear to be targeted, as agents were able to capture an unlimited amount of call data using a single subpoena.

Redactions lifted from previously-released emails show US law enforcement agencies using Hemisphere being told directly to engage in parallel construction.

Operation Hemisphere was initiated after 9/11 and is the name of an AT&T pointing mechanism to give the requester telephonic information that crosses through AT&T towers/switches. When all other means are exhausted in trying to locate a replacement number, a Hemisphere request may be submitted. Similar to ETS information, Hemisphere information is not to be used in 6s, affidavits, etc.

When such information is needed, the requestor submits a special subpoena issued to AT&T and send it to the Op. Hemisphere POC, who then forwards it to the Hemisphere representative in Los Angeles. The response often determines whether or not the agent or analyst will perform a parallel construction.

It also shows the DEA attempting to disavow ownership of the program it spearheaded and recommended to local law enforcement agencies. In response to Rep. Darrell Issa's inquiries about the program -- prompted by the 2013 New York Times reporting -- the DEA tried to claim it had no control of the program and could not discuss it with Congressional oversight.

However, I would note that we will NOT be able to brief on Hemisphere-this is NOT a DEA program. It was created by and is currently managed by ONDCP. I don't want to push you oft: but Hemisphere is not in our wheelhouse.

This is from Erik Akers of the DEA, making the incredulous assertion a program used hundreds of times by the DEA is not "in the DEA's wheelhouse." Akers pushes it back on the Office of National Drug Control Policy, which doesn't appear to be empowered to create and deploy surveillance programs. Here's what the ONDCP can do, according to the federal government's own website.

A component of the Executive Office of the President, ONDCP was created by the Anti-Drug Abuse Act of 1988. The ONDCP Director is the principal advisor to the President on drug control issues. ONDCP coordinates the drug control activities and related funding of 16 Federal Departments and Agencies. Each year, ONDCP produces the annual National Drug Control Strategy, which outlines Administration efforts for the Nation to reduce illicit drug use, manufacturing and trafficking; drug-related crime and violence; and drug-related health consequences. ONDCP also leads the development of the consolidated Federal drug control budget, which is published annually in the National Drug Control Strategy: Budget and Performance Summary.

The ONDCP is advisory. It may provide legal guidance when crafting programs, but there's nothing in the office's duties that includes creating and engaging in surveillance/collection programs. It may serve as the administrative body above the nation's HIDTA (High-Intensity Drug Trafficking Area) activities, but it's not the agency that approaches telcos and demands call records. The DEA does that. To pretend it doesn't is laughable, but that's exactly what the DEA did when its program was exposed by journalists.

The Los Angeles HIDTA -- which oversees roughly a third of the nation -- put out this statement to participants in the Hemisphere program, again in response to 2013's exposure of the program. In it, the HIDTA claims the program is legal, super-powerful, nothing like the NSA, and somehow entitled to secrecy because the DEA and US law enforcement have nothing to hide.

IF HIDTA in general decides to put out some edict to not allow your agents/detectives to utilize this ''tool" it would give the impression to the "common man" .. . jury standards ... that we collectively did something WRONG ... which as we all know is the furthest from the truth.

Hemi is nothing more than AT&T's "Super Search Engine" ... "Google on Steroids" as it were .. . A software record search system developed to reach into AT&T's numerous stove-piped databases; coupled with Analysts who knows what we (law enforcement) is asking for as well how to interpret their confusing raw record data once retrieved ... And all is done through legally approved documents (Admin Subpoena for Feds, Court Orders by State/Locals). That's it ... Nothing more, nothing less ... Period.

Additionally, from a legal perspective ... this system was scrutinized by Corporate Attorneys, Local, State and Federal Prosecutors, US DOJ, FBI and DEA General Counsel Attorneys, and Judges as well ... ALL OF WHOM concur that Hemi is a legal tool ... and nothing MORE than just a "tool."

As far as "keeping it a secret" per se (an issue raised in the articles based on one of the slides) ... Our rational has been simple and truly hasn't changed since the beginning of Sir Robert Peel and the origins of today's "Modern Day Law Enforcement" ... we were attempting to NOT educate the Cartel Attorneys et al on the systems and practices we law enforcement professionals legally have available at our disposal (Key word LEGALLY!)

The article "likens" the Hemisphere Project with the NSA Project ... In short, they're apples & oranges. To access Hemisphere a law enforcement officer/agent must have PC specific to their search request, then must provide either a Federal Admin Subpoena or have a judge sign a Court Order in the case of state/local investigators. This is in total contrast to the blanket Patriot Act search methods used by NSA.

To sum up: the DEA doesn't want to talk about a program it claims it doesn't control. The DEA redacted tons of info about a program that's completely legal and it shouldn't have to justify to the American public, while simultaneously hiding the use of the program from criminal defendants and judges. It is not the NSA, the DEA claims, while engaging in many of the NSA's tactics, like parallel construction and Glomar-esque non-denial denials of the program's existence.

Over in the private sector, AT&T decided it was more DEA than telco to engage in the program, turning a decent profit on unchecked surveillance and benefiting from the legal immunity extended to private sector participants in government surveillance programs. More details will likely emerge, but it's unlikely to uncover some previously-withheld justification that makes the DEA's use of "Google on steroids" phone record searches acceptable.

Filed Under: dea, foia, hemisphere, parallel construction, surveillance
Companies: at&t, eff

When Not Hiding Cameras In Traffic Barrels And Streetlights, The DEA Is Shoving Them Into... Vacuums?

from the DEA-surveillance-sucks dept

If it exists, the DEA probably wants to stash a camera in it.

A Denair, California-based company called the Special Services Group, LLC won a $42,595 DEA purchase order at the end of November for a “custom Shop Vac concealment with Canon M50B.” Canon describes the M50B as a “high-sensitivity…PTZ [Pan-Tilt-Zoom] network camera” that “captures video with remarkable color and clarity, even in very low-light environments.” The M50B retails for about $3,400; the acquisition is being funded by the DEA’s Office of Investigative Technology and is presumably intended to assist agents in a specific operation, rather than for wider, passive monitoring.

This almost sounds like an ultra-low tech version of the NSA's hardware interdiction program. The NSA intercepts computer equipment to install hardware/software backdoors. The DEA's vacuum camera possibly could be stashed in a Shop Vac en route to a targeted person/business. Either that or a DEA agent/informant is going to pretend to be a janitor and wheel around a loaded Shop Vac to capture footage.

It's weird but it's pretty much in line with the DEA's procurement history. A report from Quartz last month showed the DEA was buying cameras concealed in streetlights, traffic barrels, and speed-display road signs. The last one on the list doesn't house ordinary cameras, but rather automated license plate readers.

Are there Constitutional concerns? Sure. They're pretty minimal in areas where any activity could be observed by a member of the public. But they're not nonexistent. And much of this surveillance activity occurs with the silent blessing of the city governments that own the repurposed streetlights. The government has occasionally pushed for upgraded streetlight systems, with the main "improvement" being the addition of surveillance devices.

Chad Marlow, a senior advocacy and policy counsel for the American Civil Liberties Union, says efforts to put cameras in street lights have been proposed before by local law enforcement, typically as part of a “smart” LED street light system.

“It basically has the ability to turn every streetlight into a surveillance device, which is very Orwellian to say the least,” Marlow told Quartz. “In most jurisdictions, the local police or department of public works are authorized to make these decisions unilaterally and in secret. There’s no public debate or oversight.”

The Shop Vac+camera is more problematic. Vacuums are typically used in areas not readily visible to the public. This narc vac deployment hopefully comes with a warrant attached. Someone consenting to having an area vacuumed isn't the same as consenting to a search. This device can do both at the same time, which would appear to be a Fourth Amendment issue if there's no accompanying paperwork.

Of course, it could be argued allowing someone like a DEA agent/informant into a private area is tacit consent to be searched. After all, anything seen by the camera would be seen by its operator. Anything illegal observed by this third party could be reported to law enforcement. Utilizing a camera as another set of eyes doesn't undercut this Fourth Amendment end-around. (If it's a DEA informant deploying the vacu-cam, the government can't claim it was a private search, so there's that...) The best solution is don't do illegal stuff where it can be observed by anyone -- or anything -- you don't know inside and out.

I wouldn't hold my breath waiting for this tactic to be discussed in court. There's nothing particularly secretive about the tech angle, especially when there's publicly-available acquisition documents directly referencing both the mean and the method. But I'm sure the DEA will still argue discussing a camera in a Shop Vac in open court will jeopardize future/ongoing investigations. However this procurement pans out, it's probably safe to say more than a few pieces of cleaning equipment underwent exploratory disassembly following the publication of the DEA's acquisition

Filed Under: cameras, dea, hidden cameras, surveillance, vacuum cleaners

Utah's Top Court Says Cops Can't Use Federal Loophole To Dodge Criminal Charge Requirement For Forfeitures

from the 500,000-reasons-to-try-this-endaround dept

A win for at least one resident -- and victim of shady forfeiture practices -- has been handed down by Utah's top court. Kyle Savely had $500,000 taken from him by Utah law enforcement during a traffic stop. No charges were filed and Savely was never arrested, but a dog told the Utah Highway Patrol it could search the vehicle and seize the cash, even though the search failed to produce any drugs. (h/t The Newspaper)

An early forfeiture reform initiative, voted into law by Utah residents in 2000, says the government must return forfeited property if no criminal charges are filed within 75 days. The Utah Highway Patrol apparently had no charges to file, but rather than return the money when Savely requested it back, it chose to hand it over to the DEA via equitable sharing. Equitable sharing with the feds allows state agencies to bypass more restrictive state laws and help themselves to 80% of whatever's seized.

The DEA pitched in, too, hoping for 20% of the seized cash, further demonstrating the perverse incentives of the federal forfeiture loophole. From the decision [PDF]:

On February 10, 2017, seventy-five days after UHP’s seizure, Mr. Savely filed a petition in state district court seeking the release of his property. In a hearing on February 21, 2017, the state district court ruled in favor of Mr. Savely, concluding that UHP was required by the Act to procure an order from a state district court that authorized UHP to release the seized cash to the DEA and, thus, that UHP had unlawfully transferred the funds. Additionally, the state district court concluded that UHP had failed to take one of the actions required by Utah Code section 24-4-104(1)(a) and therefore ordered UHP to return the funds to Mr. Savely.

UHP immediately stopped payment on the January 24, 2017 check sent to the DEA. In response, the DEA served UHP with a second federal seizure warrant on February 23, 2017, after which UHP requested that the state district court reconsider its initial ruling.

Savely challenged this move, claiming the state had jurisdiction over the seized cash and could not use equitable sharing to route around state law. The court agrees for the most part, but notes the initiative isn't the "model of clarity" and the government can present plausible arguments for federal jurisdiction over the cash, even with the lack of required charges at state level.

That being said, the court sides with Savely. It points to one clause of the law, along with its intent -- "to protect property owners" during forfeiture proceedings -- as evidence the state government (and its residents) were seeking to close the federal loophole that would have erased the protections it had enacted.

Importantly, the transfer provision expressly prohibits a district court from “authoriz[ing] the transfer of property to the federal government if the transfer would circumvent the protections of the Utah Constitution or of this chapter that would otherwise be available to the property owner.” UTAH CODE § 24-4-114(1)(d). This provision, along with the grant of in rem jurisdiction to the state district court over property held for forfeiture, ensures that the authority to seize and hold property for forfeiture under the Act is limited by the protections provided in the Act. This comports with the legislative intent and purpose of the Act.

The court concludes the state has jurisdiction over the seized cash, despite the DEA's belated involvement. As such, the cash must be returned to Savely because the state government failed to bring charges in 75 days.

A state district court has in rem jurisdiction over any property held for forfeiture under the Act. And property becomes property held for forfeiture, at the very least, when a seizing agency serves a notice of intent to seek forfeiture under the Act. Because Mr. Savely was provided with a notice of intent to seek forfeiture long before any federal seizure warrant was issued, we conclude that the state district court was the first to properly exercise in rem jurisdiction to the exclusion of any other court. Therefore, we reverse the state district court’s conclusion that it lacked in rem jurisdiction and remand for further proceedings consistent with this opinion.

"Consistent with this opinion" adds up this way: 1 seizure + 0 criminal charges = $500,000 returned to Savely. The intent of the state law is clear: protecting citizens whose property has been seized by the government. If the government can't find a reason to criminally charge the property's owner, the property has to be returned. Asking the feds to take over circumvents state protections.

Local law enforcement knows this. The law's effect was very noticeable. As Radley Balko notes in his post about Utah's back-and-forth forfeiture reform efforts, the elimination of federal forfeiture adoption hit local agencies right in the pocketbook.

The year before it passed in FY 2000, Utah received $226,524 from the federal Asset Forfeiture Fund (AFF). In FY 2002, that number plunged to $3,357. The very next year, it was $0.

Since then, things have been loosened up a bit by legislators, but the 2000 initiative still prevails 18 years later. Local cops can't use the federal government to launder forfeitures in exchange for a 20% cut. If the state seizes the property, it still has to bring criminal charges if it hopes to keep it. That's the way it should be. Fortunately, the unclear law is being interpreted by the state's highest court as a bulwark against government abuse. Closing the federal loophole and requiring criminal charges fulfills the intent of the law and makes it far less likely forfeiture programs will be abused.

Filed Under: asset forfeiture, civil asset forfeiture, dea, forfeiture, kyle savely, utah

Appeals Court Blocks DEA's Attempt To Bury Lawsuit Settlement Terms

from the you-serve-the-public,-remember? dept

The government wants secrecy just because and the Sixth Circuit Appeals Court isn't having it. The government entity requesting extra secrecy with zero justification is the DEA. And it's likely requesting it so other doctors it's abused won't come asking for similar settlements.

The specifics of the case trace back almost two decades. Two doctors -- both working for the Henderson County Community Hospital in Tennessee -- surrendered their prescription licenses to the DEA while working through their own chemical addictions. One doctor, Tom McDonald, surrendered his all the way back in 1999. The other doctor suing the DEA, John Woods, surrendered his to the DEA in 2012. Both were reinstated a few years later -- McDonald's in 2002 and Woods in 2014. Since that point, they've worked without incident at HCCH. (And prior to that, as well.)

Things changed in 2016 when the DEA showed up and ordered them to stop working until they'd obtained a waiver from the agency. This sudden enforcement effort was prompted by the addition of this clause to US code in 2014. In McDonald's case, there was 12 years of uninterrupted good behavior before the rule changed. It was Woods' more recent reinstatement that may have triggered this burst of regulatory activity. Whatever the case, it meant the two doctors were out of work until the DEA decided their years of service without abusing prescription pads meant something.

The doctors sued and, eventually, a settlement was agreed to. This is what the Sixth Circuit's short, pointed order [PDF] discusses. The DEA wanted the settlement sealed. In support of this argument, it offered non sequiturs. The judges don't like the DEA's quasi-arguments and say as much:

McDonald and Woods attached a copy of this agreement to their motion to dismiss the petition for review. The government in turn moved to keep the agreement under seal. We apply “a strong presumption in favor of openness as to court records.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (internal quotation marks omitted). The party seeking to seal a record document therefore must “analyze in detail” why the information in that document should stay secret.

The government does not even attempt to do that here. Rather than identify information too sensitive to remain public, the government argues that the agreement does not need to remain so—specifically because it binds only the parties and no rule required the parties to file it. That argument gets exactly backwards our operative presumption, which is that “[t]he public has a strong interest in obtaining the information contained in the court record.”

A case like this -- involving a settlement reached with the government after the DEA was hit with a restraining order against further enforcement -- is definitely in the public interest. The medical field requires a lot of education and ongoing training. Wiping out someone's livelihood because rules were changed years after the fact (at least in McDonald's case) to require DEA paperwork never needed prior to 2014 is the wrong way to handle regulatory matters.

The DEA had years of work history and two voluntary relinquishments as evidence these doctors could be trusted to mete out medical care and prescriptions. But it ignored all of that to do some "letter of the law" busywork. As the court points out, the public interest for those in the medical field is immense. Burying the settlement is burying information crucial to working doctors in similar situations.

That interest is particularly strong where the information pertains to an agency’s interpretation of a regulation. Other doctors would no doubt be interested to know that the DEA does not plan to treat them like it treated McDonald and Woods.

So, some desk jockey at the agency cross-ref'd a couple of databases post-rule change and agents headed out to make medical care worse by depriving hospitals and clinics of medical staff with clean track records (minus some missteps where the medical professionals were responsible enough to take themselves out of the prescription loop until their own addictions were under control). That's the Drug War being compounded by random enforcement, something that springs from a desire to look like you're making a difference but without having to make any real effort. Of course other doctors want to know how the DEA is going to handle stuff that wasn't a problem for decades, especially when they've made every effort to comply with massive amounts of regulation.

The DEA doesn't want people to know how to fight back against bureaucratic busybodying. That's the only reason it wanted the settlement buried. The problem was it couldn't come up with a plausible reason to do so when forced to argue it in court.

Filed Under: 6th circuit, dea, john woods, prescriptions, settlement, tennessee, tom mcdonald

Obtained Documents Show The DEA Sold Compromised Phones To Suspected Drug Dealers

from the Blackberry-once-again-at-the-center-of-government-subterfuge dept

Human Rights Watch -- which delivered info on law enforcement's "parallel construction" habit earlier this year -- is back with a bombshell. Court documents obtained by the group show the DEA sold compromised devices to drug dealers during an investigation into a Mexico-to-Canada trafficking operation.

Human Rights Watch has identified two forms of this technique that the Drug Enforcement Administration (DEA) has used or, evidence suggests, has contemplated using. One involved the undercover sale of BlackBerry devices whose individual encryption keys the DEA possessed, enabling the agency to decode messages sent and received by suspects. The second, as described in a previously unreported internal email belonging to the surveillance software company Hacking Team, may have entailed installing monitoring software on a significant number of phones before attempting to put them into suspects’ hands.

The DEA broke ranks (at least publicly) with Italy's exploit/malware vendor Hacking Team after it was (ironically) hacked and its internal communications fed to Wikileaks. That the DEA would purchase exploits and hacking tools wasn't surprising. Neither was the fact that these tools had never been discussed in a courtroom setting. (See above re: parallel construction.) What was more disappointing than surprising was that a US government entity would choose to do business with a company caught selling hacking tools to UN-blacklisted countries.

The big news here is the compromised phones. The DEA held encryption keys for phones sold to drug dealers in order to intercept communications like texts and email. The affidavit [PDF] obtained by Human Rights Watch raises cart/horse questions about the legality of the interceptions. While wiretap warrants were obtained (and quite easily -- these were routed through Southern California's particularly DEA-friendly courtrooms), the narrative in the sworn statements doesn't state clearly whether these warrants were obtained before the interceptions began. In fact, one statement made in the affidavit seems to indicate the interceptions from the compromised phones were used to buttress claims in warrant requests. From the affidavit:

[O]n April 10, 2011, [suspect John] Krokos in Mexico contacted SA Burkdoll and asked for another EBD [encrypted Blackberry device]. The next day, on April 11, 2011, SA Burkdoll, in an undercover capacity, provided [suspect Ismael] Tomatani with a new EBD for $1,000 in the parking lot of a Home Depot store in West Hills, California. Two days later, Tomatani began communicating with [suspect Eduardo] Olivares over the EBD. A variety of relatively plain drug communications were intercepted over Tomatani's EBD as he communicated with Olivares on the new EBD.

[...]

I am aware that, on May 16, 2011, signed an order for the wiretap interception of both the EBD and cellular telephone being used by Olivares.

The wiretap order to intercept communications came nearly a month after the interception began. And that warrant targeted only the communications originating from Olivares' devices. Nothing in the affidavit narrative says anything about obtaining wiretap warrants for the EBDs supplied to Tomatani and Krokos.

There's also nothing in the paperwork suggesting the plan to sell suspects compromised devices was ever run past a judge. Considering the sole purpose of these devices was to facilitate the interception of communications, you'd think judicial approval would have been sought to ensure the collected evidence would survive a suppression motion. (There's also discussion of the DEA repeatedly using "slap on" GPS tracking devices to track suspects' movement without seeking warrants first. Of course, some of this happened before the Supreme Court (sort of) ruled law enforcement should seek warrants before placing tracking devices on vehicles, but the practice appears to have continued past the 2012 ruling.)

Another, longer affidavit [PDF] from SA Burkdoll (the agent that sold the drug dealers the compromised phones) suggests the agency had been seeking wiretap warrants for a number of devices and landlines since 2010, which would be prior to the sale described in the other affidavit.

Even if the wiretap warrants preceeded the interceptions, the delivery of compromised phones to criminal suspects is still a questionable tactic. For one, nothing suggests this plan had been run by anyone outside of the DEA to vet the tactic for legality or constitutionality.

Second, this isn't the sort of thing you want investigative agencies to do regularly. There are all sort of side effects and the omnipresent mission creep problem to be considered.

The US government’s policies for secretly distributing devices it has compromised by obtaining encryption keys or installing surveillance tools largely remain unknown. Documents the Federal Bureau of Investigation (FBI) disclosed in 2011 mention seeking a warrant explicitly for a “two-step” process of installing a spying mechanism on a US computer and then carrying out surveillance, but it is unclear whether the DEA has adopted similar standard procedures for the measures it has used or considered.

Under international human rights law, all surveillance methods that interfere with privacy should be authorized by clear, publicly available laws; be subject to approval by a court or other independent body for specific purposes such as protecting public safety or national security; and be proportionate to those aims. Undermining the security of devices to conduct surveillance could have long-term repercussions for privacy, including for people other than the original intended surveillance targets, making it all the more important for the Justice Department to disclose its policies regarding these tactics.

This isn't to say the government should never engage in these tactics. Sometimes it's necessary. But subterfuge involving compromised devices and muddy wiretap warrant timelines isn't the way to do it.The agency has shown it's more than willing to launder its tainted evidence -- both to hide its true origin from defendants and to hide its methods from the rest of the world. The agency's past actions indicate respect for people's rights (along with their personal property/lives) is pretty low on its list of priorities. So, if further revelations show a lack of candor -- either in court or to its oversight -- it won't surprise anyone.

Filed Under: backdoors, dea, drug dealers, encryption, phones
Companies: hacking team

Court Says Gov't Can't Claim Testimony That Undermines Its Criminal Case Is 'Privileged' When It's Used It In Other Cases

from the decks-undergo-destacking dept

The government rarely likes to play fair in court. This is why we have the (repeatedly-violated) Brady rule (which forces the production of exonerative evidence) and other precedential decisions to guide the government towards treating defendants the way the Constitution wants them to be treated, rather than the way the government would prefer to treat them.

In a case involving drug charges predicated on the distribution of synthetic marijuana, the government tried to keep testimony of a DEA chemist out of the hands of two charged defendants. The Fourth Circuit Court of Appeals says this isn't OK in a decision [PDF] that gets very weedy (why yes, pun intended) pretty quickly. That's the nature of synthetics -- and the nature of DEA determinations on controlled substances analogues.

The two proprietors of Zencense -- Charles Ritchie and Benjamin Galecki -- decided to manufacture and distribute their own blend of spice, using XLR-11 and UR-144 as active ingredients. The DEA raided Zencense's Las Vegas production facility, charging the pair with conspiracy to distribute controlled substance analogues.

The government alleges both synthetics are analogues of JWH-018, which is a controlled substance. Unfortunately, its own chemist disagrees with this assertion.

The DEA’s determination that a substance is an analogue is made by its Drug and Chemical Evaluation Section (DRE). During the process of determining if UR-144 is an analogue, the DRE solicited the views of Dr. Arthur Berrier, a Senior Research Chemist with the DEA’s Office of Forensic Sciences. Dr. Berrier concluded that UR-144 is not substantially similar in chemical structure to JWH-018, which would mean that it is not outlawed by the Analogue Act.

This means the distribution was only half as illegal as the government asserts. Or, possibly, not illegal at all, as this footnote portrays the government's assertions.

All of the expert testimony in this case agreed that XLR-11 and UR-144 are indistinguishable, and the Government treats them as the same substance.

If they're similar, and UR-144 isn't "substantially similar" to controlled substance JWH-018, the government doesn't have much of case left to prosecute. The charges hinge on the defendants' knowledge that the substances they manufactured were illegal analogues. But the DEA's chemist is on record stating that the substance Zencense emulated isn't actually a controlled substance.

Upon learning this, the defendants sought to obtain the chemist's testimony. The government refused their request.

The Government opposed the motion to compel, arguing that “some of the information sought [was] part of the deliberative process and is therefore privileged.” (J.A. 673). The district court denied the Defendants’ motion, “find[ing] that the denial of this Touhy request is appropriate as it would violate the Deliberative Process Privilege of the Drug Enforcement Agency to grant the subpoena”.

As the court points out, this is a ridiculous position for the government to take. While the government made a proper claim of privilege, there's nothing privileged about the DEA chemist's assertions.

Applying this framework, we readily conclude that the district court erred in concluding that the deliberative process privilege applies because, to the extent the privilege covers Dr. Berrier, the Government has waived any reliance on it. The Government has, by its own admission, provided Dr. Berrier’s opinion as Brady material in criminal cases involving XLR-11 and UR-144. See United States v. $177,844.68 in U.S. Currency, 2015 WL 4227948, *3 (D. Nev. 2015) (cataloguing cases). Moreover, Dr. Berrier recently testified in open court pursuant to a motion to compel in an analogue case involving the distribution of UR-144. See United States v. Broombaugh, 2017 WL 2734636 (D. Kan. 2017) (ordering the unsealing of Dr. Berrier’s testimony). Finally, Dr. Berrier’s opinion that UR-144 is not an analogue of JWH-018 is freely available online. See Federal Judicial Center, Litigating Synthetic Drug Cases, http://fln.fd.org/files/training/April%202015%20Handout.pdf, pp. 37-41 (last visited May 16, 2018). Therefore, Dr. Berrier’s opinion was accessible to everyone but the jurors in this case.

As the court notes, compelling testimony is limited to that which is "favorable" and "material" to the defense. Clearly, Dr. Berrier's testimony is favorable, as it shows the analogue produced by the defendants was not identical to a controlled substance. As for the materiality of the testimony, the appeals court will let the district court decide. It seems extremely material, as the government's case rests on its accusations of manufacture of a controlled substance analogue, which is at odds with its own expert's assertions.

Unfortunately, this isn't the end of the road for the defendants. Having already faced two trials (one mistrial, one resolved with an Allen charge delivered to a deadlocked jury), the convictions are vacated and the government now has a chance to potentially put the defendants on trial one more time. Even when the government apparently has it wrong, it's still given multiple chances to obtain a conviction.

Filed Under: dea, evidence, government, privilege

Court Moves Business Owner One Step Closer To Getting Paid Back For Vehicle DEA Destroyed In A Failed Drug Sting

from the Motion-To-Unfuck-The-Situation-granted dept

Almost seven years ago, DEA agents borrowed a truck (and an employee) from Craig Thomas Expeditors. Craig Patty, proprietor and employer of Lawrence Chapa, had no idea this was happening. The DEA never approached Patty and, for all he knew, Chapa was taking the truck down to Houston for some service. This was all a ruse. The DEA loaded Patty's truck with marijuana (and his driver) and went down to Houston to engage in a drug sting.

This wasn't the first sting the DEA had deployed using Patty's truck and his driver. But it was the last. Instead of a controlled purchase followed by several arrests, the DEA ran into an ambush instead. Patty's truck was riddled with bullets, as was Patty's driver. In the middle of it all, a plainclothes cop from one Texas agency was shot by a plainclothes cop employed by another.

After this debacle, Patty was finally informed that his truck and employee had been part of a tragic DEA misfire. He was also informed that the federal government would not be shelling out a single cent to repair the $100,000 worth of damage to the truck. (It said even less about the cost of the life it had taken from Patty's driver.) The DEA said it did not have to pay anything for the damage because it occurred during a law enforcement operation. Patty's insurance company said the same thing.

Patty sued the DEA. This went nowhere. The government argued -- successfully -- that clandestine operations like drug stings don't require notification of citizens whose private property is put to use. It also argued it was immune from liability because undercover operations are more important than protecting assets owned by law-abiding citizens. The court agreed and tossed Patty's case.

This appeared to be the end of it. But I'm happy to report that's not the case. Nearly seven years has elapsed since the DEA destroyed Patty's truck, but a federal judge for the Federal Claims court has said Patty can move ahead with his lawsuit seeking compensation for his "borrowed" truck. (via FourthAmendment.com)

The denial of the government's motion to dismiss [PDF] is pretty weedy, but basically comes down to competing interpretations of Patty's allegations. The government argued Patty's complaint alleged illegal actions by the DEA, which would mean this court lacked jurisdiction over the case. The judge points out Patty's complaint doesn't actually do that. What Patty is alleging is something different: a violation of the Takings Clause. The government took property of Patty's without permission and failed to compensate him for the damage done to it.

Defendant relies in part on the fact that plaintiffs assert that the agency’s use of their truck was without permission and an unjustified risk to private property and to the lives of those involved in the LLC. Pls.’ Compl. ¶ ¶ 2, 17, 18, 21. But an assertion of lack of consent to the use is not the same as an assertion of illegality. More importantly, it is not inconsistent with the assertion of a taking. Condemnation actions, whether direct or implied, typically are done over the property owner’s objection.

This changes the legal contours, much to the presumed dismay of the government. It's no longer about apparent theft, but rather the government running roughshod over a citizen's property rights. The government tried to argue it wasn't a taking per se, but rather a form of forfeiture. It didn't say as much in its arguments, but all of its supporting citations dealt with forfeitures in criminal cases or seized evidence. As the court points out, the supporting case law cited by the government does not address the issue at hand.

In each of these cases, the property was evidence in an investigation or the object of the law enforcement action. In none of them did the government simply seize property as a convenience to the government in pursuing unrelated law enforcement.

It then goes on to point out exactly why it won't let the government get away with its false equation.

If defendant’s position is the law, the police power would swallow private property whole. Neither plaintiffs nor their truck were the subject of an investigation, their truck did not belong to a person who was the subject of an investigation, nor was it related, before the fact, to any violation of regulation or statute. Plaintiffs emphasize that neither the LCC nor Mr. Patty had any connection to or dealings with criminal outfits in the state of Texas and that, had it not been for their driver working with the DEA, their truck would have never been involved in the operation. The government instead chose to use plaintiffs’ property as a tool to stage a controlled drug delivery.

Then it goes further, calling out the government for its refusal to admit it screwed a law-abiding citizen out of $100,000+ worth of property -- something the government has done repeatedly in the past and been held accountable for.

Plaintiffs’ claim bears striking similarities to cases in which the government has chosen simply to appropriate private property to secure a benefit for the public. Here, the assertion is that law enforcement officials used private property as a resource for an operation despite lack of consent of the property owner. Using the dichotomy of whether the government action prevented harm to the public or secured a benefit to the public, the government’s action falls within the latter category: it did not seize the truck to prevent a harm to the public caused by or related to the truck or anyone associated with it, but rather the agency chose to use the truck as a resource in ridding the area of controlled substances and criminal activity. It could just as easily have rented a truck and furnished it to Mr. Chapa. Plaintiffs’ truck was not evidence in a criminal prosecution, involved in a police investigation, seized pursuant to criminal laws, or subject to forfeiture proceedings. If what the DEA is alleged to have done here were not compensable, then presumably it could have seized a fleet of trucks or an airplane for the same use.

This moves Patty one step closer for being repaid for the DEA's use of his vehicle. Sure, it's not the DEA's fault its drug sting fell apart and resulted in vehicle damage and the loss of life. But as the court points out, the DEA could have pursued a sting operation without using a private citizen's vehicle. It had plenty of options that wouldn't have put it in the position it's in today. But it chose to do it the easy way, which is now -- seven years after the fact -- turning into the hard way. The DEA worked harder, not smarter. Hopefully, this business owner won't remain screwed for much longer.

Filed Under: craig patty, craig thomas, dea, lawrence chapa, sting
Companies: craig thomas expeditors