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

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

I guess if you're going to engage in a stupid, neverending "war," the most honest way to approach it is stupidly.
Sixteen kilos of methamphetamine the Border Patrol found in an SUV was struck from the record by a federal judge because the agents didn't get the driver's consent to X-ray the vehicle.
The CBP had two suspects exactly where it wanted them: detained by agents at a checkpoint. And the longer they were detained, the more nervous they got. Despite a search of the interior turning up nothing and the drug-sniffing dogs failing to alert, the CBP officers were pretty sure they had just captured two smugglers. So, the agents routed the vehicle through their backscatter X-ray scanner, skipping a step in the process.
Agent Buchanan testified that he did not rely on probable cause for the backscatter search, but rather on consent to search given by Defendants. He testified, “we always ask for consent for the backscatter . . . unless we’ve already found something in the vehicle.” He testified that he typically has another agent get consent to search the vehicle with the backscatter. Agent Buchanan was unable to identify the agent he asked to get consent from the Defendants and was unable to confirm that such consent was requested.
So, Buchanan was unable to come up with any evidence or probable cause, but decided to perform the backscatter anyway, despite his doing so being completely contradicted by his portrayal of the CBP's standard m.o. This wasn't the only contradictory statement in the CBP's testimony.
Agent Valdez, who remained in the secondary waiting area with the Defendants, testified that he was present when Defendants gave consent to the backscatter search. However, he was unable to identify the agent who requested consent, how the request was phrased, and how the Defendants replied.
Valdez, despite being "present," couldn't actually say whether the defendants had given consent (or who to), but went ahead and told the court that the two men had consented.

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

The court, on its way to dismissing as evidence the 16 kilos of meth obtained that day, points out the government's contradictory statements, as well as its inability to find anyone to corroborate the multiple claims that permission for the search had been granted.
Defendants argue that Border Patrol agents did not request their consent to search the vehicle with a backscatter. Agent Buchanan testified that he asked another Border Patrol agent to obtain that consent, but he was unable to identify the agent and was unable to confirm that the agent requested consent. Although Agent Valdez testified that he was present when Defendants gave consent for the backscatter search, he was unable to recall which agent requested consent and what was said by the agent and the Defendants. More importantly, the Government failed to identify and to offer the testimony of the agent who purportedly sought and obtained the consent.
And away goes 16 kilos of evidence, along with the bust itself, most likely. Kind of hard to prove the defendants were smuggling drugs when you can't introduce the smuggled drugs in court. Everyone at this particular CBP checkpoint apparently felt someone else would handle the consent issue. And even if the agents had been rebuffed, it's not as though the detainees were free to go. A warrant could have been acquired, most likely with minimal effort.

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

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


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


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

    A loss of respect

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

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

    End the silly war on terror and a waste of taxpayer dollars which could instead be re-invested in enriching the infrastructure and economy. Stop the outward flow of money to foreign crime rings and instead capture it locally. In all aspects, taking a more reasoned, historically informed, adaptive to matters of fact approach is the true solution to the loss of respect in all directions.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 19 Feb 2015 @ 1:32am

      Re: A loss of respect

      Have a seat while you wait. Just legalizing marijuana was a steep uphill battle so one can just imagine the rest. And even if it is legal, there are so many restrictions on who, where, how and how much one can produce marijuana that the entire purpose of making the thing legal and tackle the drug cartels goes down the drain.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Feb 2015 @ 8:02am

        Re: Re: A loss of respect

        ...Just legalizing marijuana was a steep uphill battle...

        That's been at the state level. It's still illegal at the federal level!

        reply to this | link to this | view in chronology ]

    • icon
      OldMugwump (profile), 19 Feb 2015 @ 6:39am

      Re: A loss of respect

      I'm surprised (and somewhat impressed) that the CBP didn't find an agent willing to simply lie to the court and claim they obtained consent for the X ray.

      It's not like courts demand any evidence of consent, like a video recording or a signature on a form.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Feb 2015 @ 10:17pm

    The Skinny, Happy, Horny Drug?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Feb 2015 @ 10:40am

      Re:

      Right now I can imagine you twirling the stuff around your finger saying "Precious" and looking like Meth Gollum.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Feb 2015 @ 12:35am

    What happened to the 16 kilos of drugs? The alleged dealers can't really ask for it back even though it's their property. Destroyed or locked up somewhere? Seems to be that if you want to get hold of drugs this might be a way to do it. Make it end up in a limbo state, wait a while a then make it disappear.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Feb 2015 @ 2:44am

      Re:

      "Make it end up in a limbo state, wait a while a then make it disappear."

      I think there is a joke about that...
      16 kilos were found in the truck. The whole 10 kilos are on the way to the police station. All of the 5 kilos were registered in the evidence room and later the court was presented the evidence of 1 kilo.

      reply to this | link to this | view in chronology ]

    • icon
      Manabi (profile), 19 Feb 2015 @ 2:52am

      Re:

      It'll be destroyed as contraband. They aren't allowed to give it back even in cases like this because it's illegal stuff.

      Or at least that's what is supposed to happen. Given the incompetence on display here who knows what will actually happen.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Feb 2015 @ 1:34am

    It is clear from the testimony of both agents that they had been affected by the meth fumes. That's why they don't remember a thing and it's also your probable cause, right there.
    Even the dog was so high it couldn't sniff a thing on the car!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 19 Feb 2015 @ 1:35am

    One small step in the right direction

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

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

    Now, if more courts, preferably all of them, were to do so, maybe, just maybe, the government and police would actually start to follow the laws and rules regarding searches and seizures of evidence, instead of just ignoring them whenever they 'get in the way'.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Feb 2015 @ 6:54am

      Re: One small step in the right direction

      A better approach that might put an end to such might to put the agents in jail for the illegal search.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 19 Feb 2015 @ 1:42am

    Well, at least CBP will have some meth-driven fun for quite a while with 16 kilos even if the suspects managed to get away. /derp

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Feb 2015 @ 1:44am

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

    Sure its bad to search an entire house for no reason but in this case there is no reason to complain. If they find nothing, sue them or even dump the cops to deterr them from doing it wrong. With a catch like this the cop would deserve a little raise.

    reply to this | link to this | view in chronology ]

  • icon
    Bamboo Harvester (profile), 19 Feb 2015 @ 1:58am

    Interesting, but...

    ...where's the Tech?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 19 Feb 2015 @ 2:07am

      Re: Interesting, but...

      Other than the search via backscatter machine?

      Also, why do people keep asking this? Techdirt is primarily a tech focused blog, but the different writers for TD will also include articles that they find interesting from time to time.

      reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 19 Feb 2015 @ 3:30am

        Re: Re: Interesting, but...

        That's what I think every time I see some clueless person ask "where's the tech?".

        I'll start asking what/where is this Divine Law, set in stone tablets by Divine Lightning that say people running a site must always write what the ones reading expect.

        reply to this | link to this | view in chronology ]

      • icon
        Bamboo Harvester (profile), 19 Feb 2015 @ 5:11am

        Re: Re: Interesting, but...

        ...where's the Tech?

        "Other than the search via backscatter machine?"

        So we should expect more articles about DWI's because they use an electronic breathalyzer to test for BAC?

        "Also, why do people keep asking this? Techdirt is primarily a tech focused blog, but the different writers for TD will also include articles that they find interesting from time to time."

        Because if we want Tech news, we read TechDirt. If we want to hear about some idiot murderer taking a selfie of himself with his victim, standard news outlets cover it just fine.

        I don't expect to see an in-depth story about how Cisco routers can be compromised on MSNBC or FOX news. Conversely, I also don't expect to see a story about domestic abuse on TechDirt unless there's a Tech connection (other than that the house it occurred in is wired for electrical service).

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Feb 2015 @ 5:55am

          Re: Re: Re: Interesting, but...

          "Because if we want Tech news, we read TechDirt."

          Well, there's your issue right there.

          The site is called techdirt.com because ConstitutionRapeIntellectualPropertyBullShitAndTechDirt.com is a bit too long for a domain name.

          reply to this | link to this | view in chronology ]

        • identicon
          Baron von Robber, 19 Feb 2015 @ 7:05am

          Re: Re: Re: Interesting, but...

          Gee, maybe you should remove this site from your bookmarks and possibly go visit one of the other 1,000,000,000+ sites that might fit your expectations.

          reply to this | link to this | view in chronology ]

        • icon
          Ninja (profile), 19 Feb 2015 @ 7:06am

          Re: Re: Re: Interesting, but...

          Skip the ones you feel that miss the tech then. Feeling entitled aren't we?

          reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 19 Feb 2015 @ 7:40am

          Re: Re: Re: Interesting, but...

          Because if we want Tech news, we read TechDirt. If we want to hear about some idiot murderer taking a selfie of himself with his victim, standard news outlets cover it just fine.

          I know what you mean. I keep going to The Onion looking for stories about Vidalias, Bermudas, Scallions and other yummy onions and all I see are humorous articles about other stuff.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Feb 2015 @ 9:28am

          Re: Re: Re: Interesting, but...

          One way to look at it is that law enforcement agencies are a complex distributed system with a mix of closed/open source subsystems rife with of bugs and potential exploits.

          reply to this | link to this | view in chronology ]

  • identicon
    Capt ICE Enforcer, 19 Feb 2015 @ 2:04am

    Charge the Meth

    At least the government can take the meth to court,

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Feb 2015 @ 3:20am

    Someone called Saul...

    reply to this | link to this | view in chronology ]

  • icon
    cypherspace (profile), 19 Feb 2015 @ 3:57am

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

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Feb 2015 @ 4:37am

    express with consent

    What if the set up a lane at the border where if you use it you have implicitly granted consent for the use of techniques like backscatter xrays. I wonder if they created an 'express with consent' lane at the border if people would use it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Feb 2015 @ 7:07am

      Re: express with consent

      Too much choice. Make 10 lanes, 9 are express lanes and 1 is the no-consent lane. Which is open on monday... between 9 and 9:30... once a month.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Feb 2015 @ 6:38am

    Ha!

    The targeted advertising on my page is hawking Border Patrol jobs.

    reply to this | link to this | view in chronology ]

  • icon
    scotts13 (profile), 19 Feb 2015 @ 7:03am

    I'd like to see the case proceed

    I assume the evidence collected couldn't be produced, mentioned, or discussed?

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

    Hilarious.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 19 Feb 2015 @ 7:09am

    If they had just followed the laws they had sworn under oath to protect they could have gotten a few more drug runners off the streets

    reply to this | link to this | view in chronology ]

  • icon
    connermac725 (profile), 19 Feb 2015 @ 8:52am

    Half assed

    another story of a complete lack of any procedure being followed and yet they will not be disciplined in any way for their screw up
    being a cop these days is the perfect job no matter how bad you are you still have a job

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 19 Feb 2015 @ 4:13pm

    Sharing Intel

    Probable scenario.

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

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

    After all, these were known bad guys right.

    ---

    reply to this | link to this | view in chronology ]


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