By now you've probably heard the story of David Eckert. He's the New Mexico man who was stopped by police, detained based on a suspicion he was hiding drugs in his rectum, and subjected to increasingly intrusive anal probing and eventually sedation and a colonoscopy. You might have read about him at Simple Justice or Defending People or BoingBoing or Techdirt or Reason or any of the other places that reported on the ghastly episode.

I waited to write about it until I could get a copy of the search warrant affidavit — helpfully provided by my friend Kevin Underhill of the absolutely essential legal blog Lowering the Bar — so that I could address this question: what quantum of proof is required in New Mexico for the police and compliant doctors to rape and torture a man?

What Police And Doctors Did To David Eckert

I use the terms "rape" and "torture" quite deliberately.

Mr. Eckert released medical records to local reporters, who reviewed them and noted that the following things were done to him by doctors and staff at Gila Regional Medical Center:

1. Eckert's abdominal area was x-rayed; no narcotics were found. 2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found. 3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found. 4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 7. Doctors then x-rayed Eckert again; no narcotics were found. 8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.

Allow me to repeat: no narcotics were ever found during Mr. Eckert's encounter with police and doctors.

Throughout this ordeal, Eckert protested and never gave doctors at the Gila Regional Medical Center consent to perform any of these medical procedures.

Section 30-9-10 of the statutes of New Mexico provide:

A. Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission. B. Criminal sexual penetration does not include medically indicated procedures. C. Criminal sexual penetration in the first degree consists of all sexual penetration perpetrated: (1) on a child under thirteen years of age; or (2) by the use of force or coercion that results in great bodily harm or great mental anguish to the victim. Whoever commits criminal sexual penetration in the first degree is guilty of a first degree felony.

Police officers successfully encouraged doctors to penetrate David Eckert's anus repeatedly, eventually sedating him so they could do it with a colonoscopy device. The procedure was not medically indicated; it was indicated by our nation's War on Drugs.

So why are the police officers from the City of Deming, New Mexico Police Department and doctors and staff from Gila Regional Medical Center who committed these acts upon David Eckert not charged as rapists?

Because they have excuses — the color of law, and a warrant.

How The Police Secured A Warrant To Anally Probe David Eckert

If you want David Eckert's version of what happened to him, you can read the federal complaint he filed against the City of Deming, New Mexico; Deming Police Officers Bobby Orosco, Robert Chavez, and Officer Hernandez; Hildalgo County and Hidalgo County Sheriff Officers David Arrendondo, Robert Rodriguez, and Patrick Green; Deputy District Attorney Daniel Dougherty; and Gila Regional Medical Center and doctors Robert Wilcox and Okay H. Odocha.

But let's not just take his word for it. Let's consider the word of the law enforcement officers for what justified them to bring Mr. Eckert to the Gila Regional Medical Center for doctors to go spelunking in his innards, eventually sedating him so they could so so.

Officer Robert Chavez of the Deming Police Department sought the search warrant. You can read his entire search warrant application here. This is what he sought judicial leave to search:

A brown 1998 Dodge displaying New Mexico JOS-3ll with a YIN #3B7KC26Z9WM274255 and the person of David W. Eckert with a date of birth of 08/0811959, to include but not limited to his anal cavity.

Before he applied to a judge for a warrant, Officer Chavez asked Deputy District Attorney Daniel T. Dougherty for permission. Asking a Deputy DA for permission, in theory, prevents cops from seeking improper or deficient warrants.

In theory.

Officer Chavez took the search warrant to a judge.1. The following is the sum total of what he told the judge to justify what followed:

I. I Officer Robert Chavez was contacted by Sgt Detective Orosco in reference to a brown 1998 Dodge pick- up truck that failed to stop at the posted stop sign at the intersection of Deming Del-Sol and Pine Street. 2. I was traveling East bound on Pine Street and did locate the brown 1998 Dodge pick-up traveling West bound on Pine Street from Deming del-Sol. 3. I conducted a traffic stop with the brown 1998 Dodge pick-up displaying New Mexico JGS-31l with a VIN#3B7KC26Z9WM2742SS in the parking lot of 1021 E. Pine Street (Wal-Mart) parking lot. 4. I approached the driver who was later identified as David W. Eckert and informed him for the reason for the stop. 5. While speaking with Mr. Eckert I did notice that he was avoiding eye contact with me as I asked him for his driver's license, registration and proof of insurance. 6. As Mr. Eckert handed me the documents that were requested I did notice his left hand began to shake at which time I had Mr. Eckert step out of the vehicle. Once outside of the vehicle Mr. Eckert was asked if he had any weapons or anything else that might harm me which he stated "no". 7. I then conducted a Terry Pat Down on Mr. Eckert's person to search for any weapons which none were found. 8. While Mr. Eckert was standing outside of the vehicle I did notice his posture to be erect and he kept his legs together. A short time later I informed Mr. Eckert that a uniformed patrol Officer was coming to issue him a citation for the stop sign violation. 9. Officer Villegas did arrive and issued Mr. Eckert his citation for stop sign violation. 10. Mr. Eckert was then informed that he was free to go. 11. As Mr. Eckert turned to walk back towards his vehicle, I asked him for verbal consent to search his vehicle for any illegal narcotics andlor weapons at that time he did give consent. 12. I then asked Mr. Eckert if I could search his person for any illegal narcotics and/or weapons. At that time he stated that he had a problem with me searching his person. 13. I then informed Mr. Eckert that an open air search was going to be conducted on the vehicle and reminded him that he had given verbal consent to search his vehicle as well. 14. Hidalgo CountyK-9 Officer walked his K-9 around the vehicle which the K-9 alerted to the driver's side of the vehicle. A short time later the K-9 made entry into the cab of the vehicle and once again alerted to the driver's side seat. 15. Mr. Eckert was then informed of the K -9 alerting to the seat and was informed that a search warrant was going to be obtained. Hidalgo County K-9 Officer did inform me that he had dealt with Mr. Eckert on a previous case and stated that Mr. Eckert was known to insert drugs into his anal cavity and had been caught in Hidalgo County with drugs in his anal cavity. 16. Mr. Eckert was then placed into investigated detention and was transported to the Deming Police Department. 17. Mr. Eckert's vehicle was tagged for evidence and was later transferred to the Deming Police Department's impound lot awaiting a search warrant. 18. At approximately 140 I hrs~ I contacted DDA Dougherty and informed of the incident. DDA Dougherty did approve pursuit of a search warrant for Mr. Eckert's vehicle and also for Mr. Eckert's person to include Mr. Eckert's anal cavity.

That's it. The factors that allegedly justify police intrusion into David Eckert's anus are:

That his hands were shaking and he avoided eye contact during a traffic stop;

He refused to consent to a search of his person;

He stood erect with his legs together;

No drugs were found in his car or in a pat-down of him (police pat-downs for weapons often turn up drugs, which mysteriously feel like dangerous weapons when touched by police, or which are immediately identifiable as drugs when touched by police);

A drug dog (with no information given about the dog's training or qualifications or success rate) "alerted" to his car seat (though no drugs were found in his car); and

An unidentified Hidalgo County K-9 officer asserted, without any specificity, that Eckert had previously hidden drugs in his anus.

That's all. It really comes down to three things: (1) subjective officer impressions that Eckert looked nervous, (2) a dog alerting on his seat, and (3) an unnamed cop making an unspecific claim that he had previously hidden drugs in his anus.

The first factor is smoke and mirrors. It is increasingly clear in America that a reasonable person should be fearful during an encounter with police, who can generally shoot you (or your dog) with probable impunity, and who, it appears, can arrange for you to be systematically anally raped if the mood strikes them. My hands would shake too.

The second factor — the dog alert — has its own problems, but at any rate does not connect drugs to Mr. Eckert's anus. The third factor is effectively an anonymous tip. The affiant, Officer Chavez, does not identify the officer, explain the basis for the officer's knowledge, or offer any details about the alleged instances in which drugs were found in Mr. Eckert's anus. Anonymous tips must be corroborated to support probable cause, and this effectively anonymous tip isn't.

Mr. Eckert asserts that drugs were never found in his anus by any law enforcement agency. If true, that suggests someone lied – the K-9 officer who allegedly told Officer Chavez that, or Officer Chavez. A warrant premised on material false information is invalid. In deciding whether false information was provided to the court to secure the warrant, consider this: the Hidalgo County K-9 officer's report on the incident here doesn't mention any such knowledge about Eckert and doesn't say he conveyed any such information to Officer Chavez. Do you think that would have made it into his report if he had? [Edited to add: A sharp-eyed commenter points out that Hidalgo County Officer Orozco says on page four of this report that he informed Chavez that Eckert had a drug history — but once again, there is a very glaring absence of any statement that he knew that Eckert had hidden drugs in his rectum.]

You can read Officer Chavez' reports of the incident here and here.

By the way, Eckert has filed a motion for partial summary judgment on some issues, in which he asserts that the dog in question "was not certified and had no credentials."

What Should Terrify Us About This

Orin Kerr is a Fourth Amendment expert. Yesterday at the Volokh Conspiracy — without the benefit of the search warrant yet, as he emphasized — he analyzed the search. As he explained, such an intrusive internal search required a higher level of proof and justification:

The key case is Winston v. Lee, 470 U.S. 753 (1985), which expressly considered when the government can get a warrant to perform surgery on a suspect for evidence in their body. Under Lee, the court must conduct a balancing of the overall invasiveness of the surgical measures as compared to the need for evidence to say whether a warrant can be used to allow the surgical technique. On one hand, withdrawing blood to test it for alcohol in a DUI case is reasonable, and is allowed. On the other hand, dangerous surgery to extract a bullet lodged under a suspect’s collarbone was unreasonable when the bullet was of relatively low evidentiary value.

Prof. Kerr didn't opine on probable cause because he didn't have the warrant yet. But Prof. Kerr concludes that the intrusiveness here — a series of anal intrusions culminating in sedation and a colonoscopy — is not justified under that balancing test to secure drugs that a suspect might hide in his anus. I note that Eckert argues in the complaint that the warrant is invalid because it did not specify the level of surgical intrusion permitted; he cites a case that supports that proposition but also establishes that police officers might be able to rely on a "good faith" defense that the warrant is valid because of their good faith belief that it was valid. Yes, that is a thing.

That is to say a warrant, like the one at issue, that authorizes a medical procedure search of a specific area of the body but does not prescribe any off-limits procedures will be subject to good faith unless the police misled the magistrate, the magistrate abandoned her judicial role, or the warrant so clearly lacked probable cause.

Even though they didn't find drugs — so the admissibility of evidence is not at issue — their reliance on a judge will be a defense.

So: these cops got a warrant that vaguely allowed a search in David Eckert's anus for drugs. Even though searches found nothing, the cops and doctors continued to escalate to steadily more invasive procedures into David Eckert's body to find drugs. Yet, under the "good faith" exception, their reliance on the warrant might be valid if the warrant was valid. Moreover, as Prof. Kerr explains, the cops might be able to rely on the qualified immunity that government employees tend to enjoy when they do things like subject us to involuntary anal probing.

Some people are citing this incident for the proposition that it is terrifying that police officers and doctors would break the law and violate a suspect's rights. I submit there is something far more terrifying about it: the prospect that a court might find that Mr. Eckert's rights weren't violated at all, and that he has no recourse for a team of cops and doctors raping and torturing him.

What's terrifying is that the warrant requirement is supposed to protect our rights from overzealous cops, but here a judge approved a warrant to probe a man anally premised on fluff and a tip from an anonymous cop.

What's terrifying is that lawyers are supposed to guide cops in the law, but a Deputy DA approved this warrant.

What's terrifying is that though the warrant is extraordinarily flimsy, there's a decent chance a judge might find it sufficient. That's because the judiciary has been steadily ground down by decades of law-and-order thin-blue-line rhetoric and by the purported imperatives of the Great War on Drugs, and judges routinely shrug and accept transparently bogus police speculation and awful warrants.

What's terrifying is that a judge who has bought the government's narrative may, employing the balancing test Prof. Kerr talks about, decide that the amount of drugs that can be hidden in a man's rectum justifies detaining him, X-raying him, repeatedly digitally probing him, and despite a total lack of indication he is carrying drugs, sedating him and subjecting him to a colonoscopy.

What's terrifying is that the Fourth Amendment to the United States Constitution is only as strong as judges allow it to be — and, by extension, only as strong as We the People insist that it must be. We the People are easily frightened into agreeing that the promise of safety outweighs the Fourth Amendment. As Learned Hand said:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.

I'm not afraid because police officers violated David Eckert's constitutional rights by raping and torturing him because they thought he might have a trivial amount of drugs.

I'm afraid that they might not have violated his rights as defined by the courts, because we have allowed those rights to wither away out of fear and indifference.

The government will continue to act like that until we decide, collectively, that a government that would rape and torture a man to find a fistful of drugs is not worthy of our allegiance, obedience, or respect. The government will continue to act like that until we say "enough."

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