The War on Drugs Now Features Roadside Sexual Assaults By Cops
I am a senior editor at Reason magazine and a nationally syndicated columnist. I am the author of Saying Yes: In Defense of Drug Use (Tarcher/Penguin) and For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health (Free Press). My work on drug policy and civil liberties has appeared in Cigar Aficionado, Seed, National Review, The Wall Street Journal, The New York Times, the Los Angeles Times, the San Francisco Chronicle, and many other publications.
Last week the Texas House of Representatives unanimously approved a bill that requires police officers to obtain a warrant before probing the anuses and vaginas of motorists during traffic stops. The fact that the bill was deemed necessary speaks volumes about the way the war on drugs has eroded our Fourth Amendment rights and encouraged cops to inflict outrageous indignities on people they suspect of violating pharmacological taboos.
How often do Texas cops decide to perform body cavity searches on people they pull over for routine traffic offenses? More often than you might think. Looking for the case that gave rise to this bill, I immediately found three cases, all involving young women suspected of marijuana possession.
On Memorial Day in 2012, Alexandria Randle and Brandy Hamilton, both in their 20s, were driving home to Houston from Surfside Beach when they were pulled over for speeding on Highway 288 in Brazoria County. Claiming to smell marijuana, Trooper Nathaniel Turner ordered the women out of the car. After he found a small amount of pot in the car, Turner called a female trooper, Jennie Bui, and asked her to perform a body cavity search on both women. “If you hid something in there, we are going to find it,” Bui says on the dashcam video of the traffic stop. It turned out there was nothing to find. The stop ended with a ticket for possession of drug paraphernalia.
“It was extremely humiliating, especially with my entire family, including my 8-year-old nieces and my nephew…in the back of the car,” Randle told HLN. “They saw all of this happening, as well as everybody on the side of the road….I have a whole different feeling when I see police officers now….It’s a very touchy thing dealing with them.”
Randle and Hamilton sued the Texas Department of Public Safety (DPS) over the incident. Initially both troopers were dismissed, but Bui was reinstated. “It was determined that the relatively inexperienced trooper was directed by a more senior trooper to conduct the inappropriate search,” DPS Director Steve McCraw explained.
Randle and Hamilton’s ordeal was not unique. The same month they filed their lawsuit, DPS settled a case brought by two other women, Angel Dobbs and her niece Ashley Dobbs, who were 38 and 24, respectively, when they were stopped for tossing cigarette butts from their car on Highway 161 near Irving in July 2012. Trooper David Farrell claimed to smell marijuana coming from their car and called in a female trooper, Kelley Helleson, to poke around in their private parts.
According to the lawsuit, Helleson conducted these “painful, humiliating, and shamefully embarrassing” body cavity searches “on the side of a public freeway illuminated by lights from the police vehicle in full view of the passing public.”
Like Randle and Hamilton, Angel and Ashley Dobbs said the trooper who searched them did not bother to change gloves between assaults. No drugs were found. The women got $185,000 for their trouble.
In this case, the trooper who conducted the search was fired, while the trooper who arranged it was suspended. Helleson was charged with two counts of sexual assault, while Farrell was charged with theft for allegedly stealing a bottle of hydrocodone. Last year Helleson pleaded guilty to two counts of official repression and received two years of probation, plus a $2,000 fine. According to the New York Daily News, “Helleson apologized in court, saying she was only doing what she was trained to do.” A grand jury declined to indict Farrell on the theft charge, and he is “back on active duty,” keeping Texas highways safe.
In yet another strikingly similar incident, Houston resident Jennifer Stelly says she and her boyfriend were pulled over for speeding in Brazoria County on the way to Surfside Beach in March 2013. The troopers claimed to smell pot, found a little in her purse, and decided a body cavity search was a good idea. “I was on my cycle,” Telly told the Fox Fox station in Houston last December, “so she could not penetrate the vaginal area but she went to the anal area, and she penetrated and put her finger inside, and I just felt violated.” Stelly is suing DPS too.
According to DPS, searches like these are contrary to department policy, but apparently not all troopers got the memo. So you can begin to understand the motivation behind the bill that the Texas House passed last week, which was sponsored by Rep. Harold Dutton Jr. (D-Houston) and still needs approval from the state Senate. Dutton’s bill says “a peace officer may not conduct a body cavity search of a person during a traffic stop unless the officer first obtains a search warrant pursuant to this chapter authorizing the body cavity search.”
You might think Dutton’s bill is redundant, since we already have a Fourth Amendment, which prohibits “unreasonable searches.” If these highly invasive, weakly justified searches do not qualify as unreasonable, what would? But while the courts probably would conclude that the searches described by these five women were unconstitutional, it is not hard to see how an overzealous drug warrior might think otherwise.
The U.S. Supreme Court has upheld routine strip searches of arrestees, even people accused of minor offenses such as marijuana possession or failure to wear a seat belt. In those cases the searches, aimed at finding weapons or contraband, took place in jail prior to confinement. But in 2003 the Texas Court of Criminal Appeals ruled that the Fourth Amendment allows warrantless inspection of body cavities in other settings as a “search incident to arrest.”
The case involved Danny Joe McGee, a suspected crack dealer who was arrested for marijuana use. Based on a tip from an informant who suggested that McGee might be concealing crack “between his buttocks,” a police officer took him to “a secluded area” of a fire station and “compelled McGee to drop his pants, bend over, and spread his buttocks.” A “visual search of McGee’s anal region” revealed “several rocks of crack cocaine wrapped in red plastic in plain view lodged between McGee’s buttocks.”
The Supreme Court also has indicated that warrantless body cavity searches are permissible near the border as part of the government’s drug interdiction efforts. In a 1985 decision that upheld the detention of a Colombian woman whom customs agents suspected of swallowing balloons filled with cocaine, the Court said “we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches” (emphasis added). In other words, the Court assumed that such searches, aimed at addressing “the veritable national crisis in law enforcement caused by smuggling of illicit narcotics,” do not require probable cause, let alone a warrant.
In 2009 the Court ruled that public school officials went too far when they looked in the underwear of an eighth-grader suspected of bringing ibuprofen to school. But that decision left open the possibility that a strip search might be constitutional in a case involving a drug scarier than Advil if there was reason to believe a student had hidden it under her clothing.
The searches that prompted Dutton’s bill are different from the ones that have been upheld by the courts in several significant ways: They did not follow an arrest, they were not initiated by customs agents, they were conducted publicly on the side of the road, and they were not based on specific information indicating that the women had concealed drugs inside their bodies. Furthermore, the searches involved physical contact as opposed to a visual inspection.
Still, in at least two of the cases, there was evidence of an arrestable offense: marijuana possession. Perhaps the troopers thought a search in that situation was reasonable even without an actual arrest. Or perhaps they did not see an important difference between searching someone’s car, which police are allowed to do without a warrant if they have probable cause to believe they will find evidence of a crime, and searching someone’s anus or vagina.
That may be hard to believe, but it is also hard to believe that six troopers in three separate traffic stops thought it was reasonable to explore those private areas on the off chance that there might be some pot there. Such judgments can be understood only in the context of a prohibitionist mentality that sees bits of dried vegetable matter as a grave threat to public order.
“I was shocked to learn that these very intrusive searches were performed without a warrant and without regard to basic sanitary practices,” says state Rep. Dustin Burrows (R-Lubbock), who is sponsoring another bill aimed at preventing such incidents. “While I have a tremendous amount of respect for our local police and sheriff’s departments, I am concerned about the fact that this could happen to any of us, here or in other parts of the state, as we travel. The Fourth Amendment guarantees the right of the people to be secure in their persons, and I believe this bill is a natural reflection of that right.”
Burrows’ bill goes further than Dutton’s by requiring a warrant for a body cavity search of anyone detained (but not arrested) by police, whether during a traffic stop or in another context. It also requires that body cavity searches be conducted “in a private, sanitary place…in accordance with medically recognized, hygienic practices”; forces law enforcement agencies to pay medical costs associated with searches regardless of the results; and makes evidence obtained in violation of the new rules inadmissible in court.
Sadly, the concern that people forced to undergo such searches will be stuck with the resulting medical bill, even when no contraband turns up, is no more fanciful than the concern that traffic cops will commit sexual assault in the name of enforcing our drug laws.