Pubdate: Sun, 22 Dec 2013
Source: El Paso Times (TX)
Copyright: 2013 El Paso Times
Contact: http://www.elpasotimes.com/townhall/ci_14227323
Website: http://www.elpasotimes.com/
Details: http://www.mapinc.org/media/829
Author: Aaron Martinez

ACTIVISTS DEMAND ANSWERS, CHANGES TO CURRENT BORDER DRUG SEARCH POLICIES

A lawsuit that alleges excessive search procedures by U.S. Customs and
Border Protection officers has civil- and immigration-rights activists
demanding answers and changes.

The questions at the heart of the issue are what rights do people have
at ports of entry, what powers do agents have and when and where do
parts of the Fourth Amendment, which protects people from unlawful
searches and seizures, stop applying.

U.S. Rep. Beto O'Rourke, D-El Paso, has asked for an investigation
into the latest incident in which a New Mexico woman claims in a
lawsuit that she was forced to have a cavity search, which included
anal and vaginal probes, after crossing the Bridge of the Americas.

O'Rourke said the war on drugs should not be used as an excuse to
violate anybody's constitutional rights.

"Recent allegations brought against CBP for extreme and illegal
searches are deeply troubling and, if true, completely unacceptable,"
O'Rourke said. "Individuals do not waive their constitutional or human
rights simply because they choose to cross one of our international
bridges. The war on drugs cannot be an excuse for sexual assault under
the color of legal authority."

O'Rourke said he is calling for an investigation into the incident and
into Customs and Border Protection search and detention protocols.

"Constitutional limits exist so that the rights of our citizens are
protected and the government does not deprive any person of life,
liberty, or property, without due process of law," O'Rourke said. "CBP
has a responsibility to ensure that all persons entering into our
country are treated humanely and in accordance with our laws."

The lawsuit contends that the 54-year-old woman underwent a brutal and
inhumane six-hour full-body cavity search by federal officers Dec. 8,
2012. The suit was filed Wednesday in U.S. District Court and names
the El Paso County Hospital District's Board of Managers, University
Medical Center, Drs. Michael Parsa and Christopher Cabanillas, two
unknown supervising U.S. Customs and Border Protection officers and
two other CBP officers only identified by their last names of Portillo
and Herrera as defendants.

"(Customs and Border Protection) is acting without accountability
right now," said Laura Schauer Ives, legal director of the ACLU in New
Mexico, who filed the suit. "They are doing whatever they deem
necessary in their pursuit for undocumented immigrants and drugs. This
case is a clear example of that. This was not constitutional or
necessary to subject someone to this many searches, culminating in a
cavity search. This should be a clear indication to every American
that we have gone too far."

The lawsuit claims no search warrant was issued. Even after officers
were repeatedly unable to find evidence of drugs on the woman, they
continued to search her, the lawsuit claims.

"At a port of entry, you have diminished rights," said Jed Untereker,
legal director of Paso Del Norte Civil Rights Project. "The federal
government has a lot of leeway on what they are able to ask you and
what they are able to do to search you. It is not like you are at your
house where they need a search warrant. They don't even need probable
cause."

According to the U.S. Code of Federal Regulations, the diminished
rights do not just extend to ports of entry. Federal officials have
the right to search anybody without a warrant within 100 air miles of
a U.S. border, which encompasses all of El Paso and Las Cruces. That
is why border patrol checkpoints on highways are allowed.

"No doubt your rights are different at a port of entry, but that does
not mean you have no rights," Ives said. "They are not read their
Miranda rights and they are not offered a lawyer."

Activist and politicians are asking for changes to the U.S. Code of
Federal Regulations, which diminishes the rights of people at ports of
entry.

"It is not a Constitution-free zone, but you do have diminished rights
within a 100 miles of a border," Ives said. "It does not mean you have
no rights and this lawsuit is a clear case that the federal government
exceeded protections granted under the Fourth Amendment."

U.S. Customs and Border Protection officials declined to comment on
the exact policies Wednesday, but sent the El Paso Times a link to a
document with their policy when it comes to authority to search.

The CBP policy states, "U.S. Customs and Border Protection (CBP)
officer's border search authority is derived from federal statutes and
regulations, including 19 C.F.R. 162.6, which states that, 'All
persons, baggage and merchandise arriving in the Customs territory of
the United States from places outside thereof are liable to inspection
by a CBP officer.' "

The policy given to the El Paso Times does not go into detail on
medical examinations for drug searches, but in a statement CBP
officials said every search is held to the highest standard. It's not
known how many full-body searches are conducted every year.

"CBP stresses honor and integrity in every aspect of our mission, and
the overwhelming majority of CBP employees and officers perform their
duties with honor and distinction, working tirelessly every day to
keep our country safe," Customs and Border Protection officials said
in a statement. "We do not tolerate corruption or abuse within our
ranks, and we fully cooperate with any criminal or administrative
investigations of alleged misconduct by any of our personnel, on or
off-duty."

Even though officials would not discuss the case, there have been
documented cases in which smugglers swallow packets of drugs and later
evacuate them from their body or place the drugs in body cavities.

Policies of federal law enforcement agencies have not only come into
question due to this recent lawsuit, but the role of hospital
officials who perform the medical examinations also has been raised.

In the lawsuit, University Medical Center, where the woman was taken
during the search, is also listed as a defendant. UMC officials said
they could not discuss the pending lawsuit but said they have launched
an investigation.

"Hospital policy is to obtain consent from all patients who receive
medical services at UMC," Margaret Althoff-Olivas, director of public
affairs for University Medical Center of El Paso, said in a statement.
"Because this case involves litigation, UMC will not be commenting
further."

UMC sent the El Paso Times a copy of its L-13 policy on searching
patients, but declined to discuss the policy further.

"We want to assure the community that UMC is conducting a thorough
review of the allegations raised in the ACLU's lawsuit," UMC officials
said in a statement. "We take these types of claims very seriously and
are taking steps to ensure that our staff does the right thing by
every patient every day. Hospital policy is to obtain consent from all
patients who receive medical services at UMC. "

The L-13 policy states, "Associates, members of the medical staff,
residents or Allied Health Professionals may search a patient only
when necessary to comply with a search warrant."

The case in El Paso is not the only one in the region.

In November, a New Mexico man sued Deming police officers who gave him
three enemas, two anal probes and a colonoscopy after he was suspected
of having drugs. The search found nothing, and lawyers for the man
said the warrant used to conduct the search failed to show probable
cause.

Times reporter Aaron Bracamontes contributed to this report.
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