The Drug Enforcement Administration has been so incredibly effective in eradicating demon narcotics that it no longer has any cartel kingpins that require its time and, instead, its agents can hang around bus stops. Bet you didn’t realize that these guys deserved a statue.
Federal drug agents may be racially profiling and unjustly seizing cash from travelers in the nation’s airports, bus stations and train stations. A new report released by the Office of the Inspector General for the U.S. Department of Justice examined the Drug Enforcement Administration (DEA)’s controversial use of “cold consent.”
What makes this unusual, to the extent it is unusual, isn’t that it happens, but that Mike Horowitz, DoJ Inspector General, calls out the DEA for engaging in these “interdiction” approaches.
When it comes to exceptions to the Fourth Amendment, none is better than consent, which vitiates all protections that might otherwise be available to an individual to protect themselves from a search.
In a cold consent encounter, a person is stopped if an agent thinks that person’s behavior fits a drug courier profile. Or an agent can stop a person cold “based on no particular behavior,” according to the Inspector General report. The agent then asks people they have stopped for consent to question them and sometimes to search their possessions as well. By gaining consent, law enforcement officers can bypass the need for a warrant.
Perhaps a better explanation of a “cold consent encounter” is that the agent has no justification for approaching a person and asking for consent, but between his right to conduct a putative Terry Stop and the target’s “submission to the shield,” the inclination to grant consent rather than object out of fear that refusal will either give the agent reason to believe that he must be up to something bad, or fabricate a reason to arrest or become violent to teach the target a lesson in respect, overwhelms resistance. The target consents because he feels he has no viable alternative to refuse.
So why pick out one person as a target as opposed to another?
But after reviewing the DEA’s policies, the Inspector General concluded, “cold consent encounters and searches can raise civil rights concerns.” In one incident, DEA agents cold-stopped an African-American woman at an airport and allegedly subjected her to “aggressive and humiliating questioning”; the woman was a Pentagon lawyer and travelling on government business.
Oops. Black female Pentagon lawyer travelling on government business? What were the chances?
But the gimmick doesn’t stop with profiling and obtaining consent by creating fear that refusal will have dire consequences with the “what do you have to hide” schtick.
Disturbingly, the Inspector General found that DEA interdiction task force groups have been seizing cash from travelers and then urging them to sign forms disclaiming their own cash and “waiving their rights.” In one cold consent encounter, DEA agents stopped another African-American woman in part because she was “pacing nervously” before boarding her flight. After gaining her consent, the agents searched her luggage and found $8,000.
A drug dog then alerted to the cash, and the DEA seized it. However, the Inspector General report did not state if any drugs were actually found or if the woman was ever charged with or convicted of a crime in connection with the seizure. Not to mention that most U.S. currency in circulation has been exposed to drugs.
The deal is fairly straightforward, as the agents offer their target a choice, waive their rights or get arrested, go to jail, fight prosecution and perhaps lose. Or give up the money and go home for dinner. Given the variables, people tend to go the route with the greater guarantee of a decent meal, even if the arrest course is likely a lie. Remember, law enforcement officers are allowed to lie, as it’s an effective tool in fighting crime.
That the feds are now in the business of penny-ante forfeitures speaks volumes about both the lack of serious crime as well as the perverse incentives to allocate personnel to try to steal pennies from travelers. Sure, it can be rationalized as part of a grand scheme to take the profit out of crime, one dollar at a time, but that’s mere tough on crime marketing nonsense. It was never the justification for the DEA existing, no less becoming embroiled in such low rent operations.
To Horowitz’s credit, it would have been remarkably easy to put these operations into the pile of things that don’t raise problems, as consent obtained by a wee bit of threat and duress hasn’t presented much of a problem for judges. With rare exception, courts have long been inclined to adopt the fantasy that people who consent do so knowingly, intelligently and voluntarily, except when there is an actual gun pressed against their head. The metaphorical gun just won’t do.
By characterizing the exception as “cold consent,” it highlights the impropriety of DEA agents approaching a person who would otherwise have no reason to expect to be in law enforcement crosshairs. These are people on the “good guy curve,” unfamiliar with dealing with police and unaware of how to effectively do so while preserving their rights.
That people aware of this happening will have greater awareness of how to deal with it should it happen to them doesn’t help the unaware good guys. They have no reason to be interested in such matters as civil forfeiture until it touches their lives. These are the perfect marks for the “cold consent” scam, with no recognition of what’s being asked of them and no understanding of how to effectively resist. They are rife with fear and the first to fall for the agents’ schtick.
That those of us who object to such improper law enforcement abuses decry such tactics is one thing, but to have the Inspector General join in attempting to stop this abuse is huge. If nothing else, Mike Horowitz deserves props for doing his job, and doing it well, which may explain why the law enforcement agencies never invite him to their beer blasts.