Thursday, January 23, 2014

Why Privacy Rights Still Matter


Disclosures regarding the NSA's secret spying program have recently raised some debate in the United States over privacy rights and their limits.  How much government intrusion is too much and how should we balance the state's legitimate "need to know" against an individual's reasonable expectations of privacy?

The Fourth Amendment to the US Constitution assures our right to be free from unreasonable searches and seizures.  Critics of the Fourth Amendment often claim that it only protects the guilty.  "If you aren't doing anything illegal, then what do you have to hide?", they ask.  There are lots of compelling responses to this stupid question, but perhaps the best defense of the Fourth Amendment was recently illustrated by the case of a New Mexico man named David Eckert.

Eckert was pulled over by police for failing to make a complete stop at a sign as he pulled out of a Walmart parking lot.  An officer noticed that Mr. Eckert appeared to be clenching his buttocks. Clenched butt cheeks can only mean one thing, police reasoned: Eckert must be transporting marijuana inside his rectum (because that's where people keep it?).  This was the "probable cause" that cops cited in obtaining a warrant to perform a 14-hour-long series of invasive cavity searches on their suspect.  

Police transported Eckert to an area hospital for exams.  Doctors initially refused to perform the requested procedures, citing medical ethics.  Officers then took Eckert to the Gila Regional Medical Center, where other doctors apparently had no such ethical objections.  

First, doctors performed x-rays of Eckert's lower abdomen.  No contraband was located.  

Then, doctors probed Eckert's anus with their fingers.  No contraband was found.  

Then, just to be safe, doctors probed Eckert's anus again with their fingers.  Still no contraband.  

Next, Eckert was subjected to an involuntary enema.  He was forced to defecate in front of doctors and police.  Police searched his stool for signs of contraband, but none was found.  

After that, doctors forcibly inserted an enema into Mr. Eckert's anus a second time.  Again, he was made to defecate in front of the doctors and police.  Again, no contraband was found.  

Can you guess what happened after that?  If you guessed "Eckert was forcibly subjected to a third enema", you're right!  Still no contraband.  

Now, after spending the better part of their afternoon elbow-deep in Mr. Eckert's colon, lesser doctors might have reasonably concluded that their patient was not hiding any contraband, at least not inside his rectum.  But these guys didn't get to be doctors by quitting when the going got tough. 

Mr. Eckert was then subjected to another x-ray of his abdomen.  Still no contraband.  

Finally, Eckert was prepared for surgery and sedated.  Doctors performed an involuntary colonoscopy to inspect the lower portion of his digestive tract.  No contraband was ever located.  

Mr. Eckert's only crime was failing to make a complete stop at a sign.  Police, acting on no more than a hunch, were able to obtain a warrant from a judge, authorizing a series of highly invasive "medical procedures", supposedly justified by some serious risk to public safety (suspected possession of marijuana).  Just imagine how police might have treated Eckert if he were suspected of something that was actually dangerous.

Some people will say that this type of government intrusion is making us safer by reducing the risk of a terrorist attack.  I'd rather take my chances.

If you or a loved one have questions about invasive police searches and your constitutional right to privacy, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer