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Following the posting of “The Politics of Police Rape: The David Eckert Case,”  I’ve been able to find much more information about the case.  Reader Kerry S (thanks!) provided a link to an article by Massad Ayoob.  Ayoob is a prolific writer on firearms, use of force, and police issues.  I have been reading and appreciating his work since my first police job, lo, these many years ago.  I’ve also found a PDF copy of the search warrant affadivit that is most revealing.  It appears every source I’ve previously consulted got at least some of the case wrong.  I’ll correct that in this article.  First, let’s deal with Ayoob’s article which provides a more-or-less predictable police perspective.


 They didn’t find drugs, so they were wrong. Punish them.’ Sorry, folks, that’s not how it works. To make a long story short, ‘You don’t have to be right, you have to be REASONABLE.’ Do a Google search for Graham v. Connor. The suspect, with a long record of drug arrests, was known to one officer to have stuffed drugs up his butt before; the drug-sniffing dog alerted to the driver’s seat where he had been sitting; and, what first alerted the officers to that area of his body, he was visibly clenching his buttocks tight.

Ayoob is correct.  Any search based on probable cause relies on the observations of a “reasonable” police officer.  The fact that no drugs were found does not–by itself–invalidate the search as long as the officer had genuine and sufficient probable cause.  As you’ll shortly see, they did not.  In fact, nowhere in the affidavit is there any mention of Eckert’s buttocks, clenched or otherwise.

They based it on an anonymous tip! Punish them!’ No. ONE basis of multiple bases was that another officer said the suspect was known to put drugs up his butt. The fact that the officer giving that information was not named in the warrant does not make it an ‘anonymous tip,’ and only someone with a child-like grasp of the criminal justice system would think so. It’s more like ‘transferred probable cause.

This is more troublesome.  Strangely, the affidavit doesn’t identify the K-9 officer from a neighboring jurisdiction that provided the “tip” to which Ayoob refers, referring to him only as “Hidalgo County K-9 Officer.”  Affidavits usually specify the names of everyone involved–particularly police officers–so that the judge can better determine their reliability.  The only exceptions would commonly be for officers that need to remain undercover.  In a sense, the source of the “tip” is therefore anonymous.  Police officers can indeed provide information to other officers that can be used in the establishment of probable cause, however that information must be current and it must be accurate. In this case, it was anything but.

Ayoob points out that people that ingest drugs or hide them in their bodies are often in great danger if those drugs are accidently released, and suggests that the police–and particularly the medical personnel involved–were terribly concerned for Eckert’s safety.  There is not so much as a hint of this concern in the affidavit or medical reports.  Ayoob also suggests, without reference to supporting evidence, that the medical personal must have had good reasons for repeatedly violating Eckert, and that those repeated violations must have been done with Eckert’s welfare foremost in mind.  For example:

But the warrant was from another jurisdiction, and had timed out. If there is good reason to believe there may be life-threatening substances inside the patient’s body, exigent circumstances (look it up) have kicked in. That triggers the doctrine of competing harms/doctrine of necessity/doctrine of two evils. (Look those up, too.) The importance of the warrant now pales.

Ayoob is assuming facts not in evidence.  Exigent circumstances allow officers to bypass normal warrant requirements, but only for genuine emergencies, and for very brief periods. The moment those exigent circumstances have expired, any justification for the police to proceed without a warrant expires as well.

Classic example: a police officer witnesses a man shoot a woman on a sidewalk.  Seeing the officer, the man, still holding his gun, rushes into a nearby home, breaking in the front door.  The officer would normally have no power to enter the home, but because the man is armed, obviously deadly, and highly likely to take hostages, hurt others, or escape if the officer does not pursue him into the house, exigent circumstances exist and the officer may pursue him.  However, the moment he has captured the suspect, he must leave the house as quickly as safety allows.

Eckert was taken into police custody no later than 1400 on 01-02-13.  The first enema wasn’t administered until 2223, nearly eight and one half hours later.  The warrant expired at 2200.  This fact alone obliterates any claim of the officers and medical personnel to an urgent concern for Eckert’s life.  Likewise, the second enema wasn’t administered until 2351–more than an hour later–and the third at 2400.  Any concern for Eckert’s life had to wait for another x-ray, and the final colonoscopy, which was not performed until 0126 on 01-03-13, an hour and a half after the last enema.  As you’ll see later in this article, medical records likewise reveal no urgency or concern for Eckert’s life.

Any exigent circumstances claim in this case is, to put it mildly, ridiculous.

However, Ayoob does not relent (Note: Ayoob is not referring to me in this passage; his article was posted before my first writings on this case):

It’s laughable that the cops did that for the suspect’s safety, according to one critic. And, cops have no responsibility for our safety. BS and more BS.  A ‘special relationship’ existed between the officers and the suspect the moment the investigative detention began. Once they came to believe he may have stuffed enough drugs up his butt to kill him, they had both legal and ethical duties to seek further examination.  And if, when the docs caught the ball and did the examinations, they didn’t see some reason to continue looking, why on earth would they have done so?  Cui bono? What would the docs who did the exams have possibly had to gain at that point, if those medical professionals DIDN’T have reason to think it was necessary?

As I previously noted, the affidavit has not the slightest mention of any concern for Eckert’s welfare, let alone his continuing existence.  If the police had such concern, they–and the doctors involved–certainly took their time acting upon it.  Why did the doctors continue to probe Eckert?  Could the police have had anything to do with urging them to continue, perhaps telling them that Eckert was known to “carry” drugs this way?  It’s hard to imagine why doctors would continue to act as they did without outside influence.

Ayoob is right that police officers are responsible for the welfare of anyone in their custody, but that’s not the issue in this case.  The issue is whether there was probable cause for a warrant in the first place, and that once it was issued, at what point should the officers–and their agents, the doctors–have stopped?  Any responsibility for the welfare of a detainee does not authorize never-ending medical procedures/searches.

Ayoob suggests, finally, that we might wish to wait for both sides to speak before judging.  Both sides have spoken; the police and doctors have done it through their reports.  It appears that any claim of concern for Eckert’s welfare was a post-rape invention.  At least, that’s what the available evidence indicates at this moment.


SW 1

The first page is essentially required language for a drug search, unremarkable and non-specific language that would probably appear on any similar affidavit.  The affidavit requests authorization for a search of Eckert’s vehicle–which had already been searched without result–and Eckert “to include but not limited to his anal cavity.”  Every page of the three-page document bears this scrawl in the lower right hand corner:

Approved. Dougherty DDA 1/2/13

Daniel Dougherty is the deputy district attorney that approved the affidavit and is a defendant in the lawsuit.

SW 2

The second page is the probable cause for the warrant.  It is weak indeed.  I’ll leave out the procedural matters, such as the traffic stop that formed the basis for the entire debacle.  In summary, here is the “evidence” alleged by Officer Chavez of the Deming Police Department:

(1) Eckert avoided eye contact when asked for his license, etc.

(2) When he handed Chavez his documents, Eckert’s left hand “began to shake.”

(3) Chavez had Eckert step out of the car and patted him down, finding nothing.

(4) Here is the only passage having any relation to clenched buttocks: “While Mr. Eckert was standing outside of the vehicle I did notice his posture to be erect and he kept his legs together.”

(5) Chavez asked for consent to search Eckert’s vehicle and Eckert gave it.  The vehicle was searched and nothing was found.

(6) Chavez asked to search Eckert (he had already done a pat down) and Eckert declined (remember that nothing was found in any search).

(7) A 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.”

(8) “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.”

SW 3

The third page is essentially procedural and contains various signature lines.

SW 4The fourth page is the return, which is returned to the judge, listing any and everything found.  It reads: “Nothing located on Mr. Eckert’s person, vehicle search [final word illegible].”

Remember that evidence authorizing a search warrant must not only be specific, it must be contemporaneous.  It must be close in time to the search.  An officer can’t say “an informant told me he saw drugs on Smith’s kitchen table last week,” and expect to obtain a warrant.  An informant claiming he saw them yesterday isn’t sufficient.  Seeing them an hour ago might be. That evidence must also be directly related to the offense alleged.  It can’t be mere suspicion or imputed knowledge given from one officer to another about past misbehavior.  “Officer Smith told me that he knows that Billy Bad Guy is a burglar because he was convicted of burglary a few years ago,” doesn’t cut it.

Let’s review the probable cause:

(1) Eckert avoided eye contact when asked for his license, etc.

He may not have been making eye contact because he was looking for those documents.  Most people are uncomfortable making direct eye contact with police officers, rightly suspecting that officers might interpret it as challenging.

(2) When he handed Chavez his documents, Eckert’s left hand “began to shake.”

It is the rare citizen that does not show any sign of nervousness when confronted by the police, including shaking hands.

(3) Chavez had Eckert step out of the car and patted him down, finding nothing.

If Chavez had any reason to suspect that Eckert was carrying or concealing drugs, he did not state it at this point.  He provided no reason to think Eckert was in any way drug involved, and it is his obligation to provide the detailed, concrete observations that would lead a reasonable police officer to have that belief.

(4) Here is the only passage having any relation to clenched buttocks: “While Mr. Eckert was standing outside of the vehicle I did notice his posture to be erect and he kept his legs together.”

Chavez does not explain why that posture is in any way suspicious or indicative of drug involvement.  This is doubtless because standing with one’s legs together–Chavez does not describe Eckert’s posture beyond this–is not at all suspicious in general, and Chavez does not explain why it might have been unusual in those specific circumstances.  He provides no links to establish probable cause.

(5) Chavez asked for consent to search Eckert’s vehicle and Eckert gave it.  The vehicle was searched there and nothing was found.  It was also more completely searched under the warrant and nothing was found.

(6) Chavez asked to search Eckert (he had already done a pat down) and Eckert declined (remember that nothing was found in any search).

The mere fact that someone does not want to submit to a search is not probable cause to believe any crime has been committed.  Any citizen has an absolute right to refuse a search. In some circumstances, such refusal might be usable to help develop sufficient probable cause for a warrant, but again, Chavez provides no such information.

(7) A 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.”

A dog “alerting” to a side of a vehicle is a non-specific thing.  What is the dog smelling?  From where, exactly, does the scent emanate?  How fresh is it?  Likewise, alerting “to the driver’s side seat” is equally non-specific.  What does that mean?  In schools, dogs “alert” to lockers all the time.  Usually, no drugs or signs of drugs are found.  Were there drugs in that locker?  What kind?  When?  Or was the dog simply mistaken or distracted, or excited about something else?  Sometimes, student’s lunch–to the delight of the dog–is found.  Fortunately, no one sees this as PC for a body cavity search.

Here is where the problems with a lack of contemporaneous evidence begin.  If a dog “alerted” and some evidence of drugs were found, that would provide strong probable cause–at least for a complete search of the car–but no such thing happened here.  Perhaps drugs were in the car within the last few days or weeks, but perhaps Mr. Eckert loaned the vehicle to a friend.  Perhaps Mr. Eckert just bought the car.  Perhaps Mr. Eckert had drugs in his back pocket earlier in the day while driving the car, but the fact is no drugs were in the car or on Mr. Eckert at the time Officer Chavez stopped him.  Perhaps the dog was mistaken, or its handler misinterpreted the dog’s actions.

The next bit is where things get interesting, and potentially, into perjury territory.

(8) “Hidalgo County K-9 Officer did inform me that he had deal 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.”

At this point, if he has any knowledge of the Constitution and the law, Officer Chavez must have known that he had nothing.  He had no grounds to probe further.  A man who appeared a little nervous, stood with his legs together with good posture, who didn’t want to be searched, but let the police search his car, and a dog “alerting” on the seat of that car does not cause the rational police officer to connect the dots up Eckert’s anus to a cache of drugs.

Then the mysterious “Hidalgo County K-9 Officer” tells a vague story about Eckert sticking drugs up his butt at sometime in the past in another jurisdiction, such time and details not to be revealed in the affidavit.  Perhaps the mysterious officer was right; perhaps he was merely mistaken; perhaps he was lying to help a fellow officer.  Chavez didn’t exercise appropriate skepticism.  Suddenly, Chavez believed he had something to bridge the gap between a potential smell on a car seat, through Eckert’s pants and his underwear, and into his anus, where because an officer told him he believed Eckert had drugs in his anus at some time in the past, he certainly must have drugs there that instant.

What kind of drugs and in what amount?  Well, you know, drug drugs!  Because, well, because, well…you know–I mean, if you stick drugs up your butt once, you’ll always stick drugs up your butt afterward, right?  Right?  I mean, anybody can see that–if they look close enough.  That’s iron-clad probable cause, right?

The Blaze has been following this story as well, and reports: 

Eckert’s history with drugs had been revealed by his attorneys, Joseph and Shannon Kennedy, but there was no mention of any previous attempts to transport drugs in his anal cavity. Still, though court records confirm Eckert’s history of drug-related offenses, we found no information confirming police’s claim that he once was caught with drugs in his anal cavity.

Even with the new revelations, police officers will still have to justify to a law enforcement review board why they went to such great lengths even after an initial X-ray showed no drugs in his body.

Eckert’s attorney, Shannon Kennedy, told TheBlaze allegations that her client has previously been caught with drugs in his anal cavity are ‘completely baseless’ and ‘false.’

‘There’s no record, there’s no evidence,’ she added. ‘We did a public records request and investigated that claim thoroughly and found nothing.

Not trusting in Ms. Kennedy–she might be mistaken–TheBlaze did a records search and discovered that Mr. Eckert does indeed appear to be a petty criminal with involvement in drugs.  However, there is no evidence whatever that Mr. Eckert ever was found with, or even suspected of secreting, drugs in his anus.  In fact, he doesn’t appear to have an actual conviction for drugs.

A records search for David W. Eckert’s past criminal history returns several results. The most recent drug-related arrest appears to have been in 2012. A section on the record, however, says the case was “dismissed by prosecutor.”

He was charged with possession of a controlled substance (methamphetamine), a felony, in the case. The state of New Mexico entered a “nolle prosequie” motion, meaning it found it was not in the state’s best interest to prosecute, according to court records.

In 2008, he was charged with felony possession of a controlled substance and misdemeanor use or possession of drug paraphernalia. He pled guilty and a judge granted him a “conditional discharge” with the stipulation of 18 months supervised probation, records indicate.

In 2005, Eckert was charged with felony possession of a controlled substance with intent to distribute in a school zone and misdemeanor use or possession of drug paraphernalia. The case was ultimately dismissed by the prosecutor after it went to trial and the defense entered an “alibi or entrapment” defense.

Finally, in 2002, Eckert was charged with forgery, possession of a controlled substance with the intent to distribute and use or possession of drug paraphernalia. Each count was apparently “dismissed” by the prosecutor after the state of new Mexico again entered a “nolle prosequie” motion.

Though Eckert has had other legal issues going back to 1999, they involved debt, divorce and other financial issues.

Another interesting matter is that the affidavit indicates that Chavez was out of uniform when he stopped Eckert.  He called a uniformed officer–Villegas–who did issue him a citation for running a stop sign.  I don’t know if Chavez was off duty, in an official vehicle, precisely how he stopped Eckert, or any additional details, but this factor does potentially have some bearing on this case.


Filed on 1024-13, the lawsuit provides a number of additional interesting details. 

It appears that the officers were more specific with the doctors than they were with the affidavit and the judge.  Dr. Okay Odocha, in his report, writes:

The patient is a 63-year old male who was brought in by the police following a judge’s order for body cavity search for possible foreign body (bag of crystal methamphetamine) in the rectum.  Following this, the patient was evaluated by the emergency room physician who did a rectal examination and felt that he could feel something inside the rectum, but he was not sure what it was.

Dr. Odocha makes no mention of the intervening second digital probe, the two x-rays, and the three enemas.  He also makes no mention of the fact that he digitally probed Eckert’s rectum after Dr. Wilcox did it, and before the round of enemas began.

In a letter to the New Mexico Medical Review Commission, Joseph Kennedy (also Eckert’s attorney) clarifies matters:  

An x-ray was performed on Mr. Eckert where no foreign objects were found.  Dr. Wilcox then performed a digital search of Mr. Eckert’s rectum against Mr. Eckert’s consent.  Dr. Wilcox then ordered a surgical consultation with Dr. Odocha who also performed a digital search of Mr. Eckert’s rectum.  Neither doctor felt anything apart from stool in Mr. Eckert’s rectum.

It is possible that Dr. Wilcox thought he felt something in Eckert and called Dr. Odocha to confirm it, however, if this is true, neither doctor documented it in their reports, and they apparently thought they were looking for Crystal meth.  Another thing they did not document in their reports: any mention of concern for Eckert’s well-being due to the possibility of drugs hidden within his body.  Coming up with testimony now not documented at the time will look very much like trying to cover up an unjustifiable decision to repeatedly violate Eckert, certainly with the encouragement and knowledge of the police.


The Erik Scott and Jose Guerena cases are different than the usual police tales I examine in that Scott and Guerena were not criminals with long histories of police contacts.  It is clear the Eckert is a petty criminal, and a rather old one with long experience.  However unsavory he might be, it is the principle involved that is of the greatest importance, for any citizen might find themselves, in the estimation of the Deming, NM police, not stopping quite fully enough when leaving Wal-Mart.  They could fail to make eye contact with the officer, find their hand shaking, and stand with their legs together.  They might even feel as Eckert did, that after being manually searched once, they didn’t want to experience it, in more depth, twice.  Who, however, could imagine what would happen thereafter?

Now we all can.

I have not carried a badge for nearly 15 years.  I am often surprised by the current generation of police officers.  These officers have reached new lows.

Given the same set of circumstances, I would have cited Eckert and sent him on his way.  There was simply not enough evidence to justify searching his car, or him.  And it would not have occurred to me to try to obtain a warrant to search his anus, and I was the most aggressive and prolific patrol officer–and by an enormous margin–at my last police agency.  I don’t care how many stories an officer from another jurisdiction had to tell, what someone might have done–with no supporting documentation–at some unspecified time in the past, does not establish probable cause to believe that a specific person is now, at this moment, carrying some specific type and quantity of drugs in his rectum.  Nor does it, in any way, justify what the officers caused doctors to do, or their lack of common sense and medical ethics in doing it.

At this point, it would be difficult indeed to imagine what additional evidence exists that could convince me that the officers did indeed have probable cause to obtain a warrant.  Remember: there were no clenched buttocks.  Let’s not even get into what happened thereafter and what possible justification could exist to proceed after the first x-ray and–let’s give them the benefit of the doubt–the second digital exam.

No probable cause.  No medical reason for anal rape after anal rape.  No evidence found.

David Eckert is likely not a terribly sympathetic victim, but he could have been any of us.  And like him, we all have an anus that might seem suspicious to some police officer–unless he has very good reason to be very careful to follow the Constitution before embarking on such dark journeys.