Illegal Search

I’m distressed by the news of eighteen-year-old Ashley Cervantes who crossed the border at Nogales Arizona into Nogales, Mexico to eat breakfast. When she came back she was accused by Customs and Boarder Patrol (by an unidentified agent) of transporting drugs, which she denied. She was searched by a CBP officer sniffed by a drug detection dog while handcuffed to a chair. (It’s against CBP policy to sniff persons, though I don’t specifically know why.) When that proved fruitless, she was then taken to another detention room where she was patted down and then asked to squat so female investigators could visually inspect her.(PDF) These searches also yielded no evidence of drugs or contraband.

At this point the CBP officers decided Cervantes must be a mule and escalated the searches. Cervantes was taken to Holy Cross Hospital, and given a diagnosis as an apparent potential internal carrier of foreign substance. I assume by Dr. Patrick Martinez (This guy.) made the diagnosis. He also didn’t give an X-ray (the treatment authorized) rather he conducted a warrantless, unconsented and unauthorized search by probing Cervantes’ vagina and anus, while CBP officers watched.

During the whole time, Cervantes was not read her Miranda rights, nor did she consent to searches or procedure, nor were any warrants sought, nor was she charged with anything.

The official policy of the Holy Cross Hospital does not permit unwarranted or nonconsensual searches, yet CBP officers seeking to conduct invasive medical searches on suspects routinely bring their subjects there.

I’m partly curious how a Immigration Health Services TAR (Treatment Authorization Request) or medical treatment at all was authorized without the patient’s consent given that it is neither lawful nor ethical for treatment to be given without express consent (or in emergency situations, implied consent due to unconsciousness). I’m also stunned that an American woman was no less than sexually assaulted (rape, according to some states) without charges or warrant.

Cervantes’ parents were billed for the search over $500

The Department of Homeland Security and the CBP have both claimed that they cannot respect the constitutional right right to be free from unreasonable search in incidents within one-hundred miles of a US boarder. And just yesterday, I mentioned the news of SCOTUS declaring that juicy evidence that is obtained during an illegal or unreasonable search is admissible, regardless. We’re going to see how that manifests.

Ideally, Cervantes will get a whopper award. It won’t stop the CBP since the money comes from general fund (and still from taxpayers). Prior incidents of unlawful body-cavity searches have resulted in such awards. But that won’t change the paradigm.

From this position, it appears that an informant fingered (informed on) Cervantes, either thinking she was someone else, or based on insufficient intelligence. Given that the FBI, ICE and the CBP have used unreliable informants in the past, sometimes to secure warrants or to presume probable cause, I’m not even going to give them this much benefit of the doubt this time.

If this is what safe from terrorists or safe from drugs looks like, I’d rather be unsafe.

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