This article first appeared in New English Review.
This week, the Department of Justice ordered
the head of the Drug Enforcement Administration, Anne Milgram, to discontinue a
controversial enforcement program that had come under renewed scrutiny after a
video surfaced of DEA agents attempting to obtain a consensual search of a
traveler’s luggage at Cincinnati Airport.
As a retired DEA agent, I had some experience with this
practice, which has been going on for many years. I retired from DEA in 1995,
which gives you an idea how long the practice has been in effect. Some aspects
may have changed over the years, but since it has come under scrutiny since the
Cincinnati incident, I thought I would share my own personal knowledge.
Since drugs and the cash proceeds from drug trafficking are
often transported through airports, train stations, and bus terminals, some DEA
agents and task force officers have been trained to interdict the drugs and
cash through approaches to certain travelers who raise suspicions. The agents would approach the person in
question, identify themselves, and ask for permission to search their luggage
or person.
There are certain indicators that might raise the suspicion
of a trained investigator. One that was reported in the Cincinnati case was the
fact that the person in question had purchased his ticket shortly before
departure. There are others that also pertain to the circumstances of the
person’s travel and/or behavior.
Already, the reader might be thinking: ”profile”. That is a tricky term and can quickly lead to charges
of racial profiling, which by law, is not allowed, yet critics of the program
have often made that accusation. On the contrary, it is the actions of the
person in question that count, not their ethnicity.
Since I was also a US Customs agent prior to joining DEA in
1973, I would also like to point out that Customs agents and inspectors have
what we call Customs search authority. That means that Customs personnel have
the right to search any and all items entering the US from other countries.
That right also extends to items suspected by Customs personnel to have
crossed the border. Customs search authority also means that items that have
entered the country can be searched at ports of entry or anywhere else. That
authority does not extend to other law enforcement agencies.
Returning to the actions of DEA agents at US airports
involving domestic flights, that means that DEA agents must obtain consent to
search a traveler’s luggage or person. If consent is not granted, the agents only
recourse is to obtain a search warrant based on probable cause that the person
is carrying drugs or drug money. To develop that probable cause during an
encounter requires specialized training that not all DEA agents have-or least
had in my day. No consent, no probable cause, it’s “Have a nice day, Sir. Sorry
to bother you.” If the agents decide they have probable cause to seek a search
warrant, the traveler is free to leave but the luggage stays until the search
warrant is signed or denied. As was shown in the Cincinnati video, a positive
reaction by a detector dog adds to probable cause.
It is also true that money that has been seized can be
subject to civil administrative forfeiture. The person from whom the money is
seized has the right to petition for its return, but it is his or her own
burden to prove the money was not proceeds or instruments of drug traffic. In
practice, many of those truly involved in the drug trade choose not to petition
for return of the money for obvious reasons. There is also a procedure for
criminal forfeiture in cases where people are actually charged with drug
trafficking, and in these cases, the standard of proof is greater as opposed to
civil procedures. In civil forfeitures, an arrest and/or conviction is not
necessary.
To be honest, I was never comfortable on the handful of
occasions I participated in this kind of enforcement action although on
occasion, I was present when drugs or money were found. While I did not receive
the requisite training, I always accompanied an agent or agents who did.
Through the retired agents’ grapevine, I have seen mixed
reactions to this decision. Some say it should have been abandoned a long time
ago. Others point out that it was Deputy Attorney General Lisa Monaco, a
liberal activist, who issued the order, and predicted that when President Trump
returns to office, it will be resumed. After all, the practice has been
challenged in the courts and (when conducted properly and with probable cause)
has been upheld.
I myself have mixed reactions. Conducted properly, it was
legal. I always felt that this was a
program that required the highest degree of professionalism and skill. One bad
incident and we risked losing the authority altogether. While I am not judging
the Cincinnati incident, it seems to reinforce the knowledge we always possessed
that if you abuse a power, you will lose that power.
And let’s be honest: No matter how diplomatically an agent
conducts himself/herself, any innocent traveler who experiences this will leave
with a bad taste in their mouth. At any rate, considering the publicity this
case has caused, I wanted to present as accurate a picture of the practice as I
could given the fact that I am now three decades removed from being in drug law
enforcement. This enforcement practice has led to countless seizures of drugs
and money linked to the drug traffic, but all it takes is one unfortunate
encounter to put it at risk of being shut down.
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