Federal/state drug task forces were established in the United States in the early 1970s. The 1986 Anti-Drug Abuse Act institutionalized the DEA Task Force Program which has led to thousands of joint federal/state task forces being established in every state to combat drug trafficking.
In fact, in 2016 there were 271 state/local drug task forces operating under the DEA’s State and Local Task Force Program. There were more than 2,200 DEA special agents and 2,500 state and local officers participating in these task forces.
DEA Task Forces Breeding Ground for Misconduct
Task forces sound good in agency press releases. They immediately create an impression of specialized law enforcement doing a dangerous job to protect the community. But behind these impressions is a breeding ground for police misconduct.
In July 2017, the Washington Post reported that the U.S. Justice Department had been involved in a year-long investigation of a New Orleans police drug task force that was “peddling painkillers, threatening confidential informants and swiping cash during drug raids.” The Post said that the DEA had had information for at least a decade that many state and local drug task forces like the one in New Orleans “were playing by their own rules, disregarding DEA policies and at times profiting from an illicit drug trade.”
Fed/State/Local Task Forces Disregard Law
In 2016, the Kanawha County, West Virginia Sheriff’s Department operated the Metropolitan Drug Enforcement Network Team (“MDENT”)—a task force that involved local law enforcement agencies in Kanawha Valley. This Charleston task force worked drug cases involving various local agencies in coordination with federal agencies. One of those cases involved Brian D. Terry.
In a November 30, 2018 decision, the Fourth Circuit Court of Appeals said the investigation began after a MDENT officer found residue of “drugs in trash placed outside of a residence associated with Terry.” With this evidence and other information, a MDENT officer sought and secured a warrant for Terry’s residence.
Illegal Placement of GPS Tracking Device
On April 18, 2016, MDENT agents observed Terry exit his residence and drive away in a vehicle owned by Tamara Moore. The agents followed him to a local store where Corporal D.C. Johnson approached the vehicle and reportedly smelled marijuana. Terry turned over a small amount of marijuana to Johnson after which the officer searched the vehicle finding nothing else. While Terry was distracted by his interactions with Johnson, the appeals court said “another MDENT agent surreptitiously placed a GPS tracker onto the KIA even though none of the agents had obtained a warrant to do so.”
Officers Mislead Magistrate Judge
After the vehicle stop, Terry accompanied the MDENT agents back to his residence where a search did not produce any drugs or any other incriminating evidence of criminal wrongdoing. It was only after this residence search that officer Johnson sought and secured a warrant from a local magistrate to “ping” Terry’s cellphone and to place the GPS tracker on Moore’s vehicle. The Fourth Circuit noted that Johnson did not inform the magistrate that agents had already placed the GPS tracker on the vehicle.
Two days after the warrantless GPS tracker had been placed on the Moore vehicle, MDENT agents used the data from the device to track the vehicle to Columbus, Ohio. The agents suspected Terry had made the trip to Columbus to pick up drugs. The agents were not picking up a “ping” from Terry’s cellphone indicating he had disconnected it.
Agents Use GPS to Stop for Speeding
MDENT agents tracked the vehicle back to West Virginia after which they began to follow it. The agents were looking for any probable cause evidence to stop the vehicle. They got it through a process called “pacing” to determine that the vehicle was traveling five miles an hour above the posted speed limit. The GPS tracker confirmed the pacing data. The officers pulled the vehicle over. Tamara Moore was the driver of the vehicle and Terry was a passenger.
While Officer Johnson wrote Moore a warning ticket, another MDENT agent spoke with Terry. The agent then told Johnson that he smelled marijuana. Johnson ordered Terry out of the vehicle and conducted a “pat down” of him. Johnson and the other agent found 195.5 grams of methamphetamine and 2.9 grams of marijuana.
Terry was arrested, and the U.S. Attorney’s Office for the Southern District of West Virginia charged him with possession with intent to distribute an unspecified quantity of methamphetamine. Terry’s attorney immediately moved to have the methamphetamine and any other evidence associated with the traffic stop suppressed based on the legal premise that the warrantless placement of the GPS tracker violated the Fourth Amendment.
Officer Admits Breaking Law
At the suppression hearing, Officer Johnson told the court that he “knew a warrant was required to place a GPS tracking device on the Kia.” He said it had been a practice of MDENT agents to place GPS trackers on vehicles of drug suspects without a warrant.
Based on this testimony, the district court found that the conduct of MDENT’s agents in the Terry investigation “constituted a flagrant constitutional violation.” The court, however, concluded it had no choice but to deny the motion to suppress because Terry did not have “standing” to challenge the search since he was not the driver of the vehicle. The court reasoned that while Terry had “a possessory interest” in the vehicle when the GPS tracker was attached to it, he “had relinquished control over the Kia on the day of the traffic stop.”
Fruit of Poisonous Tree
The Fourth Circuit reversed the district court’s ruling. The appeals court said the lower court’s ruling ignored the “basic principle underlying the ‘fruit of the poisonous tree’ doctrine: [that] defendants may seek to suppress not only evidence obtained as a direct result of an illegal search but also evidence later discovered as a result of that search.”
The appeals court ruled that Terry’s conviction had to be reverse because “the constitutional violation was flagrant” and the Fourth Amendment’s “exclusionary rule exists to deter [the kind of] police misconduct” exhibited in the Terry investigation. The court added:
“… The undisputed evidence here amply supports the district court’s conclusion that the agents’ misconduct was not simply the result of a mistake or ignorance of the law but instead constituted a flagrant disregard for the well-established warrant requirement set forth by the Supreme Court …”
The Fourth Circuit concluded its blistering opinion with the observation that to hold the evidence seized from Terry during the traffic stop was not “fruit of the poisonous tree” would allow “the government to disregard a constitutional requirement simply by using an illegal GPS search long enough to observe a minor traffic violation” before executing a warrant.
Agents Flagrantly Disregard Law to Make Case
And therein lies the real danger of unregulated, improperly supervised drug task forces: agents in the field too often flagrantly disregard the rule of law, either by knowingly violating constitutional requirements as they did in the Terry case or by becoming as criminal and corrupt as those they are policing as those reported about in the Washington Post.
Task forces of every stripe have significantly contributed to the increasing and quite alarming militarization of the nation’s police forces (here, here, here and here).
And today we have a president who believes the Attorney General of the United States should protect him from any investigation into his criminal wrongdoing and that the FBI should be his private police force to investigate and arrest his political enemies.
In other words, the President of the United States over the past two years has advocated police misconduct over the rule of law.
At least in this one instance in the Terry case the Fourth Circuit Court of Appeals had the courage to declare that police misconduct must not only be recognized but addressed as well.
The rule of law must always prevail, especially in the times in which we live.