Last June, the Ninth Circuit Court of Appeals placed its imprimatur on a stunt pulled by the DEA and Oregon's Deschutes County Sheriff's Department: The police staged an elaborate phony carjacking in order to seize a car from a suspected drug courier. The driver and his companion were deposited in a nearby hotel while the police rummaged through the vehicle, eventually finding a substantial quantity of narcotics.
Oh, sure: The police could have obtained a warrant to search the vehicle based on evidence they had already obtained.* But this would have deprived them of the chance to indulge their adolescent desire to play “Punk the Perp.”
While a three-judge panel from the Ninth Circuit Court insisted that the search resulting from this elaborate deception didn't violate the Fourth Amendment, Judge Raymond C. Fisher did express some misgivings over the precedent being set. “I do not ... mean to endorse this police action as a model for future creative seizures,” caviled Fisher in his concurring opinion.
“Why not?” I asked in reply to Fisher's limp attempt at pre-emptive damage control. “If this operation [involving a staged carjacking] was utterly copasetic from a constitutional point of view, why shouldn't it serve as the template for countless others just like it? In any case, Ray baby, it's too late: You and your comrades have just green-lit countless similar projects to be carried out by the Feds and their local franchisees, who are in pre-production as we speak: Storylines are being broken, scripts are taking form, and auditions are underway, casting couches are being defiled....”
Actually, the puerile little deceptions I described were already being staged before last June's decision. One of them involved Ben Peech, a 10-year veteran of the Wyoming Highway Patrol and president of the State Highway Patrol Association.
"Good morning, Ma'am. I'm conducting a pretext stop in the hope of finding something in your vehicle worth confiscating."
Last April 7, Peech phoned in a bogus report to REDDI (Report Every Drunk Driver Immediately), Wyoming's DUI hotline, to create an excuse for him to be on patrol at 3 a.m. Wyoming State Troopers generally don't operate after midnight, and Peech was concerned that the subjects of a sting he had arranged with a “confidential informant” from the DEA might be scared away.
To maintain the pretense, Peech had his DEA colleague phone in a second phony DUI tip. He also urged the REDDI dispatcher to omit his name from the call log – a request the dispatcher refused to grant.
At 3 a.m., Peech stopped a Dodge pickup driven by Rusty Boschee of Elk Grove, California. At the time, the vehicle was traveling four miles an hour over the posted 75 mph limit on I-80. A search turned up about $3.3 million in cash and several cell phones. Boschee and his passenger denied that the money belonged to them, but emphasized the obvious point that its rightful owner would be upset if it didn't arrive.
Although no narcotics evidence was found, Peech arrested Boschee and his passenger and confiscated the money. The driver and his companion were later released, but the Feds announced their intention to “forfeit” -- that is, steal – the cash. (A recent federal court decision -- .pdf -- held that “possession of a large sum of money” by a motorist “is `strong evidence' of a connection to drug activity,” and thus grounds for summary forfeiture.)
So what happened here was this: Trooper Peech committed at least three crimes – making a false DUI report, suborning a second, and attempting to induce the dispatcher to submit a bogus call log – in order to create a pretext for a traffic stop. And to defend this fraud, Peech has invoked the same Ninth Circuit Court decision mentioned above.
This incident took place last April. On October 9, Peech was fired by the Wyoming Highway Patrol, which described him of “flagrant” misconduct. In the termination letter to Peech, Highway Patrol Administrator Col. Sam Powell wrote: “Your actions discredited you and the [Highway Patrol] and the REDDI program.”
For his part, Peech insists that the firing had nothing to do with misconduct; rather, it was an act of retaliation for his involvement in creating a local lodge of the Fraternal Order of Police. He points to the time lag separating his offense from his termination as evidence of bad faith.
“[T]here is no doubt in my mind at all that it was retaliatory,” complains Peech. “It is totally unheard of for something to come back from that far back.”
What – you mean there was an ulterior motive at work, and that the police officials who fired Peech acted on a pretext? But police never do that kind of thing.
Interestingly, both Peech and veteran police experts agree that fraud and deception are perfectly acceptable law enforcement tools. Peech's mistake, apparently, was using those tools on a freelance basis, rather than obtaining appropriate permission from his supervisor.
“People get arrested for making false reports,” observed Edward Mamet, a law enforcement consultant who spent 40 years with the NYPD. “ If he did that without supervisory approval, there's no excuse for that.” (Emphasis added)
Retired police chief Andrew J. Scott, who also works as a consultant, insists that Peech's mini-crime-spree displayed “initiative,” but faults the Trooper for “not passing this on to his supervisor and getting approval.”
As far as Peech is concerned, the entire affair is pointless. Everything he did must be appropriate, 'cause it's just what the cops do on TV.
“The fact of the matter is, and everyone knows it from watching TV, the cops are allowed to use subterfuge and things like that to protect informants in an investigation,” Peech insists.
In the action movie unspooling in the very tiny theater of Ben Peech's mind, he's the tough but honest cop, a loose cannon who plays by his own rules.
Yeah, sure: He has to bend the law every now and then, but he stays true to his own moral compass.
Yeah, this is harsh -- but we're at war with crime, and sometimes corners just have to be cut.
Sometimes that means he gets cross-wise with the suits and the desk-bound supervisors who have forgotten what it's like out there: Nine times in the past ten years, Peech has been reprimanded for various infractions; he earned a written reprimand for firing his shotgun into the floorboards of his patrol car, and was briefly suspended on two other occasions for damaging the vehicle.
But that's just how TROOPER PEECH rolls, man. And you better hit your knees each night in abject gratitude that there are guys like him on the Thin Blue Line!
... or something like that.
So now that refugee from a direct-to-video action flick has been fired for failure to get official sanction for his acts of official fraud. Doesn't this mean that the money stolen from Boschee's truck should be returned?
“We're not going to stop pursuing the forfeiture action at this time,” sniffed John Powell, a spokesman for the U.S. Attorney in Wyoming.
Which is to say: The Feds consider themselves entitled to keep that cash, despite the fact that the only documented crimes in this entire episode were those committed by the State Trooper who seized it.
[Thanks to the anonymous fact-checker on the comments thread for correcting my error regarding the location of Deschutes County: It is in Oregon, rather than in Washington, as I had mistakenly written.]
Good Cop News
Ramon Perez, an exemplary police officer who was fired by the Austin, Texas Police Department for refusing to use his Taser needlessly against a non-violent, elderly suspect, has been named "Civil Libertarian of the Year" by the Central Texas chapter of the American Civil Liberties Union.
The award recognizes Perez "for his courage, bravery and unwavering commitment to protect the Constitution and serve with integrity."
Officer Perez, a Christian lay minister of conservative theological and political views, was deemed to be morally unsuitable for police work because of his refusal to carry out a clearly illegal and unconstitutional order from a superior. The suspect in question was taken into custody without violence, and the use of a Taser in that situation would have violated the APD's explicit departmental policy.
A clinical psychologist working for the department, who examined Perez on a pretext (there's that word again!), insisted that he had an excessively "well-developed set of personal beliefs ... based primarily on his religious beliefs" that detracted from his ability to perform as expected -- which, in this specific case, meant that he would follow the orders of a superior, rather than the Constitution and the law.
Officer Perez informs me that the lawsuit he has filed against the department "is gaining momentum. We expect to go to Fedral Court Western District this June."
One Last Thing...
Just a few days ago I made this prediction:
"Write this down in ink: Ron Paul, who harbors no detectable rancor toward anyone of woman born and goes to exceptional lengths to treat everyone with respect, will be smeared as a `hater.' This is chiefly because of the genuine hatred – born out of fear – he inspires in many who have made their peace with the Power Elite. Their reasoning – if we can torture that word into applying here – would be this: `Obviously he's a hateful man, or else we wouldn't hate him so.'”
No, my middle initial doesn't stand for "Nostradamus"; it wasn't necessary to be some sort of seer to foretell what has since come to pass.
What is really interesting is to see how the larger prediction in that essay -- that Ron Paul's supporters would be traduced as an "America-hating" Fifth Column -- was fulfilled, and that the chief vessel of this libel is that flatigious ass-hat Glenn Beck, who denounces us (I'm hardly an undecided voter) as a "domestic enemy" that might be dealt with by the military.
*My point about a search warrant is offered with the tacit disclaimer – herewith made explicit – that all enforcement actions in the so-called “War on Drugs” are constitutionally indefensible, since the counter-narcotics enterprise itself is fundamentally illegitimate.
Dum spiro, pugno!