In Horrifying Detail, Women Accuse US Customs Officers of Invasive Body Searches

By Susan Ferriss, Center for Public Integrity

19 August 18

 

ameika Lovell was retrieving luggage at New York’s John F. Kennedy International Airport when Customs and Border Protection officers detained her for a random search. It was Nov. 27, 2016, the Sunday after Thanksgiving, and the school counselor from Long Island had just returned from a short Jamaica vacation. Lovell, who is black, had been stopped before, but this time a CBP supervisor began asking questions she hadn’t heard previously.

“Don’t you think you’re spending too much money traveling?” Lovell, 34, recalls a CBP supervisor asking.

What happened next is the subject of a harrowing lawsuit pending in U.S. District Court for the Eastern District of New York. Inside a secure room, Lovell’s litigation alleges, a female CBP officer searched Lovell’s belongings, presumably for illegal drugs, and asked if she was using a tampon or sanitary pad. The question upset her, but Lovell replied “no” and complied when told to remove her shoes, lift her arms and spread her legs.

As a second female officer observed, hand on her firearm, the lawsuit says, the first officer touched Lovell “from head to toe” before ordering her to squat. Lovell was clothed, but the lawsuit claims that the officer squeezed Lovell’s breasts, and, “placed her right hand into [Lovell’s] pants ‘forcibly’ inserting four gloved fingers into plaintiff’s vagina” before parting Lovell’s buttocks “for viewing.”

Lovell has accused CBP officers of violating her constitutional rights and sidestepping the agency’s rules prohibiting officers from conducting invasive body searches. Her case is one of at least 11 since 2011 examined by the Center for Public Integrity. Each raises unsettling questions about authorities’ considerable power to detain people at the nation’s 328 ports of entry, underscoring critics’ concerns about CBP officer accountability as the Trump administration seeks to expand the agency and significantly enhance immigration enforcement.

These alleged invasive searches “should give everyone pause,” said Adriana Piñon, staff attorney with the American Civil Liberties Union in Texas. “The touchstone of the Fourth Amendment is reasonableness,” she said. The Constitution, she said, protects people from having their bodies searched based “on a whim.”

The government has settled some of these cases before they could go to trial, thus avoiding potentially incriminating testimony from CBP officers accused of wrongdoing. Six of the lawsuits resulted in financial settlements costing taxpayers more than $1.2 million. Others are pending. One claim lost in a jury trial.

In Lovell’s case, the Justice Department has sought to dismiss CBP and the individual officers, but not the U.S. government, as defendants. CBP officials declined to comment on any specific litigation, settled or pending. A spokesman said that misconduct is taken “seriously” and that “our mission is to facilitate legitimate travel and trade while preventing illicit drugs, weapons or other contraband from entering our country.”

If they can justify suspicions, federal officers at U.S. ports of entry are authorized, without the need for warrants, to require some disrobing for genital and rectal inspections, and monitored bowel movements to check for drugs, according to a CBP handbook. At the same time, the detention-and-search handbook instructs officers to record a solid justification for every step beyond a frisk, and to respect detainees’ dignity and “freedom from unreasonable searches.” The handbook also warns against what could be considered a “visual or physical intrusion” into body cavities.

The women who’ve brought these lawsuits, including two minor girls, say CBP officers subjected them to indignities — such as strip searches while menstruating and prohibited genital probing — despite finding no contraband. Four women further allege they were handcuffed and transported to hospitals where, against their will, one underwent a pelvic exam and X-rays. In one of the cases, the woman’s lawsuit asserts she was intravenously drugged at the hospital, according to lawsuits.

Such invasive medical procedures require a detainee’s consent or a warrant. In two cases, the plaintiffs say they were billed.

A lawsuit filed in San Diego federal court on behalf of a Hispanic 16-year-old identified as C.R. alleges CBP strip-searched her last September as she and her adult sisters returned from a family visit to Mexico through the San Ysidro pedestrian port. The sisters were flagged after a false drug-sniffing dog alert, the lawsuit asserts. Female officers took C.R. aside and allegedly told the tearful girl to disrobe, hand over a sanitary pad, and squat and cough “while officers probed and shined a flashlight at her vaginal and anal areas,” the lawsuit says.

Justice Department attorneys representing officers have filed to dismiss C.R.’s suit, arguing that it was not filed properly.

The CBP handbook says officers should “weigh all factors” before an officer, who should be of the same gender, searches a minor. Officers are told to seek parental consent for a strip-search and refrain from touching or inspecting a minor’s body cavities. If a parent refuses consent, officers should seek advice from CBP legal counsel.

C.R.’s alleged experience is one of three alleged strip-searches at the San Diego border crossing involving Hispanic minors and a 42-year-old Hispanic woman reported since last September to the American Friends Service Committee, a rights group.

Records reviewed by the Center for Public Integrity show that in 2015 the U.S. government settled a lawsuit for $500,000 with a woman who said she was subjected to a prolonged ordeal that began as she entered the Otay Mesa port and continued after she was handcuffed and transferred 10 miles away to the San Ysidro port.

CBP officers mistook the woman, who had been volunteering at a Mexican orphanage, for someone of the same name who was wanted on a drug arrest warrant issued in California’s Contra Costa County. The woman, who was 52, said that even though some officers suspected she was not the person named in the warrant, she was lined up with three other female detainees, invasively searched by a CBP officer and later driven to a county jail.

“This officer squeezed my breasts hard and went into my underwear and in my vagina with her finger. She did this with the same glove that she did three other women before me!!” the woman later wrote in an email to a CBP official, according to her lawsuit.

“Plaintiff was visibly upset, crying and professing her innocence during and after the search,” the suit alleges. The officers allegedly called her a “basket case,” it says.

According to the lawsuit, after 20 minutes the same female officer allegedly repeated a vaginal search.

Contra Costa County officials allegedly included erroneous information on the arrest warrant and advised CBP to detain the woman overnight. The county settled with the woman for another payment of $450,000.

'Professionalism and courtesy'

Shortly after he took office in 2017, President Trump told officials at the Department of Homeland Security that he thought border enforcement officers hadn’t been able to do their jobs properly, and that from now on, he expected laws “to be enforced and enforced strongly.” He aimed to hire 5,000 more Border Patrol agents, who work under CBP, but that goal hasn’t been met because of staff attrition and concerns in Congress about funding.

CBP declined to discuss whether the accused officers named in settled or pending lawsuits have been investigated, absolved, disciplined, retrained, fired or moved to other jobs. The agency referred questions to the Justice Department, where officials also declined to comment.

CBP also refused to discuss the rate at which officers discover drugs secreted in travelers’ bodies. At a May 30 congressional hearing focused on opioid seizures at the border, CBP’s acting field director for Tucson, Guadalupe Ramirez, told lawmakers that officers “regularly find drugs concealed in body cavities.”

In a written statement, a spokesman for the agency said CBP has “policies, procedures and training in place to ensure officers and agents treat travelers and those in custody with professionalism and courtesy, while protecting the civil rights, civil liberties, and well-being of every individual with whom we interact.

“Unfortunately,” it says, “CBP officers encounter persons attempting to smuggle narcotics into the United States internally, a very dangerous smuggling method that comes with the risk of great personal harm.”

Lawyers representing the women who have sued the government say these relatively modest number of suits should not be considered a measure of how frequently detained people are invasively searched. “Instances like these are traumatic and people feel sexually assaulted. Filing a lawsuit requires detailing a significantly painful incident in a public forum,” said Piñon, of the ACLU in Texas.

A person’s ethnicity is not grounds for a search, but lawyers who have represented travelers assert that officers do seem to consider factors such as travel to certain countries, unusual travel patterns and behavior that seems evasive or suspicious. Canine contraband alerts also are a factor — but it’s not uncommon for them to prove false, the ACLU has argued.

Officers’ ability to initiate warrantless searches on “reasonable suspicion,” a lower threshold than “probable cause,” is grounded in arguments that U.S. ports of entry merit greater scrutiny. Additionally, a 1985 Supreme Court ruling, U.S. vs. Montoya, found that a rectal exam revealing cocaine-filled balloons did not violate a woman’s Fourth Amendment rights because officers considered various factors and had “reasonable” concerns that she had concealed drugs.

Settled civil suits accusing officers of failing to wisely act on suspicions don’t establish guilt or criminal liability. But documents do reveal how searches escalated, and how attorneys attempted to defend CBP before settling. In an Arizona case, Justice Department attorneys argued that the detention handbook was simply “guidance” for CBP officers.

A 24-hour ordeal

A Pennsylvania case also illustrates how CBP scrutiny of a female traveler led to graphic allegations of abuse. An African American woman, 36, flew into Philadelphia International Airport from a one-day trip to Punta Cana, the Dominican Republic, on Dec. 4, 2012 — and allegedly suffered through a 24-hour ordeal in a fruitless search for hidden drugs, her 2015 lawsuit says.

The woman’s complaint against CBP defendants was settled in 2017 for $189,500, paid by the U.S. Treasury Department, government records show.

CBP officers intercepted the woman at customs and took her to a screening room to search her belongings and allegedly interrogate her about suspicions that her short trip might indicate drug smuggling. The woman allegedly explained that she travels often on airline employee discounts available to family members.

Her suit says that she was told she would be released after a pat-down. But after seven hours — and attempts to get her to consent to an X-ray — the woman was allegedly handcuffed, shackled and “dragged” from the airport and taken to a hospital, court documents say.

Officers “provided false and misleading information” to staff suggesting she was packing drugs, the woman’s suit alleges, and that she would have to remain in a room “until she had urinated and defecated into a plastic container in the presence of an officer.”

After a staff shift change, the suit alleges, a nurse announced that the woman’s heart rate was elevated, and doctors “involuntarily” admitted her due to “possible drug toxicity.”

According to the suit, the woman was tied to a bed with restraints, stripped naked by medical staff and had a tampon removed from her vagina during a body search. In court filings, the hospital does not deny conducting an exam, administering sedatives intravenously, catheterizing the woman to collect urine, and conducting X-rays and abdominal and pelvic CT scans.

“The agents had no basis for their suspicion,” her suit says. “Medical personnel confirmed what [the plaintiff] had told CBP agents from the moment she encountered them: that she had no contraband on her person.”

Justice Department attorneys, however, argue in a filing that the “federal defendants deny that CBP officers had no basis for their suspicions,” and that the Dominican Republic is “a known illegal drug source country.” CBP officers, the response alleges, asked the woman to “consent to an X-ray that would expeditiously determine” if drugs were inside her and “explored whether to seek a warrant” but did not because she was involuntarily admitted to the hospital.

“Plaintiff was afforded all constitutional rights and protections to which she was entitled at all material times to the incidents alleged,” the response also argues.

After she woke from sedation, the woman’s suit asserts, she was driven back to the airport and suffered a vehicle accident while driving her car.

Mercy Fitzgerald Hospital in Darby, Pa., where the medical procedures were conducted, declined to comment on the case, but said “we strive to honor the sacredness and dignity of every person.” Documents show the hospital system agreed to close the case for what the woman’s attorney said is an undisclosed settlement.

Racial profiling 'absolutely constant'

Racial profiling is another concern. A 1997 lawsuit on behalf of 87 black women alleged racial profiling and illegal strip-searches and pat-downs by customs officers at Chicago’s O’Hare International Airport. The suit was settled in 2006 for $1.9 million.

In 2000, the Government Accountability Office found that two years earlier, black American women were nine times more likely than white counterparts to be X-rayed by customs officers after airport frisking, although they were less than half as likely to be found with contraband compared with white women also X-rayed.

“The racial profiling issue was absolutely constant,” said Gil Kerlikowske, a CBP commissioner during the Obama administration. Kerlikowske said he tried to improve a complaint system and began regular meetings with the ACLU and other rights groups.

Piñon, of the ACLU, said: “I worry that the cases we represent underestimate how often this [invasive searching] occurs.”

Government records don’t address such concerns. Within the Treasury Department database that documents settlement amounts, three lawsuits alleging unconstitutional searches are listed as “false arrest” claims and three are labeled “miscellaneous.” Records also show scores of false-arrest or miscellaneous complaints filed directly and settled with CBP and Immigration and Customs Enforcement (ICE) over the past decade. Such settlements leave no publicly accessible court trail revealing precisely what was alleged.

Timothy Scott, the lawyer who represented the woman mistakenly detained in San Diego, said many immigrants are “from countries where there’s no profit in criticizing authorities. . . . There’s no doubt in my mind that this [invasive searching] is underreported.”

Freedom for Immigrants, a volunteer group that aids detained immigrants, obtained documents alleging rough treatment in ICE detention centers between 2010 and 2014, including claims of guards allegedly ripping clothes off detainees if they refused to disrobe.

In a statement, ICE said it has “already initiated several steps to bolster the division’s quality assurance process” and plans more detention inspections this year.

In New York, Lovell is just beginning her legal journey. She said she understands why people hesitate to publicize their grievances about getting searched. “Even though you are the victim,” she said, “there’s always that shadow of a doubt that people have about you.”

Lovell was so shaken by her experience, she said, that she was unsure whether she could assert her rights. “I didn’t know if what they were doing,” she said, “was legal or not.”