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January 2014 - Stop, Frisk, and ... Search?

by Richard W. Millar, Jr.

In connection with the New York mayoralty race, there has been a fair amount of discussion in the media about the constitutional and practical effects of New York City’s “stop and frisk” policing methods. Having visited New York under different mayors and having seen what has been a very different city at different times, I have some views on the subject. That said, New York’s policies at their most strident do not hold a candle to some place called Deming, New Mexico.

One David Eckert has filed a deprivation of civil rights lawsuit in federal court in New Mexico against the city of Deming, Deming police officers, Hidalgo County Sheriff’s officers, a Deputy District Attorney, two doctors, and a medical clinic. If only half of the allegations are true, Deming, whatever its virtues, is not a place you want to visit. At least by car.

According to the twenty-nine page complaint, this is what happened. On January 12, 2013, Mr. Eckert was stopped by the Deming police in the Walmart parking lot for failing to yield at a stop sign. He was ordered out of his car and patted down. More officers arrived and a police dog named Leo “allegedly alerted to the driver’s seat.” (For some inexplicable reason that reminds me of a television cartoon my kids used to watch when I was in law school which featured a detective dog whose slogan was “Nose, nose, anything goes,” but I digress.) A couple of the officers then told the original ticketing officer that Mr. Eckert “was known” in the county for warehousing drugs where the sun don’t shine.

At any rate, that was, if you will excuse the pun, the beginning of the end.

Mr. Eckert was handcuffed and taken to the Deming Police Station. His car was seized and searched.

Nothing was found.

A search warrant for Mr. Eckert’s rear end was obtained. He was taken to the Deming Emergency Room but the attending physician, to his enduring credit, refused to conduct the “search” on the grounds it was unethical. The officers found a more pliant doctor at another emergency room in an adjoining county. There an abdominal x-ray was ordered.

Nothing was found.

Then two digital searches were performed, finding nothing other than what you might expect to be found under, shall we say, natural conditions.

An enema was then given, and the results searched. (Who signs up for these jobs?)

Nothing unexpected was found.

Another enema was given and another “stool search” performed. (Is this where the phrase “stool pigeon” originated?) But again the results were clear, at least of narcotics.

I know you are now in the twilight of disbelief, but according to the complaint, a third enema was given and, again, nothing was found.

Then the doctor x-rayed Mr. Eckert’s chest, lungs, and heart. Same result: nothing.

Undeterred, the constabulary ordered a colonoscopy. A surgical team was gathered and the colonoscopy completed.

Nothing was found.

At this point, I gather, the doctors and the police threw in the towel, metaphorically speaking at least, and Mr. Eckert, considerably lighter and possibly glowing from all the x-rays, was finally released.

If all that wasn’t enough, in what might be described as piling on, the “defendant Gila Regional has billed Plaintiff for the ‘services’ it provided at the request of law enforcement,” and Mr. Eckert “still receives medical bills for thousands of dollars.” (I don’t want to be the billing clerk who has to explain those bills to a jury, if I may have a final digression.)

As someone whose age is such that colonoscopies are de rigueur, I have heard rumblings that Medicare changes are afoot under which Medicare will no longer pay for colonoscopies every five years, as most doctors recommend, but will require ten years between procedures. If indeed that becomes the new rule to which my doctor has to abide, I am going to fly to Deming, rent a car, and blow through the first stop sign I see. I don’t see how Medicare could possibly turn down a procedure ordered by law enforcement.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at

Orange County Bar Association | P.O. Box 6130 | Newport Beach, CA 92658 | 949.440.6700 |
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