This is a guest post by Emanuel Barling, Jr., Esq. (AKA Mannie Barling). It is a really interesting view of what has become a very hot topic after the Snowden revelations concerning the activities of the various three letter organizations that ‘keep us safe’. Simon Barrett
NSA and DEA invade a U.S. citizen’s life with a warrantless search and eavesdrop on telephone calls in violation of the First Amendment of the U.S. Constitution. A true story.
After weeks and weeks of constant media coverage of the NSA’s eavesdropping on Americans, I came face to face with a graphic example of what happens to the average American citizen when he is confronted with a “false positive” reaction by a drug-sniffing enforcement dog at an airport while on the way to a business meeting.
It started with a simple lunch invitation. I expected to enjoy my cheeseburger and laugh a little while avoiding all serious conversation about Syria and the Middle East. To my surprise, my lunch guest said to me, “You better put on your seat belt for this story.”
The story sounded more like a trip down the rabbit hole with Alice than a simple business trip to Jacksonville, Florida. To protect the innocent, I will rename my friend “Tom.” Tom is an outstanding lawyer in his early forties. Not the offensive type I deal with often. Just a really good guy who works hard and cares about his clients.
Well, Tom had to go to Jacksonville to take a deposition in a business case and planned to leave on a Saturday so he would have time to rest and prepare for Monday’s deposition. He booked a flight from LAX to Denver with a stopover and connecting flight to Jacksonville. It sounded so simple until the Captain announced there were lighting storms and heavy rain over Denver Airport and the plane was being diverted to Colorado Springs.
Like all airplane delays, the Captain announced that it would be only a short stop and food would be served. To Tom’s surprise, the short layover lasted more than three hours. At some point, the plane ran out of food and drinks so the Captain got permission for the passengers to disembark and get food. But, Southwest Airlines did not have landing privileges in Colorado Springs, so the passengers had to disembark in a thunder storm and walk a long way to the terminal in a deluge of rain.
Finally after more than a three-hour-wait, the plane boarded and left for the short flight north to Denver. Of course, his connecting flight had left without him. After more than an hour in line, Southwest Airlines could not find Tom a place to stay. So, Tom took a cab from the airport to Denver, which is about 50 miles and an $85.00 fee without a tip. Tom found a place to stay and Southwest booked Tom on the same flight he missed for the next day. Tom was thankful that he had included another day of travel so he would not be pressed too much for time.
I forgot to mention that Tom had shipped a case of documents from his office to his hotel in Jacksonville because it was about 28 pounds and too heavy to carry on the plane. You just can’t be a lawyer anymore without at least twenty pounds of documents. So, Tom decided to call the hotel and let them know why he didn’t get to his reservation in time and make certain he did not lose his room. Of course, Jacksonville in late August is hardly the place where businessmen and tourists go to relax, so he was in no danger of losing his reservation.
After confirming his reservations, Tom asked, “Did my box of documents arrive?” The hotel employee said that the hotel had not received a box for him. Tom immediately shifted into panic mode because a lawyer cannot conduct a meaningful deposition without documents. Tom asked the employee to check with the manager who confirmed, after ten minutes on hold, that no box of anything had arrived for Tom. Tom became angry and upset and called the hotel manager directly and was told there was no box for him.
Tom used his lap top to go online to check his FedEx account which provided the name of the person who signed for the package. Tom called the hotel in Jacksonville again and gave the manager the name of the person who signed the receipt. The hotel manager told him that the person who signed for the box was not an employee of the hotel. Tom found this even more confusing and fretted that his documents were lost forever. Fortunately he had scanned the documents onto his computer in case of an emergency.
By now Tom was a combination of upset, confused and angry. Add a few cocktails at the bar and he was furious. As Tom sat at the bar fuming while trying to think of what could happen to the box, he decided to call FedEx again. He was immediately re-directed offshore to an operator who read FedEx’s policy of running a tracer from a cue card. When Tom asked how long before they would know where the box was, the reply was three or four days. The operator suggested that Tom call the local FedEx office when he arrived at his destination. Tom realized that there was nothing he could do until he got to Jacksonville.
After the phone call to the hotel, Tom noticed on his cell phone that he had a message on his voice mail. Tom dialed his voice mail and found one message that started, “This John. I am a DEA agent and I need to talk to you.” Tom immediately started thinking about which one of his friends was running a prank on him. Naturally, I was high on that list. Finally, said the heck with it and ordered another drink.
Shortly thereafter, his cell phone rang and it was the same voice as the one on his voice mail saying the same words. So when the caller was finished identifying himself as a DEA agent, Tom said, “Is this a prank because today is not a good day to play a prank on me.” John quickly reassured him that he was a DEA agent and Tom recognized it as the person who signed for his box of documents. He told Tom he would see that he got his documents when he got to Jacksonville. The rest of the journey was uneventful.
When Tom arrived at his hotel, he registered immediately. He turned around and a hotel employee said to him that there were people waiting for him in the bar. When Tom walked into the bar, a person immediately identified him and said, “Tom, please join us.” So Tom sat down and after checking the ID’s of the two agents was satisfied they were genuine DEA agents. One agent, a female, was in scruffy attire and apologized because she was working undercover.
John explained that a drug-sniffing dog at LAX had detected drugs in the box and the package was confiscated by the DEA and he had to sign for it. Tom said, “I guess you know by now there were no drugs in it.” John replied, there were no drugs and started to apologize saying that it was a false-positive which happens one out a thousand times. Tom asked, “Did you really think I shipped a box with 28 pounds of cocaine in it? That’s absurd!” The DEA agent had no response.
Tom thinking like a lawyer, said, “I suppose you have read them all.” The DEA agent admitted that they had. Then, Tom had an epiphany and asked, “So I presume you listened into all of my cell phone calls.” The DEA said to him, “I can only say that it probably happened like that.”
It was clear to Tom that they had invaded his privacy and listened to all of his calls. Then, the DEA agent told Tom that they had checked him out and knew he was an upstanding citizen. As the conversation progressed, it was clear to Tom that they had researched everything in his life and probably looked at his birth certificate. He was amazed at how much they learned about him from the time he left Los Angeles on a Saturday afternoon to his afternoon arrival in Jacksonville on Sunday.
I guess this gives us an accurate picture of what happens to the average citizen when the government makes a simple mistake. Oh, by the way, the story is not over. When Tom opened the box of documents, it was clear that the documents had been copied and he was given the copies, not the originals, because his numbered bate stamps were partially lost by the poor copying. For those who know little about depositions, each page of every document bears a stamped number and case identification to make certain that everything is included in the transcripts. It also makes it easier for lawyers to be specific in directing a witness to a particular page of interest.
Tom had to take his lap top with the scanned copies to Kinko’s to get the documents recopied after all that work in Los Angeles to number them and ship them to Jacksonville. Did the DEA offer to pay for the additional cost? Absolutely not!
So, the DEA now has a complete document file on Tom’s client without the client’s knowledge and consent. And, a complete dossier on Tom who is an upstanding citizen with not even a parking ticket to his name. Does anyone think they will destroy this information on Tom? Where will it be stored? Who will be permitted access to it? The CIA, the FBI, local police? Tom now bears the mark of the beast from a government agency.
Finally, when Tom went to check out of his hotel he asked if he could do a late checkout because he had a late flight. The clerk at the desk said no. About then the hotel manager seeing Tom, walked over and asked if his stay was all right. The manager was really there to apologize and told Tom that the DEA made him lie to Tom and tell him that no box arrived. So, when the hotel told Tom on Saturday night his box never arrived, they knew that they were lying to him also. The manager permitted Tom to check out late and sent a “comped” meal to his room as an apology. But, it is undeniable that the DEA coerced the hotel manager and an employee to lie to their guest and they complied.
When you read that the invasions of privacy are not really happening and that no one is easedropping on your telephone calls, be aware that this is not true. In Tom’s life, it only took one bad hair day for a drug-sniffing DEA dog to start the unfettered invasion of privacy that our government says will never happen. Tom was never accused of being a terrorist but was treated as if he were one.
It does not take much effort to think of an Alfred Hitchcock film where an innocent bystander gets caught up in intrigue and has to go on the run. What if the person of interest were not an upstanding citizen like Tom and had a previous arrest for pot smoking or a DUI. Would the DEA have treated him differently? How would the average person react to these invasions? How do we all feel about a hotel assisting the DEA without a warrant?
I am certain they would treat an American with any kind of blemish on his record with less respect and be quick to make assumptions that could cause that person to be incarcerated while they rummaged through that person’s life looking for some dirt.
I don’t want to sound paranoid. But how would you feel if the DEA, for 24 hours, decided you could be a major cog in an international drug ring? In Tom’s case, they suspended all of his constitutional rights in a blink. They eavesdropped, invaded his privacy, his client’s privacy and turned over Tom’s life like no government agency has been permitted to do in the history of our country. And they kept the originals of the warrantless search.
Is there anything safe from our government anymore? This can happen to anyone. It could happen to you.