5-04 Flawed Enforcement TF Report · • In some task forces, 98% of task force searches at traffic stops are discretionary searches where the officer searches the car with the driver’s

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Why drug task force highway interdiction violates rights, wastes tax dollars, and

fails to limit the availability of drugs in Texas

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The mission of the ACLU ofTexas is to defend and

enforce the Bill of Rights andAmerican civil liberties, and topreserve them for each genera-tion. The ACLU Foundation ofTexas is a 501(c)(3) first char-tered in San Antonio in 1936.

For More Information Contact:

PO Box 12905Austin, Texas, 78711

[email protected]

http://www.aclutx.orgExecutive Director:

Will Harrell

Report Author and Design:Scott Henson

with research and editorial assistance fromLauri Apple and Ann del Llano.

Acknowledgements

The author gratefully acknowledges edits andcomments from Ann del Llano, Lauri Apple, Kathy

Mitchell, Will Harrell, and Anjuli Verma while retainingfull responsibility for any errors or omissions.

This study was made possible by generous supportfrom the Open Society Institute, the JEHT Foundation,the ACLU National Drug Policy Litigation Project, and

the ACLU of Texas Police Accountability Project.

Texas’ system of regional narcotics task forces, financedthrough the federal Edward Byrne Memorial State andLocal Law Enforcement Assistance Program (“Byrne

grants”), has been a source of scandal and managementimbroglios over the last several years, most notoriously in thecase of the internationally publicized drug stings in Tulia.

ACLU studied these task forces’ traffic interdiction activities indepth. We found patterns of unnecessary searches, a failure toperform basic law enforcement functions, and a general lack ofoversight and accountability. ACLU also found that Byrne grantmoney can be spent on many other types of criminal justiceinitiatives besides narcotics task forces, some of which addressTexas’ most immediate criminal justice funding needs. Thisreport encourages state leaders to divert Byrne grant money tothose other, more desirable options.

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• Byrne-funded task forces are designed to fail because ofstructural flaws, misguided priorities, and fundamentallyunaccountable management and hiring arrangements.• Task forces perform searches at traffic stops much moreoften than regular police and sheriffs departments.• In some task forces, 98% of task force searches at trafficstops are discretionary searches where the officer searches thecar with the driver’s verbal “consent,” but has no other legalauthority to do so.• Texas law allowing arrests for fine-only-traffic offensescreates a coercive environment for discretionary so-called“consent searches.”• Unlike most traffic enforcement, up to 99% of traffic stopsby some task forces result in no citation. Along with the highratios of discretionary searches, this indicates task forceofficers in highway interdiction programs routinely trump upexcuses to stop drivers who are committing no crime.• Task forces were more likely to search blacks than whitesin eight of nine task forces that supplied sufficient data tocalculate search rates by race. Latinos were searched moreoften than whites by seven of nine task forces reporting racedata on searches.• The Texas Department of Public Safety (DPS) providedlittle guidance or oversight regarding racial profiling datacollection and analysis.• If it had reviewed task-force racial profiling data, DPSwould have discovered that task forces are violating DPSpolicy and possibly federal law.

Executive Summary:

�� • Byrne task forces are driven by budget pressures to pursueunreasonable traffic interdiction techniques so they cangenerate asset forfeiture income.

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As a result of this study, ACLU offers the following recommen-dations regarding management and oversight of Texas’ Byrne-grant funded regional narcotics task forces:

State

• The Governor should divert federal Byrne dollars to more

effective methods of combating drug abuse, and other Texaspriorities. Texas should quit using federal Byrne money fornarcotics task forces and spend it on treatment programs, drugcourts, homeland security, crime lab upgrades, evidence-basedlaw enforcement training or other allowable programs detailedon p. 5.

• If Byrne money is not diverted to other uses, DPS should

require task forces to report all Tier 1 and Tier 2 racial profilingdata for all stops to DPS as part of their outcome measures.

• Drug interdiction patrols should be limited to officers’ home

employing jurisdiction so that motorists are stopped by officerswho appear to be operating within their own jurisdiction, andcan protest their ticket, if necessary, to a nearby magistrate.

• The Texas Legislature should ban discretionary consent

searches statewide, or at least require officers to tell motoriststhey do not have to consent to a search.

• Alternatively, DPS should ban consent searches by task

force interdiction officers and state troopers.

• Task force asset forfeiture income should be divided among

the general funds of participating counties and cities, ordesignated to help fund local public schools.

Federal

• Multijurisdictional narcotics task forces should be elimi-

nated from the list of allowable funding items for Byrne grantsor any successor program.

• Alternatively, the four-year limit on other programs funded

by Byrne grants should be applied to narcotics task forces.

• The Tulia Rule: Federal funding for undercover drug work

should require states to provide corroborating evidence for anytestimony by undercover officers or confidential informants.

Contact: Will HarrellExecutive Director

ACLU of Texas(512) 478-7309

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Texas’ system of “regional narcotics task forces”(RNTFs) came under intense scrutiny after the interna-tionally publicized Tulia drug busts in 1999. Sixteen

percent of black people in that small West Texas town wereconvicted on the uncorroborated word of an undercover officernamed Tom Coleman, who has since been indicted for perjuryin the case. Governor Perry pardoned 35 of the 39 convictedTulians in 2003.

The Tulia task force wasone of hundreds nationallyfunded by the EdwardByrne Memorial State andLocal Law EnforcementAssistance Program, afederal block grant programnamed after a slain NewYork undercover officer.Created in 1988, Byrnegrants may finance about 30different specific criminaljustice issue areas, of whichmultijurisdictional narcoticstask forces are just one (seelist on page 5).

The Governor of each statehas discretion as to howthat state’s Byrne money isspent. Nationally, taskforces make up about 40%of all Byrne grant funding,while historically in Texas nearly 90% of all Byrne grant fundsgo toward task forces.1

Statewide, various prosecutors have alleged RNTF agents havetampered with evidence, falsified documents, stolen money,stolen drugs, dealt drugs, transported drugs, and gave drugs andalcohol to minors.

It’s not just Texas, though. USA Today reported recently that“Investigations into possible misconduct by members of suchtask forces are underway in nine states.”3

The continuing saga of misconduct arises from the lack ofaccountability inherent in the RNTF structure. Federally

�%�&��!��Why drug task force highway interdiction violates rights, wastestax dollars, and fails to limit the availability of drugs in Texas

BY SCOTT HENSON

funded, state managed and locally staffed by officers fromseveral different police departments, government officials claimthey are not even law enforcement agencies per se. They existon paper, with no direct control by any elected official orgoverning body. In 2003, the Texas Department of PublicSafety (DPS) attempted to assume “command and control” ofByrne task forces, but DPS still maintains that local govern-ments are responsible if anything goes wrong.

In the end, though, someone has to be responsible, and for thefirst time local officials in Texas arebeginning to realize that it’s probablythem. Participation in RNTFs can bringcommunities more liabilities thanbenefits.

For the city of Amarillo, that was a $5million dollar lesson.

As this study was being published,attorneys for the wrongfully convictedvictims of the Tulia drug sting justfinished negotiating a nearly $7 millionsettlement with agencies participating inthe Panhandle Regional Narcotics TaskForce.

Unaccountable task force practices putthe communities they serve at risk.Today, Texas must weigh whetherpotential liabilities from Byrne-fundedtask forces outweigh purported benefits.Amarillo City Attorney Marcus W.Norris told the New York Times that“many drug task forces in Texas werepoorly organized and governed. That

led, he said, to poor supervision of Mr. Coleman in Tulia, a lackof accountability and catastrophic misjudgments. ‘There’s alesson here,’ Mr. Norris said, ‘that cities should be very carefulabout these alliances.’”4

Because local departments contribute officers to the task force,supervisors have little or no control over personnel decisions.“This was not an [Amarillo Police Department] operation, andit was not consistent with APD standards,” said Mike Loftin, anattorney who represented the city of Amarillo in the Tulia case.“The city of Amarillo did not feel comfortable standing behindan agent who has been discredited numerous times and who isnot the caliber that would be employed by the city of Ama-rillo.”5

Even though drug treatment is the highest priority inPresident Bush’s 2004 National Drug Control Strategy,and criminal law enforcement is the lowest, in Texas

those priorities are reversed. The Governor’s Criminal JusticeDivision chooses to spend almost all of Texas’ $31 million infederal Byrne funds each year on regional narcotics taskforces, with drug courts and homeland security both lowerpriorities.

The Governor should divert Byrne funds away from taskforces and into other allowable uses. Texas cities or countiesreceiving Byrne funds for a narcotics task force shouldimprove their criminal justice programs by applying formoney in one of these other authorized funding areas. Texascities or counties not presently receiving Byrne funds are notgetting their fair share of federal dollars!

Although pending federal legislation could change thesepriorities, other allowable programs that local communitiescan fund with Byrne grant money include:

� demand reduction education programs in which lawenforcement officers participate;� improving the quality, timeliness, and credibility offorensic science services for criminal justice purposes.� developing or improving in a forensic laboratory acapability to analyze deoxyribonucleic acid (hereinafter in thischapter referred to as ‘’DNA’’) for identification purposes;� antiterrorism training programs and equipment procure-ment for use by local law enforcement authorities;� enforcing child abuse and neglect laws, including lawsprotecting against child sexual abuse, and promoting pro-grams designed to prevent child abuse and neglect;� special programs that address crimes committed againstthe elderly and for rural jurisdictions;� disrupting illicit commerce in stolen goods and property;� improving the investigation and prosecution of white-collar crime, organized crime, public corruption crimes, andfraud against the government with priority attention to casesinvolving drug-related official corruption;� developing and implementing antiterrorism plans fordeep draft ports, international airports, and other importantfacilities;� career criminal prosecution programs including thedevelopment of proposed model drug control legislation;� financial investigative programs that target the identifica-tion of money laundering operations and assets obtainedthrough illegal drug trafficking, including the development ofproposed model legislation, financial investigative training,and financial information sharing systems;� improving the operational effectiveness of the court

process, by expanding prosecutorial, defender and judicialresources, and implementing court delay reduction programs;� programs designed to provide additional public correc-tional resources and improve the corrections system, includingtreatment in prisons and jails, intensive supervision programs,and long-range corrections and sentencing strategies;� providing prison industry projects designed to placeinmates in a realistic working and training environment whichwill enable them to acquire marketable skills and to makefinancial payments for restitution to their victims, for supportof their own families, and for support of themselves in theinstitution;� providing programs which identify and meet the treatmentneeds of adult and juvenile drug-dependent and alcohol-dependent offenders;� developing and implementing programs which provideassistance to jurors and witnesses, and assistance (other thancompensation) to victims of crimes;� developing programs to improve drug control technology,such as pretrial drug testing programs, programs whichprovide for the identification, assessment, referral to treatment,case management and monitoring of drug dependent offenders,enhancement of State and local forensic laboratories, and� criminal and justice information systems to assist lawenforcement, prosecution, courts, and corrections organization(including automated fingerprint identification systems);� innovative programs that demonstrate new and differentapproaches to enforcement, prosecution, and adjudication ofdrug offenses and other serious crimes;� addressing the problems of drug trafficking and the illegalmanufacture of controlled substances in public housing;� drug control evaluation programs which the State andlocal units of government may utilize to evaluate programs andprojects directed at State drug control activities;� providing alternatives to prevent detention, jail, andprison for persons who pose no danger to the community;� programs that address the need for effective bindoversystems for the prosecution of violent 16- and 17-year-oldjuveniles in courts with jurisdiction over adults for the crimesof - murder in the first degree; murder in the second degree;attempted murder; armed robbery when armed with a firearm;aggravated battery or assault when armed with a firearm;criminal sexual penetration when armed with a firearm; anddrive-by shootings;� establishing or supporting cooperative programs betweenlaw enforcement and media organizations, to collect, record,retain, and disseminate information useful in the identificationand apprehension of suspected criminal offenders; and� improving the criminal and juvenile justice system’sresponse to domestic and family violence, including spouseabuse, child abuse, and abuse of the elderly.

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Flawed Enforcement, May 2004 Page 6 ACLU of Texas

The high price paid by the Panhandle for the Tulia bust shouldserve as a wake-up call. Now, all Texas communities mustreconsider whether joining a Byrne-funded task force is worththe risk. “‘In all honesty, we didn’t get that much out of thetask force anyway. That’s what’s kind of frustrating about this,’[Oldham County Sheriff David Medlin] said of the settlement.‘We get drug into that suit and really didn’t get much work outof them. Basically, you got sued because you had a signature ona piece of paper. That was your involvement in it.’”6

Other communities face similar risks, all because the task forcesystem is poorly designed and unaccountable. In Hearne, theDistrict Attorney, local task force officers and participatingcities and counties are currently involved in an intense legalbattle with ACLU regarding alleged corruption and mismanage-ment at the South Central Texas Regional Narcotics Task Force

Worse, Byrne task forces are ineffective; in 17years they haven’t measurably limited drugavailability in Texas. They don’t focus on bigtime drug dealers or track sales “up the ladder”to catch big importers. Instead they rely on low-level undercover buy busts in minority commu-nities to generate arrest numbers and on highwayinterdictions for asset forfeiture opportunities.

This report argues that task force traffic interdiction programsare just as problematic as Tulia-style undercover operations,wasting taxpayer dollars on blithely ineffective programs thatviolate the spirit if not the letter of the Fourth Amendment tothe US Constitution barring unreasonable searches and sei-zures. This report continues where Too Far Off Task left off,analyzing the bureaucratic mechanisms by which the taskforces’ multijurisdictional structure creates inherent andinsurmountable barriers to reform.

Texas should quit throwing good money after bad and focus itsscarce resources on more effective programs like those high-lighted on page 5.

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The two primary activities of Byrne grant-funded regionalnarcotics task forces (RNTFs) are undercover drug stingoperations and highway interdiction. This study focuses

for the first time on problems associated with Texas RNTFtraffic interdiction programs.

Of the 45 regional narcotics task forces in Texas that are fundedthrough the federal Byrne grant program, 25 conducted trafficinterdiction programs in 2003.7

In compiling this report, the ACLU of Texas examined dataacquired from individual task forces under the Texas PublicInformation Act, and used that data to evaluate RNTF efforts tointercept drugs on major Texas highways. Through openrecords requests and several months of research, the ACLU ofTexas has learned that the overwhelming majority of RNTFinterdiction efforts amount to fishing expeditions that contrib-ute little to traffic safety. Instead, interdiction permits task forceofficers to pull over and search thousands of innocent Texanseach year as well as to seize vehicles, cash, and other forms ofpersonal property. Furthermore, records documenting RNTFinterdiction activities reveal patterns of racial disparity in how

frequently officers search vehicles.

Highway interdiction offers task forces theirbest opportunity for lucrative asset forfeiturecases, even though the success rate is ex-tremely low. Undercover buy busts in poorcommunities generate few forfeiture opportu-nities, while busts made on the highway couldlet task forces seize vehicles, cash, or more.8

While stories of lucrative asset forfeitures make occasionalheadlines, in daily practice, traffic interdiction by Byrne taskforces wastes taxpayer money on ill-focused police fishingexpeditions while contributing little to traffic safety. Byrne-funded traffic interdiction allows the government to pull overand search thousands of innocent Texans each year. Most taskforces were substantially more likely to search minorities thanwhites after they’d been pulled over, even when officers had noprobable cause for a search.

To analyze task force interdiction activities, ACLU of Texasrequested racial profiling data that state law and DPS rulesrequire each officer to gather. Of those 25, only 17 respondedto our open records request with some form of racial profilingdata, while 10 provided data sufficient to calculate search ratesfor traffic stops, and just 9 could be analyzed by race. (Twoothers appealed the request to the Attorney General, who hadnot decided the cases at the time of publication. 10 In severalcases, task forces sent ACLU bundles of individual tickets. Inthose instances, ACLU calculated their search rates.

traffic interdictionby Byrne taskforces wastes

taxpayer money onill-focused fishing

expeditions.

Flawed Enforcement, May 2004 Page 7ACLU of Texas

It’s impossible to knowwhether task forces are engaging inracial profiling because the agency

exercising ‘command and control’ overthem, i.e., DPS, doesn’t monitor

their racial profiling data.

forces.15 In quarterly reports to the DPS Narcotics Division,obtained under the Public Information Act, DPS captains

reported that they spot checked to see ifracial profiling data were being gathered ontask force tickets. However, DPS did notrequire the results of that data collection tobe either compiled at the task force levelor reported to DPS as part of the agen-cies’ outcome measures.16

Instead, each task force officer reportshis or her data to their own employingdepartment, and that departmentincludes the officer’s data in its ownaggregate, local department report.17

It’s impossible to know whether taskforces are engaging in racial profilingbecause the agency exercising “com-mand and control” over them, i.e., DPS,doesn’t monitor their racial profilingdata.

At a minimum, it’s fair to say that racialprofiling data was unavailable forsupervisors to use as a managementtool. As will be seen below, that toolcould have told DPS a lot about whethertask forces are complying with the newrules.

Similarly, to this day DPS has never before gathered evenstatistical data regarding the racial makeup of suspects targetedin undercover task force drug stings.18

This study found that task force interdiction officers’ searchpatterns differ considerably from regular law enforcementagencies, and thus merit independent inspection. DPS shouldrequire task forces to compile complete racial profiling reportsfor their interdiction officers so those patterns may be explored.

Lumping RNTF data in with local law enforcement figuresobscures many of the lessons that could be learned fromgathering and analyzing racial profiling data specifically fromRNTFs.

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In 2002, the Governor’s Criminal JusticeDivision and DPS entered into an agreementfor DPS to assume oversight of Texas’

RNTFs. As part of that agreement, DPScreated new rules, including rules prohibit-ing racial profiling and establishing racialprofiling data collection that task forceswould be required to comply with in orderto receive funding.11

At the time, ACLU congratulatedGovernor Perry and DPS specifically forrequiring racial profiling data collectionfrom task forces, calling it a “dramaticimprovement” and recommending thatthe requirement be replicated for alldrug interdiction units making trafficstops.12

As it turns out, that praise was prema-ture. In practice, DPS interpreted itsown rule in the narrowest possibleway. The rule requires “all agencies”to adopt policies against racialprofiling and begin to collect profilingdata as required under the Texas Codeof Criminal Procedure.

But state officials claim that Byrne task forces are not lawenforcement agencies in a legal sense, but instead are structuredas collaborative agreements between multiple counties.Lawsuits against task forces proper have been dismissed, whileindividual counties and cities that entered into collaborativeagreements have been held responsible for task force miscon-duct, as in the Tulia case.13

Since task forces are not legally “agencies,” DPS reasoned,they should not be required to produce racial profiling reports,nor even to adopt “strict written policies that prohibit racialprofiling.”14

In practice, DPS does not require task forces to report racialprofiling data to the supervising DPS captain, even though theagency in 2003 assumed “command and control” over the task

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Data submitted by regional narcotics task forces to theACLU of Texas show that these task forces are muchmore likely to search people at traffic stops than

regular Texas police and sheriff departments. 19 In Austin, forexample, local police officers searched drivers at 4.8% oftraffic stops. Drivers were searched at 5.9% of stops in Dallas,2.1% in Fort Worth, and a whopping 8.4% in Houston.20

ACLU considers some of those search rates to be too high, butthey seem low compared to the search rates for drivers stoppedby narcotics task forces. Only 10 task forces provided enoughdata to calculate search rates at traffic stops. Of those, all buttwo searched drivers at rates higher than the largest Texascities’ police departments.

The Panhandle Regional Narcotics Task Force, for example,which was responsible for the notorious Tulia drug busts,searched cars at 28.8% of traffic stops. The North Texas DrugTask Force searched at 35.2% of traffic stops, and the TransPecos task force topped out the list at 36.3% of stoppedmotorists searched. See Table 1 for the complete list for all taskforces supplying data.

These high search rates should raise a red flag for supervisorsand policymakers. The focus on making so many more searchesthan other officers indicates that these stops are merely pre-texts to search the vehicles for drugs or contraband. Anecdotalevidence bears that out.

In Nacogdoches, NAACP president John Morrison told theDaily Sentinel “‘we have received a lot of complaints about the[Deep East Texas narcotics] task force stopping people on thenorthwest loop,’ he said. ‘A lot of people who are stopped,especially on holidays or weekends say they are being searchedfor no good reason.’”21

Critics alleged that agents at the West Central Texas InterlocalCrime Task Force “bullied people into searches and threatenedto obtain search warrants when people didn’t comply.” “A lot oftimes they’ll stop people for insufficient probable cause,”Colorado City attorney Pat Barber told the Abilene Reporter-News. “I think their theory is to search as many people as theycan and maybe they’ll stumble across something. Peopleshouldn’t be searched unless there’s a good reason.”22

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Many types of police searches are not discretionarysearches. Examples include when officers seearticulable probable cause for a search, or when they

conduct inventory searches of abandoned or impoundedvehicles. If an officer has a warrant or probable cause to believea crime has been committed, he or she can search withoutasking an individual’s permission.

“Consent searches” are discretionary searches where an officerasks permission to search but has no legal authority to do sounless the driver gives consent. Once an individual consents toa search, that search is legally authorized and the officer willnot have to justify why it was requested in the first place.

Consent searches are controversial because most motoristsrightly feel they are not in a position to say “no.” In practice,there’s really very little consent involved in “consent searches.”

Texas drivers who refuse to allow an officer to search their carcan be placed under arrest. The US Supreme Court ruled inAtwater vs. City of Lago Vista that, under Texas law, officershave discretion to arrest drivers at traffic stops, even for ClassC misdemeanor offenses where the maximum penalty is only afine. In the dissenting opinion to that 5-4 decision, JusticeSandra Day O’Connor wrote, “As the recent debate over racialprofiling demonstrates all too clearly, a relatively minor trafficinfraction may often serve as an excuse for stopping and

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harassing an individual. After today, the arsenal available toany officer extends to a full arrest and the searches permissibleconcomitant to that arrest.” 23

In other words, Texas officers can legally tell a motorist pulledover for, say, a missing front license plate, “Let me search thecar, or I’ll arrest you and search the car when I impound it.”That’s hardly a consensual arrangement.

Another tactic is to forcedrivers who refuse to let theircar be searched to wait until aK-9 unit arrives, or to threatento wait for a search warrant.24

Since this process canfrequently take a long time,many motorists simply relent.

Such tactics violate the spirit,and possibly the letter, of theFourth Amendment to the U.S.Constitution. 25 The legal andpractical pressures on motor-ists to allow officers to search their vehicles amount to coer-cion, and Byrne task forces’ over-reliance on consent searchesmeans they exercise those coercive tools more aggressivelythan their counterparts at their home law enforcement agencies.

The six Byrne-funded narcotics task forces that supplied ACLUwith discretionary search data reported massively dispropor-tionate use of consent searches. More than 98% of searches attraffic stops by the Trans-Pecos task force were consent

searches, compared to 97% at the Panhandle task force, 93% atthe South Texas Specialized Crimes Task Force, and 81% at theBrazos Valley task force. Only two task forces reported aconsent search rate for 2002 less than 81% — the North Texasand West Texas Interlocal narcotics task forces, where consentsearches made up 67% and 63% of total searches, respectively.

The consent search rates in Table 2 are far higher than thoserecorded at most local Texas law enforcement agencies, wherethe vast majority of searches at traffic stops relate to arrests,probable cause, inventory searches, or some other type of non-discretionary search.

Houston, for example, reported that 22.4% of searches at trafficstops were consent searches. In Dallas, consent searches madeup 31.4% of searches at traffic stops, compared to 16.6 % inAustin, 21.1% in Fort Worth, and 8.7% in San Antonio.26

Increasingly the practice of asking for consent to search attraffic stops has been called into question. Already, courts inNew Jersey, Minnesota and Hawaii have banned consent

searches statewide based on search andseizure restrictions in their state constitu-tions.27

Last year, the California Highway Patroleliminated consent searches as part of astatewide racial profiling lawsuit settle-ment.28

ACLU believes requests for consent tosearch a vehicle at a traffic stop shouldbe banned by statute unless police haveprobable cause. But if the Legislaturedecides to let the practice continue, at aminimum, DPS should begin tracking

consent searches as part of task forces’ outcome measures, andthe Legislature should reconsider and pass legislation restrict-ing arrests for traffic offenses, or the whole idea of consent isabrogated. Governor Perry vetoed such legislation in 2001 and2003.29

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Until now, almost all attention onByrne-funded drug task forces focusedon undercover drug operations like theone in Tulia. That’s understandable,given the spectacular nature of thecases and how many have occurred.

In Floresville, 81st Judicial DistrictNarcotics Task Force Officer AlbertVillareal, like Tom Coleman, set upinnocents who were later freed andwas alleged by prosecutors to haveprotected drug dealers, stolen confi-dential funds, coerced a witness, anddelivered pot to a minor.1

In Hearne, 17 people were freed in2001 after a confidential informantpaid by the South Central TexasNarcotics Task Force lied about settingup drug deals.2

As Governor, George W. Bush cut offfunds to the Permian Basin Drug TaskForce amid “allegations ranging fromevidence tampering and fraudulentreports to bribery and theft.”3

Even outside of Texas, most discus-sions of task force reform occur afterfaulty undercover operations. In May2003 Missouri task force officerMichael Isenberg was charged withthree counts of perjury after allegedlytestifying that he was present duringthree drug buys when he wasn’t.Isenberg testified in at least 150 cases;so far, at least 35 defendants convictedon the former deputy’s word have beenreleased from prison or probation.4

There are more such cases, in Texas andacross the country, and they deserve thescrutiny they’ve received. The US HouseJudiciary Committee reportedly will holdhearings later this year regarding Byrnetask forces’ undercover drug enforce-ment activities.5

In 2003, the Texas House of Representa-tives passed legislation that would havediverted federal Byrne dollars to otheruses, and prohibited spending Byrnegrant money on narcotics task forces.(See the sidebar on page 5 for a list ofprograms that can be funded through theByrne grant program.) That part of thelegislation was deleted in conferencecommittee.6

At the federal level, President Bushproposed abolishing the Byrne fundentirely in his first three presidentialbudgets. Last year, Senators John Cornynand Kay Bailey Hutchison voted to getrid of Byrne grants altogether.7 In thecurrent federal budget Republicans haveproposed merging the fund with twoother programs, and slashing their overallfunding nearly in half.8

Even former task force supporters arebeginning to concede that regionalnarcotics task forces are a failed experi-ment. “I think the task force conceptthroughout the state is probably DOA,”Randall County Criminal DistrictAttorney James Farren told the AmarilloGlobe-News. “I don’t think the state isgoing to continue to assist in fundingthese types of task forces. What I’mseeing on the political horizon is, even if

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Thousands of motorists are stopped by Byrne-funded taskforce officers on Texas highways each year. By law,officers must have observed a traffic offense to have

probable cause to pull someone over. What’s more, accordingto RNTF rules established by DPS: “All officers makinginterdiction stops should take appropriate enforcement actionwhen violations are encountered.”30 That means that whenofficers pull over motorists they’re supposed to write a ticket.

Unlike traffic enforcement at local police and sheriff’s depart-ments, though, task force interdiction officers write few tickets,but instead hope to use traffic stops as a pretext to interview the

driver, look inside the car, and in many cases ask for consent tosearch the vehicle.

This process was described plainly by the Combined Govern-mental Drug Enforcement and Special Crimes Task Force, aByrne-funded task force in the Rio Grande Valley: “Officersattempt to ‘look past the traffic stop’ to determine if the trafficviolators are involved in any criminal activity. They attempt toidentify motorists involved in the smuggling of narcotics orproceeds of drug trafficking (sic).”31 In other words, trafficenforcement is not the point – before they’ve even pulled thedriver over, task force officers are looking “past the stop.”

Similarly, West Central Texas Interlocal Crime Task ForceCommander Billy Schat told the Abilene Reporter-News, “all of

our regional task force hadn’t come toan end, I think they all would havecome to an end eventually.” 9

1 Court records obtained by ACLU from WilsonCounty courthouse. Villareal was convicted inOctober 2002.2 ACLU’s Drug Policy Litigation Project ispresently litigating this case. Regina Kelly et al v.John Paschall, et al, Civ 02-A-02-CA-702 JN, inthe United States District Court for the WesternDistrict of Texas.3 Blakeslee, Nate, “The Law West of the Pecos,”The Texas Observer, 12-10-99.4 Willett, Justin, “Charges stun drug task force,”Columbia (MO) Daily Tribune, May 15, 2003.5 Parker, USA Today, March 30, 2004.6 Unsigned “Political Intelligence” item, “BustedKeel,” Texas Observer, 7-4-03.7 Both Texas US senators voted to table anamendment by Iowa Senator Tom Harkin thatwould have re-attached Byrne funding toPresident Bush’s 2003 budget bill, which hadzeroed out that program. The Senate votedJanuary 17, 2003, by a margin of 52-46, to backPresident Bush’s proposal to end the Byrne grantprogram entirely. Funding was replaced in theHouse-Senate conference committee.8 President Bush’s FY 2004 budget proposalwould consolidate the Byrne fund, the Local LawEnforcement Block Grant Program, and theCommunity Oriented Policing Services (COPS)program into a single funding stream called theJustice Assistance Grant (JAG) program. ThePresident’s 2004 budget would allocate $600million total for the program, about half the fundsallocated to those funds last year. House JudiciaryCommittee Chairman Rep. James Sensebrennerfiled HR 3036 this spring which would alsomerge Byrne grants with these other the twoprograms, but would keep the combined fundingat about $1.075 billion. Rep. Sensebrenner’s billwould end the requirement that granteescontribute matching funds, and would change thefunding formula so that the Department of Justicewill grant 40% of funds directly to localgovernments, while 60% would continue to go tothe governors for distribution.9 Cunningham, Greg, “Choosing options forfighting drugs,” Amarillo Globe-News, 3-13-04.


his agents’ stops begin with simple trafficviolations. Agents then ask questions andlook for drugs they may see in plain viewor for probable cause to search, hesaid.”32

The South Texas Specialized Crimes andNarcotics Task Force declared in itsgrant proposal, almost nonsensically, thatit will reduce the supply and demand forillegal drugs by “making traffic contactsand targeting traffic violators in an effortto upset the flow of narcotics on thesemajor thoroughfares, thereby reducingthe supply of illegal drugs.”33 That’s anearly senseless logical leap – there’s noreason to believe traffic contacts lowerthe drug supply unless the intent of trafficstops is not traffic enforcement, butcreating a pretext for investigating othercrimes for which officers have noprobable cause.

Task forces let nearly everyone off with awarning who isn’t caught with drugs.

The most prolific task force engaging ininterdiction, the Trans-Pecos Drug TaskForce based in Pecos, reported that99.3% of its 3,433 traffic stops resultedin warnings – in other words, driverswere nearly all let go without a ticket.34

The West Central Texas Interlocal Task

Force, based in Abilene, reported 2,600traffic stops in 2002, but only 56 totaltraffic citations – the other 98.7% werewarnings.35 Task forces with smallerinterdiction programs produce similarpatterns. The Brazos Valley NarcoticsTask Force in Bryan reported 313interdiction stops in 2002, issuingwarnings 97.4% of the time.36

For what reasons do task forces pulldrivers over? Though comprehensivedata on this subject has not been gatherednor analyzed by anyone, including DPS,available evidence indicates that taskforce interdiction officers pull driversover for the least serious traffic offenses.

At the Brazos Valley Narcotics TaskForce, for example, just over half oftraffic stops were for speeding (163 outof 313). But the next largest category ofstops was for having no front licenseplate or an obscured license plate (72).Other common categories of violationsincluded “failure to signal lane change,”“following too closely,” and “driving inthe passing lane.” In nearly all theseinstances, no ticket was written unlesscontraband was discovered.37

Supervisors monitoring racial profilingdata from interdiction officers could have

RNTF officers are using theirown discretion to search minori-

ties more frequently.

identified suchproblems. Unfortu-nately, because DPSdoes not monitorthe racial profilingdata it requires taskforce officers togather, the agencyhas no ability tomeasurewhether taskforces aregiving ticketsat trafficstops asrequired inDPS rules.

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the primary focus of the task force was “people that are sellingsmall amounts of drugs out in the streets, in their houses, youknow, small quantities . . . .”2 Similarly, the Rural Area Narcot-ics Task Force in Lampasas targets “‘Street’ and mid-levelnarcotics traffickers.”3 The 63rd Judicial District Task Force inDel Rio affords “special attention to the street level drugdealer.”4 Reading through 2002 and 2003 task force grantapplications obtained under the Public Information Act, theseexamples are typical, not anomalous.

1 See 42 USC §3751(b). While detailed arrest data is not available for Byrnefunded undercover operations, about 90% of all drug arrests in Texasare for possession, not manufacturing or distribution.

2 Regina Kelly et al v. John Paschall, et al, Civ 02-A-02-CA-702 JN, in theUnited States District Court for the Western District of Texas.

3 Rural Area Narcotics Task Force Byrne Grant Application, Date stampedJanuary 13, 2003.

4 63rd Judicial District Narcotics Task Force Byrne Grant Application, Datestamped April 11, 2003.

Federal law requires that Byrne funded programs emphasize“violent crime and serious offenders.”1 Virtually no Byrne fundsin Texas are spent to address violent crime. Byrne funded trafficinterdiction in Texas fails to emphasize serious offenders, insteadfocusing on verbal warnings and randomly searching vehiclesbased on consent, not probable cause.

Most task forces don’t even pretend to focus on violent crimes orserious offenses. In a deposition earlier this year with ACLUattorneys, the commander of the South Central Texas NTF said


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The failure of RNTFs to give traffic tickets at most oftheir stops might be explained by posing the obviousquestion, “To what court would you pay the ticket?”

DPS prefers that task force interdiction officers use ticketbooks from their home agency,38

though there is no formal policyand at least a few task forces haveprinted their own.39 That meanstickets given by most task forceofficers require the offender toappear in the county or cityemploying the officer writing theticket, not the jurisdiction where the ticket is given.

For example, say an officer from the Amarillo Police Depart-ment, while assigned to the Panhandle Regional Narcotics TaskForce, gave a ticket to a motorist in Dalhart 86 miles away. Ifthe officer used an Amarillo PD ticket book, the motorist mustpay the fine or appear in court in Amarillo, not Dallam County.To add to the Dalhart motorists’ confusion, consider that task

force officers must perform traffic interdiction, by DPS rule, ina vehicle and uniform with his home agency’s insignia.40

One can easily imagine motorists’ dismay at receiving traffictickets from law enforcement agencies stationed nearly 100miles away. Such logistical problems might explain why taskforces violate DPS rules and give warnings, not actual tickets,at highway interdiction stops.

A former long-time task force officeroffered another explanation – officersdon’t want traffic stops to be confron-tational because then drivers are morelikely to consent to searches. Accord-ing to this theory, if an officer writes a

motorist a ticket, the officer is less likely to gain consent tosearch because the person is angry.

A ticket can cost drivers a fine, go on their driving record, andincrease insurance rates. By letting drivers go with a warning,drivers are more inclined to give consent to search theirvehicles, the officer said, because they are trying to continuethe appearance of being cooperative so the officer doesn’tchange his or her mind and write an expensive citation.

Byrne funded task forces’ problemsstem from structural flaws, not justmisconduct by one or two officers.Consider the structural barriers taskforces would have to overcome to besuccessful:

• To qualify for funding for an RNTF,local governments must form andcontribute to a multijurisdictional taskforce, instead of using those funds tohire officers and keep them under theirown agencies’ command. (Meanwhile,the local government is missing out onother types of programs that they couldfund with Byrne grant money in theirlocal area. See the full list on page 5.)• Texas DPS claims to exercise“command and control’ of all taskforce officers in the state, even thougheach local participating agency hiresand formally employs the officers itcontributes.• Although local government is theofficial employer of a task forceofficer, it has no supervisory control,which instead is exercised by the task

force commander, who himself answersto a DPS captain and a local governingboard at the same time.• If task force officers engage inmisconduct, local participating govern-ments are liable, even if the misconductwas committed by someone they didn’thire.• Finally, while local government takeson all financial liability for task forcemisconduct, task forces keep any incomegenerated through asset forfeitureproceedings, and fail to write tickets thatcould generate local income.

These competing demands on task forcesmake them ungovernable, and hence,ungoverned. The result has been thelitany of scandals recounted in the 2002ACLU report, Too Far Off Task, andupdated on page 13.

Amarillo City Attorney Marcus Norrisrecently explained why his city wouldpay $5 million for task force misdeeds:“The attorneys on both sides of this casevalued the potential liability at $53

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��%%(��!!��%million or higher. A verdict of thatmagnitude would have had a devastatingimpact on every city and county in theTexas Panhandle, perhaps leading to theinsolvency of many of the smaller citiesand counties.”

Norris and the City of Amarillo foundout first hand what it’s like to pay the billfor misconduct by officers they neverhired or supervised. “All task forces areunder the direction of the Texas Depart-ment of Public Safety,” Norris wrote in aMarch 11, 2004 memo accompanying apress release regarding the Tulia settle-ment. “However, when a task force casegoes awry the State distances itself fromall liability, saying it is a problem forlocal participants.”

Norris sees little reason to cling to thetask force system in light of this reality.“It is in the best interests of the citizensof this community to have no furtherparticipation in the PRNTF or any otheralliance that poses the same governanceissues and liability risk,” he wrote.


ACLU’s December 2002 report on Byrne task forces, Too FarOff Task, documented 15 scandals at Byrne-funded task forcesin Texas, and two more involving problems with state over-sight the Byrne grant program. Since that time, more taskforces scandals have exploded across the state. Here’s asample:

��In Hearne, ACLU sued the South Central Texas RegionalNarcotics Task Force after 17 people were convicted based onthe false, uncorroborated word of aconfidential informant. Case logsobtained recently through discov-ery indicate massive racial profil-ing: 86% of cases generated by thetask force targeted black people.

� Northeast Texas NTF investi-gator Blaine Shavers filed awhistleblower suit in December,2003 claiming that task forceCommander Jack Tully violatedstate law and department rules.Shavers accused Tully of: “racialdiscrimination, use of city and/ortask force funds for personal gain,use of city and/or task force fundsin order to convey property toothers for personal gain, unauthorized use of city and/or taskforce equipment and damage to city and/or task force equip-ment while engaged in personal pursuits.”

� North Central Texas NTF Commander Brian Mankoff,who was Commander of the Year statewide in 1998, pledguilty to theft in December, 2002, after stealing task forcemoney so he could buy a new car for himself.

� Cross Timbers NTF commander Lt. Bryan Wright wasplaced on leave August, 2003, for “serious leadership problemsaccompanied by lax controls on the agents’ daily activities andpetty office jealousies that got out of hand,” using task forcevehicles for personal use, and dereliction of duty.

� Two undercover agents were dismissed from the CrossTimbers NTF in August of 2003 for violating task force rulesregarding the operation of task force vehicles, mishandlinginformants, harassment of acquaintances and informants, andinsubordination. One of the officers, who served nearly 10years as an undercover officer and field supervisor on the taskforce and had been “Officer of the Year for the Cross TimbersNTF” in 1996, is being investigated by the FBI and the USDepartment of Justice regarding allegations of civil rightsviolations against at least two informants, and has also beenfired from his local police department.

� The North Central Texas NTF literally sold light sentencesto defendants who had enough money according to the DallasMorning News. Using asset forfeiture, if the drug offender hadmoney he got probation and if he didn’t he had to go to prison.“If we don’t have enough money by the end of the grant year,we’re all out of a job,” said task force prosecutor DenverMcCarty in November, 2003.

� DPS found that at the 25th Judicial District NTF, drug andnon-drug evidence was missing in 20percent of the files. Thirty files weremissing altogether, logbooks were inaccu-rate, and the task force had “little contactor supervisory control” over some of itsofficers. Confidential informant files didnot comply with established policy, thecommander removed money from drugseizure funds without approval, the taskforce defied DPS requests to submit drugevidence to the state drug lab in Austin,and task force officers worked outsidetheir jurisdiction without notifying DPSCaptains, the Sequin Gazette reported in2003. Law enforcement officials asked thetask force to stay out of Goliad and DeWittcounties because of the task force’sreputation for “unprofessional police

activities.” “That’s the most disorganized task force I have everseen. Tell them I still want the money they took from GoliadCounty,” said Goliad County Sheriff Robert DeLaGarza.

� First degree felony charges had to be dismissed against atwo-time convicted felon in December, 2003, because evidenceseized during his arrest was destroyed by members of theAgriplex Drug Task Force in McLennan County. The defen-dant was accused of manufacturing meth and had been facing apossible life sentence.

� The Dogwood Trails NTF executed a search warrant in thewrong household. Task force officers allegedly forced theirway into a family’s back door with weapons drawn and handledthe couple inside in an abrupt, assaultive manner, handcuffingand detaining them on the floor in their home for an unreason-able period of time. The resulting lawsuit was settled out ofcourt in December, 2003.

� At the South Texas Specialized Crime and Narcotics TaskForce, two task force agents allegedly attempted to bribe amember of the asset forfeiture division of the Kleberg CountyDistrict Attorney’s office. When they were found out, theofficers claimed it was a joke. “If all of this is true, two taskforce members were committing bribery. Even if this is a prank,it indicates a severe lapse of judgment,” District AttorneyCarlos Valdez said to the Corpus Christi Caller Times in 2003.”I think the whole task force is infected.”

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That same officer said task forces are not interested in writingtraffic tickets because their primary duties relate to drugenforcement. Unlike asset forfeiture cases, fines from ticketsgenerate no income for the task force, and traffic cases tie upofficers in traffic court, taking them away from their focus onfinding drugs or money on the highway.

If that’s the case, it’s a shortsighted view that subjects thou-sands of Texans to pointless stops and searches and costs localjurisdictions hundreds of thousands of dollars in revenue.

At the Trans Pecos task force, for example, where 99.3% of its3,433 traffic stops resulted in warnings, counties participatingin the task force had to forego more than $300,000 in 2002ticket revenue.41 Such hidden costs are seldom considered inlocal governments’ cost-benefit analysis deciding whether toparticipate in Byrne task forces.

In any event, state and local officials should question whethertaxpayer dollars are best spent on traffic enforcement where notickets are written 98% of the time.

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The drug stings in Tulia and Hearne highlighted theproblem of racial disparities in drug enforcementpractices by RNTF undercover officers. For the first

time, this study demonstrates that RNTF traffic interdiction alsoexhibits racial disparities, particularly in search rates.

Task forces are more likely to search blacks than whites in eightof nine task forces that supplied sufficient data to calculatetraffic interdiction search rates by race. Latinos are searchedmore often than whites by seven of nine task forces reportingsuch race data.42

The existence of racial disparities in searches does not, byitself, prove racial profiling. But most task force traffic searchesare discretionary consent searches, when officers ask permis-sion to search without having probable cause. That meansRNTF officers are using their own discretion to search minori-ties more frequently.

Even though federal law specifically prohibits racial discrimi-nation in Byrne funded programs, and the penalty is suspensionof grant funds to the state,43 DPS does not gather informationabout race regarding either traffic stops or undercover activity,so it has no way to determine if task forces are in compliance.44

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“If we don’t have enough [forfeiture]money by the end of the grant year,we’re all out of a job.”

- former task force prosecutor


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Driving these seemingly pointless traffic contacts is avery real profit incentive – highway interdiction offerstask forces their best chance to generate asset forfeiture

income that sustains their programs.

A majority of Byrne-funded task forces view generating assetforfeiture opportunities as an important goal. According to asurvey performed in 2001 by Sam Houston State University,55%, or 27 out of (then) 49 Texas narcotics task forces listedgenerating asset forfeiture income as a high priority (either a 4or a 5, on a scale of 1-5).45

Overall, asset forfeitures make up about 40% of task forcematching funds used to draw down federal Byrne grant moneyin Texas. The other 60% comes from cash payments by localgovernments, with occasional assistance from DPS.46

The pressure to generate forfeiture income comes from manysources. For years, the Governor’s Criminal Justice Division

ranked Texas task forces competitively, though it has sincediscontinued the practice. One of the key measurementscalculated was the ratio of asset forfeitures to the total Byrnegrant income received by the task force. In the only example ofthese rankings ACLU has seen, only one task force reportedmore “program income,” or forfeiture revenue, than its totalByrne grant funding for that year.47

A few task forces have made large scores that inspired theirpeers to focus more intently on asset forfeiture and trafficinterdiction. For its first decade, the West Central TexasInterlocal Crime Task Force got by holding pancake breakfastsand local fundraisers to come up with its share of local match-ing funds. In 1997, though, a new task force commander tookover who began to look to asset forfeiture and traffic interdic-tion to finance his program. “I thought we should let the drugtraffickers fund our agency,” he said. And they did. In 1999, atask force agent pulled over an 18-wheeler hauling almost $10million in cash hidden in cases of instant soup. The task forcereceived nearly $8 million of the money, eliminating the needfor local government to contribute matching funds, andinstantly making it a role model for every other task force in thestate.48

Many task forces rely on forfeiture money to make ends meet.According to the Dallas Morning News, the North CentralTexas Narcotics Task Force struck deals for lighter punish-ments in exchange for cash, cars, motorcycles, jewelry andother property because the task force needed the money to stayin business. “If we don’t have enough money by the end of thegrant year, we’re all out of a job,” former task force prosecutorDenver McCarty told the News. “You kind of knew what kindof forfeiture money you needed to have, or everybody’s goinghome.” 49

Letting task forces profit from forfeiture proceedings createsperverse incentives. Since task forces, according to officials,are not government agencies, it makes little sense for them tokeep forfeiture money when their agents are involved with acase. That money should be divided among the general funds ofparticipating counties, or designated to help fund local publicschools.

http://www.aclutx.orgFor More Information Visit:


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As a result of this study, ACLU offersthe following recommendationsregarding management and oversight ofTexas’ Byrne-grant funded regionalnarcotics task forces:

State

• The Governor should divert federal

Byrne dollars to more effectivemethods of combating drug abuse, andother Texas priorities. Texas shouldquit using federal Byrne money fornarcotics task forces and spend it ontreatment programs, drug courts,homeland security, crime lab upgrades,evidence-based law enforcementtraining or other allowable programsdetailed on p. 5.

• If Byrne money is not diverted to

other uses, DPS should require taskforces to report all Tier 1 and Tier 2racial profiling data for all stops to DPSas part of their outcome measures.

• Drug interdiction patrols should be

limited to officers’ home, employingjurisdiction so that motorists arestopped by officers who appear to beoperating within their own jurisdiction,and can protest their ticket, if necessary,to a nearby magistrate.

• The Texas Legislature should ban

discretionary consent searches state-

wide, or at least require officers to tellmotorists they do not have to consent toa search.

• Alternatively, DPS should ban

consent searches by task force interdic-tion officers and state troopers.

• Task force asset forfeiture income

should be divided among the generalfunds of participating counties andcities, or designated to help fund localpublic schools.

Federal

• Multijurisdictional narcotics task

forces should be eliminated fromthe list of allowable funding itemsfor Byrne grants or any successorprogram.

• The four year limit on other

programs funded by Byrne grantsshould be applied to narcotics taskforces.

• The Tulia Rule: Federal funding for

undercover drug work shouldrequire states to corroboratetestimony by undercover officersand confidential informants.

��

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1 Department of Justice Drug DemandReduction Activities, Office of theInspector General, Report No. 03-12, February 2003. The percentageof Byrne funds going to regionalnarcotics task forces in 2000 and2001 was 39.4 and 42.3 percent ofprogram funds, respectively.

2 Henson, Scott, Too Far Off Task: Why,after Tulia, Texas should re-think itsBig Government approach to theDrug War, abolish narcotics taskforces, and save $200 million thisbiennium, ACLU of Texas, Decem-ber 2002, p. 5. Available on the web

at http://www.aclutx.org/news/NarcoticsTaskForceReport.pdf. Thereport examined systemic problemswith task force management, arguingthe problems were inherent to theentities pseudo-governmental,multijurisdictional nature.

3 Parker, Laura, “Texas scandal throwsdoubt on anti-drug task forces,”USA Today, March 30, 2004. On theweb at http://www.usatoday.com/news/nation/2004-03-30-drug-program_x.htm as of 4-8-03.

4 Liptak, Adam, “$5 million settlementends case of tainted Texas sting,”New York Times, 3-11-04.

5 Cunningham, Greg, “Tulia suit settledfor $5 million,” Amarillo Globe-

News, 3-12-04.6 McBride, Jim, “Task force demise

unlikely to have major impact onarea,” Amarillo Globe-News, 3-13-04.

7 Analysis of Task Force QuarterlyAssessments by DPS Captains forfinal quarter, 2003. These areinternal documents obtained underthe Texas Public Information Act.

8 DPS Narcotics Division DeputyCommander Pat O’Burke said thatwhen the agency took over supervi-sion of the task force system, sometask forces were only targetingsouthbound traffic, hoping to seizecash, rather than northbound trafficwhich would mean they werelooking to seize drugs. DPS hasinsisted that officers target traffic inboth directions, he said. Source: 4-29-04 phone interview.

9 Analysis of Task Force QuarterlyAssessments by DPS Captains forfinal quarter, 2003. These areinternal documents obtained underthe Texas Public Information Act.

10 Three more task forces appealed ourrequests to the Attorney General,and at least one, the 81st JudicialDistrict Task Force, has sued the AGwhen General Greg Abbott ruledagainst them. Task forces are notunique among law enforcementagencies in their failure to respondto requests under the Texas PublicInformation Act. A study performedby the University of Texas at Tylerand two East Texas newspapersfound that law enforcement agencieswere much less likely to complywith open records requests thanschools or city and county govern-ments. (“Records-access study faultslaw enforcers,” Associated Press,12-30-02.) That failure is com-pounded by the fact that – to judgeby the number of appeals to theTexas Attorney General, whererequests to law enforcement agen-cies make up a majority of allappeals – most people seekingaccess to public records in Texaswant information about criminaljustice matters.

11 DPS Rules for Texas Narcotics TaskForces, January 2002, Section XI.,“Interdiction,” p. 16.

12 Henson, 2002, p. 11.


13 See Alexander vs City of Rockwall, et. al., Civil Action 3:95-CV-0489-G, United States District Court, NorthernDistrict, Dallas Division. The court dismissed a task forcefrom the case, leaving participating local governments asthe only “jural entities” which can be held liable for taskforce misconduct.

14 DPS responded to a 2003 ACLU open records requeststating that no responsive documents exist because DPSdoes not gather this data from task force. DPS NarcoticsDivision Deputy Commander Pat O’Burke confirmed thatcontinuing practice a 4-29-04 phone interview. He saidDPS advised task forces not to prepare their own racialprofiling reports, but instead to report officer-specific datato their employing agencies.

15 Memorandum of Understanding between DPS andGovernor’s Criminal Justice Division, “Coordination ofDrug Law Enforcement Efforts,” 2003.

16 Quarterly reports for the final quarter of 2003 obtained byACLU under the Texas Public Information Act.

17 Quite a few task forces (of those that responded to ACLU’sopen records request) compiled a racial profiling reportdespite the DPS recommendations, though not all of themcontained all the data elements required under state law.For three of the task forces, ACLU acquired copies ofactual tickets or ticket-level data and compiled their racialprofiling report ourselves manually.

18 When ACLU requested this data we were told the informa-tion was not gathered and that it would require up to$1,200 of programming time to accumulate. We haveoffered to purchase the information, which should beforthcoming. ACLU Public Information Act Requestsdated April 9 and April 14, 2004.

19 For this report, ACLU has analyzed racial profiling data onlyrelated to search rates by task forces. Because task forcesoperate across multiple jurisdictions, and because interdic-tion activities take place mostly on highways where driversare passing through, it would be impossible to calculate a“baseline” for traffic stops that would accurately representthe driving population encountered by task force officers.By the same token, traffic stop data provides an appropri-ate baseline for comparing search data, because bydefinition, from a statistical perspective, all such searchesare a subset of the total number of traffic stops.

20 Calculated by the author from March 2004 racial profilingannual reports gathered under the Texas Public Informa-tion Act by the Texas Criminal Justice Reform Coalition aspart of a statewide study.

21 Johnson, Johnny, “Racial profiling: Issue not all black andwhite,” Nacogdoches Daily Sentinel, 3-28-04. The DeepEast Texas Narcotics Task Force did not respond toACLU’s Public Information Act request.

22 Sheehan, Jason, “The Eyes and Ears: With kudos andcontroversy, task force tries to keep drugs out of WestTexas,” Abilene Reporter-News, 2-14-04.

23 Atwater vs. City of Lago Vista, decided by the US SupremeCourt April 24, 2001.

24 E.g., “Some of the complaints [local NAACP President John]Morrison has heard are that officers tell the motorists thatthey don’t need a warrant to search their vehicle, or that‘yes, you have the right to wait for a warrant, but we maybe here a few hours before we get it.’ Hearing that,motorists consent to the search.” Nacogdoches DailySentinel, 3-28-04.

25 We should find out soon if this practice is constitutional.The US Supreme Court has elected to address the issue inIllinois vs. Roy Caballes, No. 03-923. The case will likelybe decided in Fall 2004. See the UPI story, Kirkland,Michael, “Court to rule on drug sniffing dogs,” TheWashington Times, April 5, 2004, on the web at http://washingtontimes.com/upi-breaking/20040405-103242-4216r.htm as of 4-20-04.

26 Calculated from data retrieved under the Texas PublicInformation Act as part of the February 2002 study, “RacialProfiling: Texas Stops and Searches.”

27 On New Jersey and Hawaii, see Mansnerus, Laura, “Highcourt in New Jersey strictly limits auto searches,” NewYork Times, 3-5-02. On Minnesota, see Associated Press,KSTP TV, “Minnesota Supreme Court: Police need reasonto ask for search,” 5-2-03, on the web at http://www.kstp.com/article/view/95454/ as of 4-28-04.

28 Foo, Rodney, “CHP settled profiling suit,” San Jose MercuryNews, 2-28-03. As of 4-22-04 this article was on the webat http://www.mercurynews.com/mld/mercurynews/news/local/5283727.htm?1c.

29 In 2001, Texas Governor Rick Perry vetoed SB 730, whichwould have forbidden arrests for fine-only offenses exceptin a handful of cases like alcohol-related offenses andwhere suspect behavior placed others in danger. In 2003,Governor Perry vetoed SB 1597, which would have merelyrequired police supervisors to review arrests for fine-onlyoffenses and force departments to create local policiesaddressing when such arrests could be made.

30 Texas Department of Public Safety Narcotics Task ForceRules, IX, F.

31 Grant application, Combined Governmental Drug Enforce-ment and Special Crimes Task Force, January 15, 2003,see part 6, “Project Summary.” Documents obtained underthe Texas Public Information Act.

32 Sheehan, Jason, “The Eyes and Ears: With kudos andcontroversy, task force tries to keep drugs out of WestTexas,” Abilene Reporter-News, 2-14-04. What Com-mander Schat didn’t mention was that more than 2/3 of


searches by his task force at traffic stops were consentsearches, not based on any probable cause. See the charton page 9detailing the ratio of consent searches to the totalnumber of searches conducted.

33 Grant Application, South Texas Specialized Crimes andNarcotics Task Force, January 2003.

34 “Racial Profiling Summary Report: Total stops from 01/01/02 to 12-31-02,” Reeves County Sheriff’s Departmentsummaries of task force stops. Documents obtained underthe Texas Public Information Act.

35 Compiled by counting cases listed in “Traffic Stop DataReport: Year 2002” by the West Central Texas InterlocalCrime Task Force,” undated. Documents obtained underthe Texas Public Information Act.

36 In response to an open records request, this task force sentACLU actual tickets and/or racial profiling slips for allstops between May and December 2003 in response to anopen records request for racial profiling data. Totals werecalculated by categorizing and counting individual tickets.

37 This level of data is not available for most task forces, butthe Brazos Valley Task Force supplied ACLU with copiesof all tickets written by their traffic interdiction officersbetween May and December 2003, in response to a PublicInformation Act request.

38 Interview, DPS Deputy Commander Pat O’Burke, 4-29-03.39 ACLU was given copies of individual tickets written on a

Brazos Valley Narcotics Task Force ticket book as a resultof an open records request. DPS Deputy CommanderO’Burke said only a handful of task forces use task forceticket books instead of ones printed by the officers’employing agencies. He said DPS discouraged the prac-tice, but had no formal policy against it.

40 DPS Task Force Rules, 2002, p. 17. “All officers initiatingvehicular traffic stops shall be in an appropriate, readilyidentifiable uniform that … displays the badge or patch ofhis/her employing law enforcement agency,” and stopsshall be made in “vehicles bearing the official markings ofa participating law enforcement agency and equipped withemergency lights.”

41 Approximately $340,900, estimated at an average of $100per ticket. The Trans Pecos task force wrote 3,433 tickets,99.3% of which were warnings.

42 Racial profiling forms for some local agencies lump Hispan-ics in with white people when reporting racial profilingstatistics, even though state law demands they include aHispanic category. This practice sometimes causes Latinostop and search rates to appear artificially low or non-existent. In addition, anecdotal evidence indicates manyLatinos are listed as white on traffic tickets, even where theofficer has an option to identify the correct ethnicity. This

results in some bizarre outcomes. The Laredo Multi-Agency Narcotics Task Force, for example, reportedstopping only white people – no blacks and no Latinos.This despite the fact that some of the persons stopped werenamed Estanislao Garcia, Jorge Meza, Eduardo Almanza,Ernesto Gonzales, etc. In response to ACLU’s openrecords request, Laredo Task Force commander ArmandoRodriguez wrote on November 14, 2003, “Effectiveimmediately our race column will be changed to H(Hispanic), C (Caucasian), A (Asian), and AA (AfricanAmerican).” That task force reported stop data only,sending us a complete list of tickets including names ofthose receiving citations, but apparently did not gather orreport search data, so its results were not included in thisreport.

43 See 42 USC §3789d(c)(1)44 Because ACLU of Texas requested the data under the Public

Information Act, and agreed to pay $1,200 for it, a privatecompany will soon be paid to program DPS’ computerdatabase to produce the information for the first time ever.DPS Narcotics Division Deputy Commander Pat O’Burkesaid DPS does not and has no plans to begin gathering dataabout the race of task force arrestees for its own purposes.Source: 4-29-04 interview, DPS Narcotics Division DeputyCommander Pat O’Burke.

45 SHSUresearchers placed their raw data on the internet, alongwith a copy of the survey sent to task force commanders.To the author’s knowledge, though, the results of thissurvey were never published. As of 4-20-04 the data wasavailable on the web at http://www.shsu.edu/~icc_cmf/policy/TNPC/TNPC.xls. As of the same date, the surveyfrom which the data was generated is at http://www.shsu.edu/~icc_cmf/policy/TNPC/PolicyProblem.doc.

46 Henson, 2002, p. 8. In 2002, “just over $7 million of a total$17.3 million in local matching funds was covered byforfeited funds.”

47 Governor’s Criminal Justice Division, Narcotics Task ForceRankings, final quarter, 2001.

48 Sheehan, Jason, “The Eyes and Ears: With kudos andcontroversy, task force tries to keep drugs out of WestTexas,” Abilene Reporter-News, 2-14-04.

49 Krause, Kevin, “Criminals’ assets help fund drug task force:DA denies it but others say property is traded for le-niency,” Dallas Morning News, 11-9-03.


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Corrupt drug task forceswon’t rein themselves in.

The USA Patriot Actwill not self-repeal.

The right to free speech can’tstop its own abrogation.

Our American freedoms can’tprotect themselves.

They need your help.

Join the ACLUHelp Protect Texans’ Constitutional Rights

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Banned bookscan’t fight censorship.

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No, these aren’t the finalistsfrom the SubcommandanteMarcos look-alike contest.The Tri-County NarcoticsTask Force proudly featuresthis photo on their web site oftask force officers posing withmasks and heavy weaponry.DPS rules enacted in 2002 forbid task force officers fromwearing masks during encounters with the public. But they’restill allowed to dress up in their offices.

PO Box 12905Austin, Texas, 78711

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