DEA 'Cold Consent' Encounters Constitute Federal Stop-and-Frisk

By Adam Bates
Cato @ Liberty
Mar. 20, 2015

Over at Forbes, the Institute for Justice's Nick Sibilla details a new report from the Department of Justice concerning the Drug Enforcement Administration's practice of cold-stopping travelers at airports, bus stations, and train stations and asking to search their property looking for forfeitable assets.

Federal drug agents may be racially profiling and unjustly seizing cash from travelers in the nation's airports, bus stations and train stations. A new report released by the Office of the Inspector General for the U.S. Department of Justice examined the Drug Enforcement Administration (DEA)'s controversial use of "cold consent.

In a cold consent encounter, a person is stopped if an agent thinks that person's behavior fits a drug courier profile. Or an agent can stop a person cold "based on no particular behavior," according to the Inspector General report. The agent then asks the people they have stopped for consent to question them and sometimes to search their possessions as well. By gaining consent, law enforcement officers can bypass the need for a warrant.

While many people who believe they have nothing to hide may–inadvisably–consent to a police search, they may not be familiar with federal civil asset forfeiture laws, which give federal agents wide latitude to seize property, especially cash, without charging anyone with any crime. Sibilla notes that the DEA agents even go so far as to carry affidavits for search targets to sign disclaiming any rights to the property being seized.

Disturbingly, the Inspector General found that DEA interdiction task force groups have been seizing cash from travelers and then urging them to sign forms disclaiming their own cash and "waiving their rights." In one cold consent encounter, DEA agents stopped another African-American woman in part because she was "pacing nervously" before boarding her flight. After gaining her consent, the agents searched her luggage and found $8,000.

The extortive waiver maneuver is not an isolated practice in civil forfeiture jurisdictions. In exchange for signing away your money, the agents agree not to seize other property (for instance, your car or home) or arrest you on criminal charges. Many interstate travelers (the primary targets of drug interdiction forfeiture efforts) rationally decide it's better to get on with their journey than fight the government for their property. It's not hard to imagine the practical and financial vulnerability of people getting ready to step on an airplane being threatened with arrest if they refuse to hand over their cash.

The Department of Justice report also raises troubling questions concerning the criteria used to make the stops. There is an obvious risk that allowing DEA agents to stop travelers cold and question them invites the possibility of racial profiling. This federal policy bears a striking resemblance to the NYPD's controversial Stop-and-Frisk program, which received withering criticism for the constitutional and racial dynamics involved in allowing officers to stop people cold.

In short, this is another on a long list of areas where the pernicious incentives of the drug war and civil asset forfeiture combine to create an institution of abuse and disregard for individual liberty.

At a time when predatory, revenue-centered law enforcement is being rightly condemned---with the ostensible imprimatur of the federal government--- it would be nice for the federal government to set an example by ending its own abusive law enforcement practices.