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DEA Agents Ambush Amtrak Passengers With Controversial Searches and Seizures

Published: August 31, 2019
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Source: The Intercept

Afew hours characteristically behind schedule, Amtrak’s Southwest Chief rolls into Albuquerque, New Mexico, at the small station that it shares with the Greyhound bus service on the edge of downtown.

Most people step off to stretch their legs or have a cigarette during the layover, the longest smoke break in the entire trip. That’s when two plainclothes agents come aboard the train on a rainy day in March 2019.

One agent walks to the back of the aisle in the first coach car and waits, quietly observing. The other is tasked with getting people to talk and open their bags. His name is Jarrell, or Jay, Perry, and he’s done it hundreds of times before.

Today, he seems confident that he will find someone on board carrying drugs — or at least a substantial amount of money. He flashes a smile and a badge. A young, disheveled man in a seat by the entrance to the car agrees to let Perry search his three bags. The agent flips through the man’s luggage with tactical speed

Perry is white and looks like he’s in his fifties. He’s bald and slightly overweight, with a weightlifter’s build to compensate, and he’s dressed in a baseball cap, a gray sweatshirt, and jeans. He’s not carrying a visible warrant or a train ticket and has no drug dog with him. When passengers reboard, they seem oblivious to his presence.

“Thank you, sir, I appreciate it, have a good trip,” Perry tells the young man after he concludes the search, walking away empty-handed.

DEA Agent Perry boards the Southwest Chief in ABQ to question Passengers and search luggage.

 

DEA Agent Jay Perry boards the Southwest Chief in Albuquerque to question passengers and search luggage on March 15, 2019.

Photo: Harris Mizrahi

A previous International Narcotics Interdiction Association’s Agent/Officer of the Year, Special Agent Perry with the Drug Enforcement Administration is behind as many as 1,600 criminal cases against drug couriers, according to court documents touting his credibility as a star government witness. His secret weapons are a train and bus depot in his district that seem to attract an inordinate amount of drug trafficking, and a capacious interpretation of the Constitution’s tolerance for stops and searches.

His secret weapons are a train station in his district that seem to attract an inordinate amount of drug trafficking, and a capacious interpretation of the Constitution’s tolerance for stops and searches.

When Perry approaches, it’s hard for passengers to say no.

“Because he told me he was an officer,” the young passenger in Albuquerque later said, explaining why he agreed to the search.

It’s legal for Perry to search people without probable cause, a warrant, or a dog because travelers supposedly realize that they have the right to decline to submit to his searches. Perry and others in his interdiction unit have testified that they receive manifests ahead of time listing the passengers who will be arriving in Albuquerque. The courts have ruled this is also legal — functioning like a helpful tip sheet on whom to question.

More problematically, Perry has been captured on surveillance footage boarding empty Greyhound buses and pulling bags out of the checked luggage bin. One clip captures him pressing on a bag so aggressively that he appears to be tackling it. But he stops short of opening the bag, which would be blatantly unconstitutional. Several people that Perry has seized cash from insist that they are not drug couriers and, in fact, were never criminally charged as such, though that didn’t help them get their money back.

Perry is not the only cop riding the rails. His tactics offer a case study in how law enforcement targets mass transit in the war on drugs, generating thousands of busts and a steady stream of revenue from seized assets.

Amtrak Southwest Chief stops to pick up passengers. Those already on board have a short time to disembark fior a cigerette or some fresh air.

 

Amtrak’s Southwest Chief stops to pick up passengers. Those already on board have a short time to disembark for a cigarette or some fresh air.

Photo: Harris Mizrahi

Amtrak’s Southwest Chief is the third-longest passenger rail line in the United States, taking about 327,000 people between Chicago and Los Angeles in 2018. The train leaves every day in both directions, passing through the same rural route once crossed by traders in the 1800s. The ride is peaceful, with no Wi-Fi to pass the time, the security seemingly nonexistent. Amtrak has its own modest-sized police department, but they rarely check bags before people board. That’s part of the appeal.

Harboring the false idea that security was lax, Richard McKenzie boarded the Southwest Chief in Flagstaff, Arizona, with 3 1/2 kilograms of cocaine in his luggage in 2008. That was the kind of work he did for a living. He loved selling illegal drugs — negotiating, talking to people, the “art of the deal,” as he described it. “My circumstances aren’t different than any other entrepreneur,” he said.

He still remembers how his mind was blown by the views of Native American reservations on the way from Arizona to New Mexico, and how he couldn’t help chiming in when he overheard some kids in the dining car complain to their grandmother that they were bored. “‘You don’t understand the opportunity that you have,” he told the kids. “‘Right now, you’re traveling across the United States.”

The ride is peaceful, with no Wi-Fi to pass the time, the security seemingly nonexistent.

The pleasant trip ended at approximately 12:30 p.m. on July 7, 2008, when DEA Special Agent Mark Hyland and Stephen Surprenant de Garcia, an officer assigned to the DEA’s local interdiction task force, approached McKenzie as he smoked a cigarette in Albuquerque. Without realizing that the agents had already flagged his itinerary as suspicious, McKenzie opened his Louis Vuitton bag, revealing a cereal box at the bottom that the agents noticed was unusually heavy.

There are “a lot of people traveling on the train with something they don’t want the government knowing about,” McKenzie said in an interview with The Intercept, and law enforcement all along the route are aware of this fact as well.

At Chicago’s Union Station, the final destination for the eastbound Southwest Chief and a hub for other long distance lines, a Chicago interdiction task force group, made of DEA agents and officers from the Chicago and Amtrak police departments, are routinely on the hunt for what they call “drug proceed couriers,” or in other words, people carrying large sums of cash. An Amtrak Police Department canine in Chicago named Gander has detected the smell of narcotics on luggage that turned out to be carrying anywhere from a modest $20,040 to a whopping $830,000, according to asset forfeiture suits filed by the U.S. government within the past year and a half.

“Los Angeles is a known source city for illegal narcotics,” DEA Special Agent Ryan Marriott wrote in an arrest affidavit in January 2019, describing how he found a courier on the Southwest Chief in Kansas City, Missouri. The man was allegedly trying to smuggle crystal meth in size 18 shoes for someone he knew only as Big Pun. “Members of our squad have made numerous narcotic arrests and seizures from this train route,” Marriott wrote.

In Kansas City, DEA agents and local officers with the Missouri Western Interdiction and Narcotics Task Force await passengers on the train heading east. And in Galesburg, Illinois, population 32,193, officers from the Galesburg Police Department and the Knox County Sheriff’s Department have reportedly seized 191 pounds of cannabis from Amtrak passengers over a period of six years, in addition to some harder drugs. They’ve made the arrests in the short amount of time that the Southwest Chief is stopped at the station.

“I would say less than five minutes,” Knox County Detective Greg Jennings told the Register-Mail newspaper last year.

passengers-1567202544

 

Dominic Jones, bottom left, and Megan, top right, are two of the roughly 327,000 people who ride the Southwest Chief in a year. Most of the passengers have no idea that DEA agents also often come aboard. Jones, 33, from Peori, Ariz., took the Southwest Chief to Kansas City to visit his mother for the first time in 20 years. Megan, photographed in Flagstaff, was returning from visiting her daughter in California.

Photos: Harris Mizrahi

Word apparently hasn’t reached the drug mules that their presence on the Southwest Chief and other passenger Amtrak trains is a known phenomenon that goes back decades, or at least back to the mid-1990s. That’s when an unknown DEA agent first approached an Amtrak secretary for information about the itinerary of a passenger who was under arrest.

The Amtrak secretary started using his access to Amtrak’s reservation system to regularly look for people who “might be planning to transport illegal drugs or money,” based solely on subtle clues like one-way itineraries for private bedrooms, trips booked on short notice, trips booked by third parties, and trips paid in cash. For each drug bust or cash seizure that the DEA made thanks to this information, the Amtrak secretary was rewarded a cut of the proceeds.

The person who recruited the Amtrak secretary as a DEA snitch described him to Department of Justice auditors in 2015 as “one of the most valuable interdiction informants the DEA has ever known.” Amtrak itineraries were a “goldmine,” the person added, “responsible for the seizure of millions of dollars.”

The Amtrak secretary had amassed $854,460 from the DEA for his work snitching on riders.

The Amtrak Police Department learned about the arrangement in 2014, and by that time, the Amtrak secretary had amassed $854,460 from the DEA for his work snitching on riders. Amtrak police were unhappy because they were cut out of the deal. They alerted the Department of Justice’s Office of Inspector General, which determined in an investigation that the payments were “wasting substantial government funds,” according to a heavily redacted copy of the OIG report obtained by The Intercept via a Freedom of Information Act request.

By 2016, the DEA said it would stop using Amtrak employees as paid informants, after the OIG uncovered “improper” relationships between the law enforcement agency and nearly three dozen other Amtrak sources.

Cops patrolling train stations are typically using a tactic that law enforcement calls the “cold consent encounter,” so named because they approach people cold, on thin evidence they are drug couriers, and passengers consent to the searches, at least according to the officers’ versions of events.

It’s a legal loophole of sorts, commonly used by DEA agents working mass transit to get around the Fourth Amendment of the Constitution, which protects people from unreasonable searches. (Travelers can’t decline a search once a drug dog makes a positive hit, however.)

The American Civil Liberties Union has described cold consent encounters as “definitely cold, not so consensual.” And the ACLU of New Mexico criticized Amtrak in particular for its “insidious alliance” with the DEA, after some information about the DEA’s monitoring of train travelers came out in a drug trafficking trial in 2001.

ACLU New Mexico Executive Director Peter Simonson said that travelers who are approached on the train or other mass transit often don’t know that they have the right to refuse police searches. Especially troubling to him is research showing that police, when acting on hunches rather than hard evidence, are more likely to let subconscious racial bias creep into their work.

The fact that it might be easy to find drug couriers on trains isn’t a compelling argument to him. “Law enforcement’s job would be much, much easier if they didn’t have to comport with any constitutional restrictions and could simply arrest people at will,” he said.

Albuquerque Amtrak and Greyhound Bus Terminal.

 

A man stands in front of the Amtrak station and Greyhound bus terminal in Albuquerque.

Photo: Harris Mizrahi

The Southwest Chief makes a daily 25-minute maintenance stop in Albuquerque in both directions. Special Agent Perry sometimes tells the people he searches that he’s at the station for security purposes, but the line between protecting travelers and intimidating them has been the subject of debate at this station.

In 2006, an Armenian couple described officers growing belligerent during a trip on the Southwest Chief the previous year when the couple was hesitant to agree to a bag search at Albuquerque. The couple said that the agents then pulled out Diana Arutinova’s bras and underwear from her bag, while making jokes, and threw clothing and shoes from her luggage onto the floor. Edgar Manukian demanded the officers’ names.

“You want my name? What are you gonna do about it, asshole?” Perry allegedly responded. Arutinova stepped between the men and said Perry then grabbed her by the arm and shook her so hard that her head struck the wall several times, not letting go until she screamed. Her arm was bruised from where he grabbed her, she later claimed in federal court. The ACLU of New Mexico that year helped the couple file a lawsuit against the United States government, Perry, and two other cops. (The ACLU of New Mexico’s Simonson says they later reached an out-of court settlement with the DEA.)

 

In 2008, a drug defendant accused Perry of perjury, prompting the 10th Circuit Court of Appeals to release an opinion stating that judges were “troubled” by the allegations and noting inconsistencies in Perry’s account of how he linked a suitcase with drugs to the suspect in question. But the defendant agreed to a plea deal shortly after the opinion was published, ending further inquiry into the matter. “No district court has ever found that Special Agent Perry was ever dishonest with the Court,” a federal prosecutor reminded a defense attorney trying to poke holes in a 2014 case — and so Perry is still at work.

Joseph Rivers, a rap musician from Detroit who performs as Joe Kush, boarded the Southwest Chief in Chicago in 2015, when he was 22, hoping to get his music career off the ground in Los Angeles.

He remembers a man asking every passenger in his car in Albuquerque if they would consent to have their bags searched for contraband.

Rivers responded yes, just like everyone else had, and the agent took him up on it. Special Agent Perry quickly found bundles of cash in Rivers’s bag totaling $16,000. Rivers said it was all the money he had, that he had gotten it from his mother, and that he was using it to film a music video. Perry listened to his story and then explained that the DEA would be seizing the cash.

DEA officer and colleague leaving Albuquerque Amtrak and Greyhound Terminal after searching bags on Amtrak Southwest Chief

 

Special Agent Perry and a colleague leaving the Albuquerque Amtrak terminal after searching bags on the Southwest Chief.

Photo: Harris Mizrahi

Rivers said he was stunned. He and other witnesses recalled him being the only black person in his coach car. And though he did have a prior criminal record, for possessing marijuana and allegedly delivering and manufacturing it, as well as a felony gun possession charge that was later dismissed, the DEA wasn’t actually arresting him or charging him with a crime. They were simply taking his money. Rivers later learned that this was all legal under civil forfeiture, the quirk of the American criminal justice system in which a person’s property can be seized even if they are not convicted, or even accused, of a crime.

“We don’t have to prove that the person is guilty,” Sean Waite, the agent in charge at the DEA’s Albuquerque office, told the Albuquerque Journal at the time. “It’s that the money is presumed to be guilty.”

Three years later, in February 2018, a woman called Beth boarded the Southwest Chief in Chicago, heading west. She was returning home to California after a business trip; what type of business, she doesn’t want to say.

“There are industries that are on the fringes, but not actually illegal,” she said in an interview. (Beth is a pseudonym; The Intercept agreed to withhold the woman’s real name because she was not criminally charged.)

This was all legal under civil forfeiture, the quirk of the American criminal justice system under which a person’s property can be seized even if they are not convicted, or even accused, of a crime.

The man who appeared outside her sleeper car in Albuquerque was charming, Beth remembered, but persistent. She initially declined to let Special Agent Perry search her room, after letting him search two of her smaller bags. She later saw him interviewing other passengers.

“He was mostly doing it to Latina people, doing the immigration thing maybe or something?” Beth said. “I wasn’t sure. ‘Who is this guy, why is he harassing these people?’” She interrupted Perry while he interviewed a group of Hispanic women downstairs, asking to see his credentials.

“OK. I noticed that you’re pretty nervous. Can you tell me why you’re nervous?” Perry responded.

Beth, not wanting to start a fight with a police officer, agreed to let him follow her back upstairs to her sleeper car. With Beth’s permission, Perry opened a suitcase she had stowed away in her room. It was filled with nothing but bundles of cash wrapped in tissue paper.

As Perry explained to her, “the only money I’ve ever seen rubber banded up in increments like that is drug money.” He and his partner left the train with the cash packed away in plastic evidence bags.

The U.S. government later sued to keep what they said was nearly $70,000 that Beth had been carrying. Beth hired a lawyer and pulled the transcripts from Perry’s recorder, arguing that that the search wasn’t consensual. But in March 2019, Beth signed a document agreeing to forfeit the cash rather than testify under oath about where it came from.

“I’m not a drug courier,” Beth told The Intercept. “They were just so bent on making their narrative fit that.”

Albuquerque Federal Courthouse Building

 

The Albuquerque Federal Courthouse building on March 18, 2019.

Photo: Harris Mizrahi

McKenzie, the drug dealer, also unsuccessfully fought his case on the basis that the search of his property on an Amtrak train was unconstitutional. As he told a judge at a hearing in 2011, “I want to go to trial, because I want to see who the government puts on this stand as this person who is credible, who sends the information.” In an earlier hearing, over objections from the U.S. attorney’s office, a DEA agent had testified that he received McKenzie’s itinerary from an informant in one of Amtrak’s ticketing offices, who had been trained to look for drug couriers by Perry and an Amtrak Police Department officer. The Amtrak employee received an unknown monetary reward based on the information they sent over.

McKenzie fit the profile of a drug courier, the DEA, argued, because he had been traveling from a “source” city (Flagstaff, Arizona) to a “destination” (New York) on a one-way ticket that cost $1,836. In court, McKenzie said that he had called Amtrak’s corporate headquarters himself and was told by an attorney there that Amtrak’s policy is to only send information about suspicious passengers to Amtrak police, not outside law enforcement agencies. McKenzie argued that Amtrak shouldn’t be sharing passenger itineraries at all and questioned whether there really even was an informant, as the DEA claimed. He implied that agents had obtained information about him, possibly illegally, in some other way that they weren’t being truthful about, which would have been grounds to get all the evidence they had on him tossed.

Last year, Greyhound tried to kick the DEA out of its Albuquerque station.

But prior defendants in Albuquerque had tried similar arguments, and the 10th Circuit Court of Appeals had determined in 2004 that it wasn’t illegal for law enforcement to access Amtrak passenger records because they weren’t the sole basis of arrests; the consensual encounters were.

When McKenzie’s case went before a jury in 2011, they could only rule on whether he was carrying a mixture containing a minimum of 500 grams of cocaine with intent to distribute. They found him guilty. McKenzie’s previous criminal record and his attempt to flee — by running in a semi-circle around officers, jumping 10 feet out of the train window, then scaling a fence at the edge of the station topped with concertina wire — meant that prosecutors could recommend a lengthy sentence. He’s currently serving 262 months in New Jersey. From prison, McKenzie sent me documents from his case, marking several pages with Post-its, including a note that a juror wrote. The juror misspelled his name, but it’s the sentiment expressed that matters to McKenzie.

“Why was Mr. Mckenzi approached?” the juror asked.

Passengers luggage stored on The Southwest Chief

 

Passengers’ luggage stored on the Southwest Chief.

Photo: Harris Mizrahi

In response to questions from The Intercept, the DEA said that they cannot discuss their investigative tactics, and Amtrak would only say that they work with numerous outside law enforcement agencies, including DEA agents in Albuquerque. Perry did not respond to a request for an interview.

“Amtrak cooperates fully with federal authorities and federal law,” Amtrak’s press team wrote in a prepared statement.

Greyhound bus service declined to address the allegations that Perry or other DEA agents had touched or opened passengers’ bags, but added that the company does not provide passenger manifests to outside law enforcement “unless it is an immediate life endangerment issue.” The statement directly contradicts testimony that Perry gave in March 2019, describing how he receives, via email from a confidential source, the record of passengers coming to Albuquerque on the Greyhound almost every day.

“I used to ask for them [the Greyhound passenger lists], but then they just started sending them to me, because that was kind of a general practice,” he testified. A spokesperson for Greyhound, Crystal Booker, said in an email that “the actions of the referenced anonymous source do not reflect the company’s policy and were done outside of the company’s knowledge.”

An email uncovered in a federal drug trafficking case from last year showed that Greyhound tried to kick the DEA out of its Albuquerque station. David Streiff, head of security for all of Greyhound North America, said in a June 2018 email to DEA Special Agent Jeff Armijo that he was “respectfully rescinding” the DEA’s access to the Albuquerque station, “effectively immediately.” Greyhound declined to comment about the email or what has happened since.

Albequerque Amtrak and Greyhound Terminal

 

The Albuquerque Amtrak and Greyhound terminal in March 2019.

Photo: Harris Mizrahi

When I encounter Perry on the Southwest Chief in mid-March, he moves slowly along the coach car, interviewing a few of the passengers returning to their seats. He keeps his voice low to maintain the element of surprise, though he doesn’t search most of the bags. An older woman with brown skin looks caught off-guard when Perry reveals his badge. Then she appears to open her purse for him.

Perry is running out of time before the train will have to continue without him, and possibly without a passenger or two, 70 miles northeast to Lamy, New Mexico. He hasn’t found any drugs or cash yet, and he’s getting increasingly irritated at me for recording him.

Perry “has the easiest job in the world because he is catching the lowest-level couriers.”

“You know how unsafe it is for me to put my name in a piece of paperwork? All over the country for everybody to read? You know how unsafe that is for my safety? You don’t care,” he says.

He walks away, his partner following, and exits the train. I’m left with the impression that Perry is unwilling to make a bust if someone is recording him.

The next month, in an arrest celebrated by the U.S. attorney’s office, Perry will recover 18 pounds of fentanyl from a 21-year-old woman riding the Southwest Chief in coach. He simply “asked for and received permission” to search her suitcase. She later admitted that she was transporting the drugs in exchange for $2,500.

Brian Pori, a longtime attorney with the federal public defender’s office in Albuquerque, has represented numerous couriers caught at the train station. He argues that these raids do nothing to stop the flow of illegal drugs.

Perry, he said, “has the easiest job in the world because he is catching the lowest-level couriers.”

The post DEA Agents Ambush Amtrak Passengers With Controversial Searches and Seizures appeared first on The Intercept.

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