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The DEA doesn't track 'cold consent' stops at airports. Is there a hidden racial bias?

After an airport security checkpoint, the DEA may stop you.
After an airport security checkpoint, the DEA may stop you.
Michael Nagle / Getty Images News

The Drug Enforcement Administration inadequately tracks and trains officers for "cold consent" stops conducted at mass transit locations, according to a report released in January by the Justice Department's Office of Inspector General.

You're probably thinking, "What the hell is a cold consent stop?" Well, it's a wonky term given to a controversial encounter that some civil rights advocates say allows racial profiling. Here's what you need to know.

What is a cold consent stop?

DEA seal

The seal of the Drug Enforcement Administration. (Mandel Ngan / AFP via Getty Images)

A cold consent encounter is a type of stop in which a DEA agent is supposed to ask for consent before stopping or searching someone the agent deems suspicious, often for alleged drug trafficking. These types of stops are primarily done in transportation facilities, such as airports and train stations, and can be prompted by little more than an officer's intuition.

These stops can be fairly profitable for the DEA and other police agencies working with drug task forces. Through civil asset forfeiture, officers can seize and keep private property that they suspect is being used in a crime — even without ever filing criminal charges or proving wrongdoing.

The inspector general's report found DEA interdiction task forces claimed $163 million in 4,138 individual cash seizures between 2009 and 2013, although the report couldn't distinguish how much of this money came from cold consent stops, due to insufficient data collection. About 21 percent of these seizures were formally contested; the DEA returned all or a portion of the seized cash in 41 percent of contested cases — a total of $8.3 million.

What's wrong with cold consent encounters?

police airport

A police officer stands guard at an airport. (Josh Edelson / AFP via Getty Images)

Since the stops are based on very subjective evaluations by independent officers, critics worry they could be based on racial profiling. The Justice Department acknowledged these concerns in 2003, after conducting a survey of federal agencies about racial and ethnic bias in law enforcement operations.

"When you don't require police officers to have an adequate factual basis for stopping people, the people they do stop very often feel that they've been profiled," said Hugh Handeyside, an attorney with the American Civil Liberties Union. "It's not appropriate to stop people for no reason whatsoever."

The inspector general's investigation came about after the office received complaints from two black women about separate cold consent stops at an airport. The report claimed the complaints were unsubstantiated, but they still led to a systemic evaluation of cold consent stops.

The findings come as the public — and the Justice Department — have shown increasing concern for racial disparities in police use of force and the criminal justice system as a whole, particularly in response to the police killings of Michael Brown in Ferguson, Missouri, and Eric Garner in New York City.

In recent years, critics have also scrutinized intrusive police tactics, like cold consent stops and New York City's "stop and frisk" policy, for disproportionately targeting minority communities.

What did the inspector general's investigation find?

Michael Horowitz

Justice Department Inspector General Michael Horowitz. (Chris Maddaloni / CQ-Roll Call Group via Getty Images)

The inspector general concluded the DEA doesn't collect enough data — particularly demographic information — on the people they stop.

"We found that [task forces] do not collect demographic information about each cold consent encounter they conduct and that without this information the DEA cannot assess whether they are conducted in an unbiased manner," the report concluded.

There were also questions about the stops' effectiveness in catching and stopping drug trafficking. The inspector general's office wasn't able to independently evaluate the effectiveness of the stops due to a lack of data. But the report noted DEA data from 2000 to 2002 found the stops had "a substantially lower success rate" than other methods. Supervisors and managers also told investigators they "questioned the effectiveness of these encounters."

The investigation also found that the DEA inadequately trains and oversees the use of cold consent stops, leading to confusion about protocol and potential abuse. In some cases, DEA officials misrepresented themselves and a suspect's ability to contest a search. For example, after travelers go through security checkpoints in airports, DEA officials sometimes describe cold consent stops as a "secondary inspection" — possibly misleading people into believing the searches are just another obligatory aspect of airport security.

The DEA says these stops are one of the many tools the agency uses to stop drug trafficking at transit facilities, prompting the agency to look into various changes in response to the report, particularly better, mandatory training and data collection.

Hat tip to McClatchy DC for first covering the report.