Jeff Proctor/New Mexico In Depth
Anthony Pounds traded the clothes off his back for some crack cocaine.
Pounds, a 49-year-old black man who is homeless and struggles with mental health issues, meandered around the Circle K parking lot at Pennsylvania and Central NE on May 9 until a man arrived and asked what he wanted to buy.
“Hard,” Pounds said in response, referring to crack, then told the man he only had $5 — not enough to afford the $20 rock for sale. The man asked if Pounds would be willing to trade his jacket and the $5. Pounds agreed, court records show.
A few seconds later, Pounds was in handcuffs, facing a felony drug possession charge.
The man holding his blue jacket and the $5.10 in coins that had been in the pocket — the man who sold Pounds the crack — was an undercover Albuquerque police officer.
Pounds was one of at least seven people swept up that day in APD’s “reverse sting” operation, in which officers took drugs confiscated in previous cases, posed as dealers, sold them on the street, then arrested the buyers.
Most of them, like Pounds, were homeless people of color, according to people familiar with the operation and court and jail records reviewed by New Mexico In Depth. Some, like Pounds, were living with mental illness. And like Pounds, all of them gave undercover officers what little of value they had in exchange for drugs.
The reverse sting has raised legal and ethical concerns from Albuquerque’s public defenders, prosecutors and a Metropolitan Court judge since the document authorizing it spilled into public view on May 13 when the Burque Media blog published it.
The operation also raises questions about the tension between police conduct that appears to create crime for the purpose of arresting homeless people and the pressure placed on officers by police higher-ups to respond to community concerns and blunt the flow of drugs on Albuquerque’s streets.
Legal and police practices experts, advocates for homeless people and drug policy reform, a public defender and a recently retired APD officer interviewed for this story decried the operation.
They called it a waste of resources — reverse sting operations require up to 20 officers, many of whom are working overtime — in a city beset by police manpower problems and in the midst of upticks in violent and property crimes.
All of those interviewed described the operation as an example of criminalizing drug addiction and homelessness. Some were flabbergasted to learn details of APD’s conduct, saying it cuts against the grain of a national shift in attitudes that has led to cities treating addiction as a public health issue rather than charging the addicts and homeless people with crimes that ultimately keep them on the streets.
Two of the attorneys interviewed also said the APD operation is on shaky legal ground and likely runs afoul of New Mexico’s entrapment laws.
“This is taking advantage of people who have a medical condition known as addiction. It is police misconduct focused on a vulnerable population,” Mark Donatelli, a Santa Fe-based criminal and civil rights attorney who has worked in the state since the late 1970s, said in an interview with New Mexico In Depth:
“What you’re describing seems clearly to be objective entrapment,” Donatelli added, referring to one of two types of entrapment recognized in New Mexico law. “It exceeds the standards of proper police investigation, and that’s the measure.”
Scrutiny of the operation brings fresh controversy to a police department that is beginning a multi-year, court-ordered effort to reform what U.S. Justice Department investigators called a “culture of aggression” that led to more than 40 police shootings in five years, rampant excessive use of force and a leadership structure that ignored it.
Many of the people shot were living with mental illness, struggling with addiction or both. Some were homeless.
APD did not respond to NMID’s requests for comment by publication time.
The department has defended the operation in interviews with the Albuquerque Free Press newspaper and KRQE-TV, saying it has been successful in combating crime. Calls for police service have gone down in the area where detectives made the arrests last week, officials said. The department also said it has used reverse stings for more than 20 years, and that other law enforcement agencies around the country use them, too.
$3 and some colic medication
In late February, APD narcotics Detective Marc Clingenpeel swore out an affidavit outlining the reverse sting operation. It said APD has received complaints from residents who were asked on the street whether they wanted to sell or purchase drugs. APD’s previous attempts to stanch the flow of narcotics have “not been completely effective,” the affidavit said.
So the department planned to take drugs from its evidence room — and even manufacture its own crack from seized powdered cocaine — and sell it to would-be users, according to the affidavit. Officers would not be allowed to initiate contact with prospective buyers, except to “use gestures that are not indicating for a person to stop, but are commonly used by drug dealers to let a potential customer know they are in the area selling. These gestures will be nodding or shrugging of the arms and shoulders.”
Second Judicial District Court Judge Brett Loveless signed an order memorializing the affidavit, essentially allowing the operation to proceed until Dec. 31.
Citing the Judicial Code of Conduct, Loveless through a court spokesman declined to be interviewed for this story.
District Attorney Kari Brandenburg says her office never signed off on the sting, as Clingenpeel claimed in his affidavit. Furthermore, Brandenburg told NMID that she “would discourage such practices” as the reverse sting given the “critical needs of our community.”
The Law Office of the Public Defender filed a court motion to quash Loveless’ order, saying the APD affidavit contained false statements and the operation itself violates state law.
It is unclear how many individual operations APD has conducted under the umbrella of Loveless’ order, or how many people have been arrested.
Up to now, none of the controversy has focused on who was targeted in the one known operation or how APD officers made the arrests on May 9. Using court records, including the charging documents filed against the seven people arrested, and an interview with the public defender who represented them in court, NMID is revealing for the first time some of those specifics.
Six of the seven people, including Pounds, were homeless. Three of them struggle with mental health issues; one has been found incompetent to stand trial in the past. Three of the people were Hispanic, two were black, one was Native American, and one was white.
None of them had much to offer the erstwhile drug dealers.
In exchange for crack and methamphetamine, which came from the APD evidence room, officers accepted a Cricket phone and a Samsung tablet; a police radio; $3 and some colic medication; $5 in cash on two separate occasions; $10 in cash; and Pounds’ jacket and $5.10 in coins.
APD made the arrests near the intersection of Pennsylvania and Central NE, an area of the city dotted with pawn shops, adult bookstores, title loan joints and convenience stores. Evidence of poverty is all around, and law enforcement has long considered it one of the city’s most dangerous areas.
When NMID visited the area recently, two marked APD patrol cars pulled into the parking lot of the Circle K at Pennsylvania and Central — where undercover had made the majority of the arrests in the reverse sting.
APD charged each of the seven people with felony drug possession and booked them in to the Metropolitan Detention Center. One man, 47-year-old James McCloud, also was charged with evidence tampering because he allegedly swallowed a quantity of crack as police tried to arrest him, court records show. Another man, William Rodriguez, dropped the crack police sold him before other officers moved in to make an arrest. He was charged anyway.
Three of the seven have previous felony convictions, a NMID review of court records showed. The other four do not.
Brandenburg said in an interview that she had not received any of the seven cases as of Friday. “We’ll take a look at them and review them to see whether we will prosecute,” she said.
The arrests fared poorly under their first legal review.
At an initial court appearance on May 10, Metropolitan Court Judge Courtney Weaks released all seven people from jail on their own recognizance after saying she did not approve of the methods police used to arrest them. Weaks also found that in four of the cases, the police did not have probable cause to make an arrest.
Assistant Public Defender Jonathan Ibarra represented six of the people at the court appearance. In an interview, he said he argued before Weaks that the operation “is a completely inappropriate use of taxpayers’ money and officers time to be selling drugs to homeless people for the purpose of arresting them for possession.”
“Creating crime in order to arrest people for that crime makes no sense to me,” said Ibarra, who spent 12 years as a prosecutor and several months as a District Court judge before moving to the public defender’s office. “Going after homeless addicts — and that’s who they were arresting — and trying to do everything they could to make a deal, including saying: ‘I’ll take your jacket, your phone,’ is outrageous and offensive.”
He said he was “stunned” when he read the charging documents. In short order, he began to think about the larger picture.
“The police are doing this, and it’s awful,” Ibarra said, “but they need to be given more options so that this can stop.”
‘Contrary to all the research’
In many American cities, officials during the past several years have begun to shift issues of drug addiction and homelessness out of the criminal justice system and into public health. Seattle, Santa Fe and other cities use law enforcement diversion programs in which police and prosecutors work nonviolent offenders to avoid criminal charges by getting treatment and other services.
Albuquerque Mayor Richard Berry’s administration has embraced aspects of those programs and started some of its own. Berry has received praise and positive press coverage for offering homeless people jobs and, through another program, housing. And since the Justice Department launched its investigation, crisis intervention training has become mandatory for all APD officers. The department also has a civilian outreach team designed to people in mental health crises.
The reverse sting operation that netted at least six homeless people earlier this month appears not to align with those efforts.
“This goes contrary to all the research, the federal policy, best practices and 21st Century policing models that show the criminalization approach is such a poor use of resources,” said Eric Tars, senior attorney for the Washington, D.C.-based National Law Center on Homelessness and Poverty, an advocacy group that focuses on policy and litigation. “Drug addiction and homelessness do not belong in the criminal justice system.”
A spokeswoman for Berry did not respond by publication time.
Tars pointed to studies that show treating addiction and housing the homeless costs one-and-a-half times less than sweeping addicts and homeless people into the criminal justice system. The costs to people’s lives, he said, is more difficult to measure.
All seven of the people APD arrested May 9 had been arrested before.
For example, William Rodriguez, 52, has been arrested at least 14 times, court records show. Many of his misdemeanor convictions are for crimes often associated with homelessness and addiction, such as shoplifting, drinking in public and trespassing. Rodriguez has no felony convictions.
In fact, only three of the seven have previous felony convictions. Pounds, the man who traded his jacket for crack, is one of them. He has been arrested at least 24 times, including nine misdemeanor arrests for trespassing. His five felony convictions include drug trafficking, auto burglary and assault.
Tars said the four who aren’t convicted felons face severe consequences if their drug possession cases go forward.
“Once you have a conviction or even an arrest on your record, the barriers to securing employment or even getting subsidized housing to get you off the streets begin to increase,” he said. “It keeps them in homelessness and makes it harder to address their mental health needs or get clean and sober. It perpetuates the problem and ensures there’s going to be another police encounter like the one that led to these charges.”
Emily Kaltenbach, New Mexico state director for the Drug Policy Alliance, a group that advocates for drug law reforms, questioned how operations like the reverse drug sting could improve public safety. She said officers should focus on the increasing gun and violent crimes in the city, not arresting homeless people for small amounts of drugs.
Details of the operation “shocked” Kaltenbach, she said.
“It’s really contrary to the important effort of rebuilding trust between law enforcement and communities,” she said.
‘Pressure from higher up’
Reverse sting operations are nothing new in law enforcement. But they have evolved through the years into opportunities for abuse, said Michael Levine, a New York-based former Drug Enforcement Administration agent who now works as a law enforcement instructor and trial expert on a wide range of issues, including drug stings.
“It used to be that they wouldn’t let us do it unless we were going after organized crime figures who were well-documented drug dealers,” Levine told NMID. “Then the local cops and FBI began doing these low-level stings. Now look where we are.”
He said the operations often lack sufficient guidelines and oversight, leaving police free to make sometimes questionable decisions about whom to arrest. Levine also criticized judges who take police at their word to be experts, then sign off on borderline operations.
In the case of APD’s operation, he said, Judge Loveless should have had a dispassionate expert reviewing data to support the need for the reverse sting.
“The cops in this thing you’re describing sound like they’re barely trained,” Levine said. “These guys belong in a different business — shoe sales? They don’t belong in law enforcement.”
A former Albuquerque police officer with extensive experience in sting operations said APD has used reverse stings since at least the mid-1990s. He said by the mid-2000s, the department’s narcotics unit would get as many as 300 requests a month to curb drug activity.
Often, the former officer said, command-level supervisors would lean on the unit to make arrests and assuage community concerns.
“There was a lot of pressure from higher up to do something about the drug problem,” said the former officer, who spoke on the condition of anonymity because he still has dealings with the department and fears retaliation for discussing undercover operations publicly. “They’d start beating the drum, and we’d feel the pressure. So we would start going out and doing things.”
However, he abhorred several stings. His preference was to target mid- and high-level dealers with traditional stings in which undercover officers purchase drugs.
“These reversals are a dinosaur of the past,” the former officer said of the reverse sting. “We have more tools now, with community policing and other things. These things target the homeless and unfairly criminalize the poor. We don’t need to be doing this anymore.”
As many as 20 officers are required for a reversal sting, he said, to perform a variety of roles. And the operations are more dangerous for officers than other types of undercover work. Street deals come with more unpredictability and potential violence than any other kind of police work, the former officer said.
He questioned details in Clingenpeel’s affidavit, particularly whether APD had the data to support the claims that residents had complained of being approached about narcotics sales on the street and that previous efforts to blunt drug sales had failed.
“If you’re having to use shrugs and nods to get the attention of drug users, I doubt you can justify that there are complaints coming in from the community,” the former officer said.
Officers who took part in the operations rarely discussed where the line was between legal police work and entrapment, the former officer said.
Ibarra, the public defender, said he doesn’t expect any of the people arrested in the May 9 reverse sting to be indicted. Attorneys already are working on an entrapment claim in case they are.
Among the arguments Ibarra said he would make would be that the APD operation constituted “objective entrapment,” which means the officers’ conduct exceeds the standards of proper police investigations. It differs from subjective entrapment, which means the law enforcement operation could have ensnared people who were not predisposed to committing a crime.
The May 9 reverse sting goes beyond what APD did in a similar operation in the 1990s that led to one of the state’s seminal Supreme Court opinions on entrapment, Ibarra said. In the case of Vincent Vallejos, the high court upheld his drug possession conviction but spelled out the rules for what the police can and can’t do.
Donatelli, the longtime Santa Fe-based attorney, worked on the Vallejos case. He said in an email that various aspects of Clingenpeel’s affidavit and Loveless’ subsequent order are not supported by state statute.
The law, he said, does not cover releasing evidence from previous cases for sting operations. Further, it does not give the court jurisdiction to approve the use of the drugs “as being consistent with the due process rights of targeted citizens.”
Further, New Mexico law does not provide judges guidelines to approve operations such as reverse stings, Donatelli said. And the law does not give judges the authority to let law enforcement manufacture drugs — as with Clingelpeel’s affidavit, which says APD can use powdered cocaine from its evidence room to make crack.
Anthony Pounds, the man who traded his jacket and $5.10 in coins, was released from the Metropolitan Detention Center on May 12. All but one of the others arrested in the reverse sting sting were released last week as well.
Ibarra, their public defender, said he was not able to locate any of them for interviews with NMID.
“Unfortunately, these folks are transient, and that makes them tough to make contact with,” Ibarra said. “I still can’t wrap my brain around selling drugs to homeless people so you can arrest them. It is unconscionable … What I hope comes out of this is that (APD) just stops and decides to spend some resources on programs for diversion, mental health services and responding to actual calls for service.”
Editor’s Note: NMID will update the story if APD or the Berry administration respond to our request for comment.