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Judge Tosses 16 Kilos of Meth Evidence

CORPUS CHRISTI (CN) - Sixteen kilos of methamphetamine the Border Patrol found in an SUV was struck from the record by a federal judge because the agents didn't get the driver's consent to X-ray the vehicle.

After the Sept. 11, 2001 terrorist attacks, Customs and Border Protection bought 75 Z Backscatter Vans to X-ray vehicles at border checkpoints, according to the nonprofit investigative reporting group ProPublica.

The vans are made by American Science & Engineering, which sells them for $700,000 to $1 million.

Rather than sending radiation through an object, as with medical X-rays, backscatter X-rays transmit radiation and collect its reflections to create an image.

American Science, of Massachusetts, touts the X-ray van on its website: "Its easy-to-read image quickly and clearly reveals threats like explosives, drugs, currency, and trade-fraud items such as alcohol and cigarettes - even in high-throughput environments like border crossings and security checkpoints."

Border Patrol agents used one of the vans to scan Erik Hernandez's vehicle on Oct. 30, 2014.

According to an arrest report, Erik Hernandez pulled a Dodge Durango into the Sarita, Texas checkpoint that day with his brother, Jesus Hernandez, riding shotgun.

As Border Patrol agent Matthew Crews asked the brothers if they were U.S. citizens, Erik's behavior made him suspicious, Drug Enforcement Administration agent Charles Schuetz states in the report.

"Erik Hernandez was speaking very fast with an excited tone as he answered BPA Crews' questions," the document states.

Crews noticed the car's check-engine light was on, and Erik told him he didn't know why, but it had been for a few years.

After both brothers said they were U.S. citizens, Crews asked Erik for permission to search the back of the vehicle and Erik consented.

Neither Crews' visual inspection nor a K-9 search turned up any contraband.

Erik then gave Crews permission to let a K-9 search his vehicle in a secondary inspection area.

While the dog searched the vehicle, Border Patrol Agent Aurelia Valdez questioned the brothers and noticed they were "showing signs of increased nervousness such as avoiding eye contact ... and having trouble sitting still," the arrest report states.

The agents saw that border crossing data showed Erik often traveled to and from Mexico.

They told Erik to drive his vehicle into an area designated for searches by a Z Backscatter Van, and the scan turned up "several anomalies in the door panels," leading to the discovery of 16 kilos of methamphetamine wrapped in several electrical-taped bundles, according to the charging document.

DEA Agent Schuetz said the brothers came clean when he questioned them.

Jesus told Schuetz he had accompanied his brother to the International Bridge in Matamoros, Mexico the day before, where they met several people they did not know and Erik gave his Dodge Durango to them.

Erik told Schuetz the people returned his vehicle a short time later "with an unknown drug secreted within the vehicle," the report states.

"Erik Hernandez stated that he was instructed to take the unknown drugs to Dallas, Texas and that he was to be paid $12,000 upon successful delivery," Schuetz said in his report.

Erik told the agent he planned to give his brother half of the money.

"Erik Hernandez further stated that he only 'did it' because he needed the money and that he thought Jesus Hernandez needed the money," according to the report.

U.S. District Judge Nelva Ramos Gonzales granted the Hernandez brothers' motion to suppress the methamphetamine on Tuesday.

Gonzales cited Border Patrol agents' testimony that they could not remember which of them had asked Erik for consent to X-ray his vehicle, or if any of them actually obtained his permission.

Gonzales said the X-ray violated the brothers' Fourth Amendments protections against illegal searches.

In a separate case last week, Gonzales granted a suppression motion for 8 kilos of cocaine that Border Patrol agents found in a car at the same checkpoint.

Gonzales was nominated to the federal bench by President Barack Obama in 2011.

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