Oklahoma law enforcement has arrested numerous amateur and professional bodybuilders in an ongoing  investigation into the distribution of anabolic steroids that started in December 2007. Special Agent R. Brian Surber, of the Oklahoma Bureau of Narcotics and Dangerous Drugs Control (OBNDD), has spearheaded the investigation that has resulted in numerous arrests. It has also resulted in the steroid raid of a U.S. Secret Service Agent that did not result in any arrests or criminal charges.

The Oklahoma investigation may be setting a trend in law enforcement with the profiling of bodybuilders as users of anabolic steroids. Special Agent Brian Surber has seemingly perpetuated “physique profiling” in several steroid cases. Surber has allegedly shown a bias towards using bodybuilder-type physiques as putative evidence of anabolic steroid use. He has used photographs of a suspect’s muscular physique as part of the probable cause to support the acquisition of search warrants  (”Multiple bodybuilders busted for anabolic steroids in Oklahoma – more busts on the way“, April 17).

As I said, I’ve spoken to [Brian Surber] (*now on multiple occasions) and can tell you that he’s very sharp – as part of his probable cause warrants, he even includes pictures of the “alleged” steroid users. Think about that for a second…those pictures of Darrell Terrell and Sherry Smith, which were all over the Internet showing off their physiques – ultimately helped lead to their downfall, and were used as part of the probable cause to issue a search warrant for steroids on them. 

It should be noted that the Oklahoma investigation has not used “physique profiling” as a primary predictor of steroid use. Physique as a criterion for obtaining search warrants appears to be one among many factors. However, the emergence of physique profiling in the war on steroids should serve as warning to bodybuilders who have not traditionally been subject to discrimination by law enforcement based upon their physical appearance. 

OBNDD Special Agent Brian Surber is NOT a rogue agent blatantly violating the law in a witch-hunt against bodybuilders. Surber is an accomplished attorney intimately familiar with search and seizure law with extensive “in the field” experience. Accordingly, potential efforts by the Oklahoma Bureau of Narcotics to profile bodybuilders should be taken very seriously.

R. Brian Surber was formerly the Deputy General Counsel for the OBNDD, a prosecutor for the Eighth District Drug Task Force in Oklahoma, a special assistant attorney general for the State of Oklahoma multi-county grand jury division and a special prosecutor for the Oklahoma County District Attorney’s Office. Surber has also authored two books, “The Investigator’s Guide to Search and Seizure” and “The Prosecutor’s Guide to Fourth and Fifth Amendment Motions to Suppress“.

At one time, most of Surber’s efforts went toward legitimately making our communities safer; Surber received considerably accolades as he helped thwart murderers, shut down methamphetamine labs, and catch rapists.

[Brian Surber] has even done undercover work, posing as a hitman. And for all of the people who say “these guys should be going after meth labs” – you can check Agent Surber’s record, because he’s done that too. He’s even caught rapists (check out this story – you’ll need to scroll down and read the letter he wrote, detailing how he solved a rape case from another state!).

For whatever reason, the focus of Surber’s considerable knowledge and experience seems to have been diverted to the the investigation and arrest of bodybuilders for non-violent crimes involving anabolic steroid possession and distribution.

Given the role of Brian Surber in the Oklahoma steroid investigations and the use of “physique profiling”, it worthwhile to review some of his recommendations and advice aimed at law enforcement with special considerations as to how it could apply to bodybuilders.

An article written by Surber for the Oklahoma State Game Warden Association may provide some insight into how law enforcement officials can attempt to accomodate the Fourth Amendment when using a bodybuilder-type physique as putative evidence of steroid use in establishing probable cause (”Search and Seizure For The Oklahoma Game Warden“, 2005).

A game warden needs probable cause to arrest and probable cause to search. Forget all of the hoopla surrounding the definition of probable cause. It is simply a FAIR PROBABILITY. Just ask yourself, With the facts I know, is there a fair probability that: (1) I’ll find some evidence, (2) the suspect committed the crime (i.e., if you hear a high powered rifle shot in late November, forty-five minutes later the suspect walks out of the woods with blood on his hands and pants, is there a FAIR PROBABILITY that he shot a deer?).

The important standard of evidence for probable cause involves “fair probability”. How could Brian Surber’s interpretation of “fair probability” be applied to the profiling of bodybuilders?

Is there a fair probability that bodybuilders competing in the NPC and/or IFBB uses anabolic steroids? Is there a fair probability that the bodybuilders committed a crime to obtain anabolic steroids? E.g. if you see an extremely muscular and well-defined bodybuilder compete in an IFBB or NPC competition, is there a fair probability that he uses steroids?

Is you see any big, muscular and lean individual walking out of a commercial gym in a tank-top, is there a “fair probability” that he (or she) uses steroids? Then, why not use his (or her) bodybuilder-type physique as part of the probable cause for a search warrant?

Brian Surber’s interpretation of “reasonable suspicion” sets an even lower standard of evidence as the requirement to detain an individual.

You need a reasonable suspicion to detain a suspect or stop his vehicle. The courts have defined this as “much less demanding than probable cause and considerably less than a preponderance.” That means that your suspicion could be flat out wrong a considerable majority of the time. That is not much guidance and this is a tricky area of law. You should be okay if (1) you are suspicious, and (2) you can articulate why (i.e., more than a hunch).

Surber’s interpretation would suggest that it is acceptable for law enforcement to detain bodybuilders and/or stop their vehicles if the officer can make up (and “articulate”) a good reason. After all, there is apparently nothing to lose since law enforcement can be wrong most of the time.

Next, Surber offers some tips for “articulating probable cause and reasonable suspicion”.

Tips for Articulating Probable Cause and Reasonable Suspicion:

Expert Testimony: Rather than a judge or prosecutor telling you whether you have probable cause or a reasonable suspicion, you are more equipped to tell them. [...] Here is the trick: You must be able to describe to your prosecutor or judge why you thought this activity was suspicious. For instance, if you are set up on surveillance, don’t just say that I observed the defendant’s vehicle traveling at a suspicious speed. Rather, say that you have observed dozens of vehicles traveling down this road, farmers and local residents travel at approximately X speed, this vehicle was in an area known for road hunting, the vehicle traveled at a speed consistent with deer poaching and the occupants appeared to be scanning the clearings, etc.

How would a law enforcement investigator potentially utilize Brian Surber’s “tips” to target bodybuilders with probable cause?

Brian Surber provided us with an example when he wrote the following in support of a search warrant leading to the seizure of three computers during the Maryland SWAT team raid of a United States Secret Service Agent. Surber “articulates” the belief that bodybuilders’ use of computers to communicate via email, discussion of steroids using the Internet, and/or storage of pictures of themselves with other steroid-using bodybuilders are consistent with steroid use.

I have also learned from other experience steroid investigators that bodybuilders and anabolic steroid users abusing performance enhancing drugs utilize personal computers as a form of communication. I have also learned that individuals I have investigated for steroids in Tulsa were in fact communicating over their computers regarding anabolic steroids, growth hormone, and other performance enhancing drugs. I have also found in my investigation that the users of anabolic steroids often maintain photographs (image files) on their personal computers and also found these photographs are relevant to establish relationships between the co-conspirators.

Regrettably, Brian Surber has gone from a prosecutor and agent who legitimately made our communities safer by putting violent criminals behind bars to someone who spends an ever increasing amount of time trying to put non-violent bodybuilders behind bars on steroid crimes. 

The flawed steroid laws are ultimately to blame for the colossal waste of taxpayer resources used for steroid investigations; however the police perpetuation of physique profiling, and the inevitable false positives, in the war on steroids is reason for concern. Profiling by law enforcement could have particularly dire consequences for a marginalized bodybuilding subculture.