In United States v. Fowlkes (9th Cir. 2015) , Case No. 11-50273, defendant’s conviction for possessing and distributing cocaine was reversed in part on appeal where the court found that officers’ forcible removal of an unidentified substance from defendant’s rectum was an illegal search under the Fourth Amendment where the officers did not have medical training or a warrant.
On September 13, 2006, after witnessing what appeared to be a narcotics transaction between Fowlkes and an unidentified man, Long Beach Police Department (LBPD) officers requested that a marked car execute a pretextual traffic stop. Fawkes’ vehicle was pulled over for an expired registration and Fowlkes and his passenger were asked to exit the vehicle. Fowlkes denied consent to search the car. But officers claimed they saw marijuana in the open side panel of the car and a substance they believed was cocaine base on the front seats of the car. They arrested Fowlkes for felony drug possession and transported him to the Long Beach City Jail for processing.
At intake, Fowlkes was strip searched by officers in the jail's strip search room. Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and “assistance” in the form of additional officers because he thought Fowlkes might have drugs. There was conflicting evidence as to whether Fowlkes was trying to push an item further into his anus.
To prevent that, Gibbs “delivered a drive stun tase to the center portion of defendant's back.” Fowlkes' arms went straight into the air, and the officers handcuffed him. Fowlkes began to “squirm[ ]” and “struggl[e],” and the officers “lean[ed] him against the wall, · brace[d] his body up against the wall” so that “[h]e end[ed] up being bent over.” With Fowlkes in this position, the officers testified that they could see what appeared to be a plastic bag partially protruding from Fowlkes' rectum. Officers continued to “brac[e] [Fowlkes] up against the wall” to prevent him from resisting.
At this point, Fowlkes was handcuffed and incapacitated by five male officers. Fowlkes had no ability to destroy or further secrete what was in the plastic bag. Neither Sergeant Gibbs nor the other officers could tell what, if anything, the plastic bag contained while it remained in Fowlkes' rectum. Nor could they determine how large it was or how far it extended into Fowlkes' body. Despite this, and despite the fact that none of the officers had any relevant medical training, the officers did not attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally.
Instead, Sergeant Gibbs forcibly “retrieved” the bag. He put on the protective gloves he had brought along to the “search” and pulled the object from Fowlkes' rectum without the assistance of anesthesia, lubricant, or medical dilation. Sergeant Gibbs testified that he was able to remove the object using his thumb and index finger without penetrating Fowlkes' anal cavity. Officer Harris testified that the removal itself was a difficult, abrasive procedure: “I watched the entire process of him removing it in his fingers. [The object] went from a dime size to a penny size to a nickel size to a quarter size to somewhat near a golf ball size as it was taken out. Officer Harris further testified that he could “see blood and what looked to be feces” on the plastic bag after it had been removed. Photographs of the object that are included in the appellate record confirm that the object was covered in blood.
On appeal, Fowlkes argued that the district court erred by denying his motions to suppress the evidence extracted from his rectum at the jail because this evidence was retrieved in an unreasonable manner, in violation of his Fourth Amendment rights, among other issues.
Searches that require intrusion into a person's body implicate greater constitutional concerns. See Bouse v. Bussey, 573 F.2d 548, 550 (9th Cir.1977) (per curiam) (quoting Schmerber v.. California, 384 U.S. 757, 770 (1966) (“Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.”)). An intrusion into the human body implicates an individual's “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985). Therefore, while visual cavity searches that do not require physical entry into a prisoner's body are generally permissible without a warrant during the jail intake process, physical cavity searches generally are not. See Schmerber, 384 U.S. at 769–70 (“The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.”).
Here, the LBPD officers went beyond the visual cavity search found reasonable in Bull. They seized an unidentified object of unknown size from Fowlkes' rectum, subjecting him to a physically invasive, painful experience and thereby implicating his “most personal and deep-rooted expectations of privacy.” Lee, 470 U.S. at 760. At the same time, however, the officers, while acting without a warrant and engaging in physical contact, were not acting “on the mere chance that desired evidence might be obtained.” Schmerber, 384 U.S. at 770. They had reason to believe desired evidence was located inside of Fowlkes' body because Sergeant Gibbs could see a portion of an object which he thought Fowlkes was attempting to further secrete. Thus, they conducted a warrantless physical seizure of contraband they actually observed during the course of a permissible warrantless visual search.
The Ninth Circuit determined that the issue for it to decide was whether the officers' warrantless, physically invasive seizure of actual (not merely suspected) contraband, was unreasonable under the Fourth Amendment. The court held the officers’ conduct was unreasonable.
In reaching this conclusion, the court applied the same principle in analyzing the constitutionality of a seizure found in a nearly identical context involving extraction of evidence from a suspect's rectum in United States v. Cameron, 538 F.2d 254, 258 (9th Cir.1976) (“[A] clear indication that the suspect is concealing contraband does not authorize government officials to resort to any and all means at their disposal to retrieve it.”); see also United States v. Edwards, 666 F.3d 877, 884 (4th Cir.2011) (“The manner in which contraband is removed from a suspect during a sexually intrusive search, no less than the manner in which the contraband initially is discovered, must be considered in determining under the Bell analysis whether the search was reasonable.”). In determining whether an individual search or seizure is reasonable, we evaluate the “totality of [the] circumstances,” Missouri v. McNeely, 133 S.Ct. 1552, 1559 (2013), including “[1] the scope of the particular intrusion, [2] the manner of its conduct, and [3] the justification for initiating it.” Cameron, 538 F.2d at 258 (internal quotation marks omitted).
Here, the scope of the seizure intruded beyond the surface of Fowlkes' body, interfering with his bodily integrity. As the Supreme Court explained in Schmerber, “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” 384 U.S. at 767. The Court has subsequently described the interest in bodily integrity as implicating the “most personal and deep-rooted expectations of privacy.” Lee, 470 U.S. at 760 (holding a compelled surgical intrusion to remove a bullet, fired by a robbery victim, from the chest of the suspect unreasonable under the Fourth Amendment); see also Cameron, 538 F.2d at 258 (“[T]he fourth amendment imposes a stricter standard on the ‘means and procedures' of a body search than does the due process clause.”). And here, the seizure interfered with a particularly personal, private area of Fowlkes' anatomy.
The court found that LBPD officers conducted a warrantless forcible seizure of an unidentified item of unknown size from Fowlkes' rectum by non-medical personnel who (1) did nothing to assure that the removal was safe and performed under sanitary conditions; (2) were aided by the use of a taser but not by lubricant; (3) seized the object in the absence of exigent circumstances; and (4) acted in violation of LBPD policy. No single factor is dispositive, but under the totality of the circumstances presented here, we conclude that the manner of this seizure was unreasonable. See Cameron, 538 F.2d at 258–60. The district court therefore erred in admitting the unreasonably seized evidence at Fowlkes' trial.
Finally, numerous jurisdictions have concluded in similar circumstances that such warrantless conduct violates the Fourth Amendment. This persuasive authority reinforced the court’s conclusion that the seizure of evidence from Fowlkes' rectum, under the totality of the circumstances, violated his Fourth Amendment rights, and that the district court therefore should have suppressed the evidence.
Copyright © 2015 Christine Esser
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