Ninth Circuit: “Brutal” Cavity Search Violated Fourth Amendment
by Mark Wilson
The Ninth Circuit Court of Appeals held on August 25, 2014, in a 2-1 decision, that a “brutal” warrantless body cavity search violated the Fourth Amendment.
In September 2006, Mark Tyrell Fowlkes was arrested on federal drug charges in Long Beach, California. During a strip search at the jail, Sergeant Michael Gibbs “delivered a drive stun tase to the center of [Fowlkes’] back.” Gibbs later testified that he did so because he believed Fowlkes was “‘forcing or moving an object or further secreting an object’ inside his rectum to destroy evidence.”
When Fowlkes was handcuffed and bent over, officers saw “what appeared to be a plastic bag partially protruding” from his rectum. They could not see what, if anything, the bag contained. Nor could they tell how large the bag was or how far it extended inside his body.
Fowlkes was unable to destroy or further secrete the bag while restrained. Nevertheless, officers did not obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location or allow him to pass the plastic bag and its contents naturally.
Instead, Gibbs donned gloves and forcibly “pulled the object from Fowlkes’s rectum without the assistance of anesthesia, lubricant, or medical dilation.” Officer Jeffrey Harris called the extraction a “difficult, abrasive procedure,” testifying that as the bag was pulled out it grew “from a dime size to a nickel size to a quarter size to somewhat near a golf ball size.” It was covered in blood and feces.
The bag’s contents proved to be cocaine and Fowlkes was indicted on drug possession and distribution charges. The district court denied his motion to suppress and a jury found him guilty.
On appeal, the Ninth Circuit first held that the warrantless search violated the Fourth Amendment because it was not justified by “exigent circumstances” or the “special needs” exception. In reaching that conclusion, the Court distinguished the “physical search” at issue from the “visual searches” that were upheld in Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc) [PLN, July 2011, p.16] and Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510 (2012).
“Cementing the Fourth Amendment violation ... is the unreasonableness of the manner in which the search was executed,” the appellate court added. “The officers violated the jail’s own written policy for body cavity searches by failing to conduct the search ‘under sanitary conditions’ and by not using” medical personnel. “There is no evidence that any of the officers had medical or any other relevant training on how to safely remove suspicious objects from an arrestee’s rectum or how to evaluate whether such removal could cause serious physical harm or death.”
Consequently, “[b]ecause we conclude that the evidence obtained from this brutal and physically invasive search should have been suppressed, we vacate Fowlkes’s conviction in part, vacate his sentence, and remand to the district court,” the Ninth Circuit wrote. See: United States v. Fowlkes, 770 F.3d 748 (9th Cir. 2014).
“This case dealt with an actual extraction, so it was definitely unreasonable, if not barbaric,” said Fowlkes’ attorney, Thomas Sleisenger. “The problem is that they could see some object, but they didn’t know how large the object was. Turned out the object was a lot larger than they thought.” A spokesman for the U.S. Attorney’s Office declined to comment.
Additional source: www.nationallawjournal.com
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United States v. Fowlkes
|770 F.3d 748 (9th Cir. 2014)
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Florence v. Board of Chosen Freeholders
|132 S.Ct. 1510 (2012)
Bull v. City and County of San Francisco
|595 F.3d 964 (9th Cir. 2010)
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|Appeals Court Edition