Friday, August 30, 2013

Can Police Paralyze Me and Probe my Ass for Drugs? 6th Circuit Says No

I'm sure many of you have asked this same question. Up until Monday, the answer, at least in the Sixth Circuit, was "yeah." But in what can only described a victory for those who oppose non-consensual anal penetration, the Sixth Circuit Court of Appeals has vacated the conviction of a man who was involuntarily paralyzed, intubated, attached to a breathing machine and anally probed for drugs. The case is United State v. Felix Booker. The fact that it ever went to trial demonstrates just how egregious police conduct must be before it will violate constitutional protections against unreasonable search and seizure.

U.S. v. Felix Booker: Facts of the Case

In August, 2010 Oak Ridge Tennessee police stopped a car containing Felix Booker and his brother William who was driving. Officers smelled marijuana, the occupants denied having illegal drugs and gave police permission to search. The search discovered .06 grams of marijuana. Possession of that amount is a misdemeanor under Tennessee law and, only a citation, not arrest, is authorized for such offenses. Still, officers arrested Felix for felony marijuana possession even though they never found the 14 grams needed to support the charge.

After his arrest, officers observed Booker fidgeting around his buttocks and, during a strip search, one officer thought he saw something protruding from his anus. It was reasonable then for officers to suspect that Booker was concealing something, what was unreasonable is what they did next: They transported him to a medical facility where they met Dr. LaPaglia. It turns out that this doctor had assisted these police with involuntary rectal examinations in the past. With the officers standing by, LaPaglia went to work once again. As the Sixth Circuit puts it:
LaPaglia first performed the rectal examination on Booker without medication. But Booker contracted his anal and rectal muscles while LaPaglia was attempting to examine him, preventing LaPaglia from inserting a finger in Booker’s anus. As LaPaglia said, “If an individual does not want you to enter their rectum, you are not going to.”.... LaPaglia ordered a nurse to inject muscle relaxants into Booker’s left buttock. On the second attempt, Booker remained uncooperative and LaPaglia could not complete the examination, but he could feel a foreign object inside Booker’s rectum, convincing LaPaglia that completion of the rectal examination was imperative. Finally, LaPaglia directed an emergency room nurse, Tammy Jones, to administer a sedative and a paralytic agent to Booker intravenously, and had him intubated to control his breathing. At 4:12 p.m., Booker was intubated. He remained intubated for about an hour, unconscious for twenty to thirty minutes, and paralyzed for seven to eight minutes. While Booker was paralyzed, LaPaglia removed a rock of crack cocaine, greater than five grams, from Booker’s rectum. LaPaglia then turned over the crack rock to Officer Steakley, who took it for evidence.

Sixth Circuit Rejects the District Court's Ruling

Booker was charged with possession with intent to distribute more than 5 grams of crack cocaine. He moved to Suppress the evidence but the District Court Judge denied the motion. That Judge bought the prosecution argument that removing the drugs was not a search, but was a medical procedure required to protect Booker's safety. The reasoning was that, if there was something hidden in there, and it did contain drugs, and the package ruptured, there was a possibility that Booker's health could be endangered. The prosecution also argued that the Doctor was not a state actor and so proceeds of his fingerbang proceedure were not subject to exclusion under the fourth amendment. With suppression denied, Booker was convicted.

The Sixth Circuit disagreed:
Even though the doctor may have acted for entirely medical reasons, the unconsented procedure while Booker was under the control of the police officers must, in the circumstances of this case, be attributed to the state for Fourth Amendment purposes...When police officers bring a suspect in custody to a purportedly independent actor, and stand by without interfering while the actor unlawfully batters the subject in a way that the police clearly could not, it can hardly be argued that resulting evidence is admissible.
Even if the acts of the doctor are imputed to the state, the evidence doesn't need to be excluded if the actions were reasonable under the circumstances. The court considered previous cases where involuntary stomach pumping, or forced surgery were deemed unconstitutional, and found that this conduct was just as bad:
The unconsented procedure, moreover, shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process...Supreme Court precedent thus shows that the unconsented paralysis, intubation, and rectal examination amounted to an unreasonable search, which violated Booker’s Fourth Amendment rights. 

So the Rectum is a Perfect Hiding Place?

Well, not really. There are lots of ways to find out what's in there, it's just that the police here did it super wrong. As the Sixth Circuit opinion notes, other agencies have procedures for this sort of thing:
For example, the established policy of the United States Customs and Border Protection is first to attempt an x-ray to confirm the presence of contraband. If further medical examination is necessary, officers consider whether to engage in a monitored bowel movement, and only engage in an involuntary body cavity search after obtaining a court order.
In Maine, as in other jurisdictions, body cavity drug smuggling is common. Here, the police prefer to let nature take it's course and put such prisoners in a "dry cell" where they can't use a sink or toilet to dispose of drugs; that stuff is coming out one way or another. These cops did not have the decency to wait, the sense to do an x-ray, or the brains to get a warrant. In the words of the Sixth Circuit Judge John Rogers:
When less intrusive means to investigate were available but not used and when the prosecution has other ways to establish guilt, this diminishes the weight that should be given to using an involuntary and invasive medical procedure to further society’s interest in fairly and accurately determining guilt or innocence.