Plaintiff was subjected to a forced rectal search for drugs at a hospital. Police officers allegedly falsified the report to the hospital about defendant having a seizure to get the search done there when they had already concluded that plaintiff was faking a seizure. The search could be found to violate the Fourth Amendment because of the invasion of bodily dignity and the officers do not get qualified immunity. George v. Edholm, 2014 U.S. App. LEXIS 9798 (9th Cir. May 28, 2014):
The search here was at least as invasive as searches we and other courts have characterized as unwarranted intrusions on dignitary interests. In United States v. Cameron, a suspect underwent a digital rectal exam and two enemas before being forced to drink a liquid laxative. 538 F.2d at 258. In an opinion by then-Judge Kennedy, we held that search unreasonable. Id. at 258-60. In Ellis v. City of San Diego, 176 F.3d 1183 (9th Cir. 1999), we held that the plaintiff had alleged a clear Fourth Amendment violation when he claimed that doctors sedated him, took blood samples, and inserted a catheter into his penis. Id. at 1186, 1191-92; see also Booker, 728 F.3d at 547 (sedation, intubation, and anal probing are “an affront to personal dignity … categorically greater” than the surgery in Winston); Gray, 669 F.3d at 564 (proctoscopy is “a greater affront to … dignitary interest[s] than full-on exploratory surgery”); United States v. Husband, 226 F.3d 626, 632 (7th Cir. 2000) (sedation and reaching into suspect’s mouth “constitute a serious invasion of … personal privacy and liberty interests”); Rodriques v. Furtado, 950 F.2d 805, 811 (1st Cir. 1991) (vaginal inspection is “a drastic and total intrusion of … personal privacy and security”); Kennedy v. L.A. Police Dep’t, 901 F.2d 702, 711 (9th Cir. 1989) (visual inspections of body cavities are “dehumanizing and humiliating”), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991) (per curiam); Tribble, 860 F.2d at 325 (digital rectal exam is “one of the most intrusive methods of detecting contraband”); Yanez v. Romero, 619 F.2d 851, 855 (10th Cir. 1980) (catheterization is a “gross personal indignity”); Huguez v. United States, 406 F.2d 366, 379 (9th Cir. 1968) (digital rectal exam was “a brutal invasion of privacy”); State v. Payano-Roman, 2006 WI 47, 290 Wis. 2d 380, 714 N.W.2d 548, 560 (Wis. 2006) (being forced to drink a laxative is a “significant intrusion”).
Intrusive body searches are permissible when they are reasonably necessary to respond to an immediate medical emergency. See Husband, 226 F.3d at 635; People v. Bracamonte, 15 Cal. 3d 394, 124 Cal. Rptr. 528, 540 P.2d 624, 629 (Cal. 1975). Officers Freeman and Johnson contend that such an emergency existed because of the risk that the baggie of cocaine base in George’s rectum would rupture. They contend that the procedures performed by Dr. Edholm were necessary to save George’s life. But “since the suspect himself would have been responsible for any such [medical] risk, only a showing of the greatest imminent harm would justify [*32] intrusive action for the purpose of removal of the drug.” Cameron, 538 F.2d at 259 n.8.Freeman and Johnson rely heavily on Dr. Edholm’s testimony that the procedures were “life-saving treatment” necessary to address the risk that the baggie of cocaine base in George’s rectum would rupture. But Edholm’s testimony would be of limited use if a jury concluded that Freeman and Johnson were the source of false information leading Edholm to believe that a life-threatening emergency existed. Edholm never testified that he believed the baggie had actually ruptured. He testified only that it could rupture: “If the golf ball size amount of cocaine in his rectum had ruptured, he likely would have died that evening.” As to “drug-packing” in general, Edholm testified that “if you don’t get the drugs out, then they can rupture.” Edholm did not testify that he had any reason to think the baggie in George’s rectum was more likely to rupture than in any other drug-packing case.
Viewing the evidence in the light most favorable to George, a reasonable jury could conclude that the only actual risk to George’s health was the possibility that the baggie of cocaine base could rupture. That sort of speculative, generalized risk cannot on its own justify nonconsensual procedures as invasive as those performed by Dr. Edholm. Every person who hides a baggie of drugs in his rectum faces a risk that the baggie will rupture. But the mere fact “that the suspect is concealing contraband does not authorize government officials to resort to any and all means at their disposal to retrieve it.” Cameron, 538 F.2d at 258; see Winston, 470 U.S. at 767. Otherwise, highly invasive searches of drug-packing suspects’ rectums would never violate the Fourth Amendment. That clearly is not the law. See Rochin, 342 U.S. at 172; Cameron, 538 F.2d at 256-59; Bracamonte, 540 P.2d at 628-31.
The record could support a jury conclusion that the search was not reasonably necessary to address the risk of rupture of the baggie in George’s rectum. Officers Freeman and Johnson both testified they had seen doctors allow suspects with drugs in their rectums to pass the drugs naturally, using only laxatives, including one suspect who had a “very high” heart rate and, as a result, was placed in intensive care. A rational jury could thus find that the potential risk of rupture could be adequately addressed by keeping George in the hospital and monitoring his bowel movements. See United States v. Aman, 624 F.2d 911, 913 (9th Cir. 1980) (allowing police to hold drug-packing suspect “where medical personnel and facilities were immediately available” in case the package ruptured); Cameron, 538 F.2d at 258 & n.7.
Third, we weigh the intrusiveness of the search against “the community’s interest in fairly and accurately determining guilt or innocence.” Winston, 470 U.S. at 762. The community has a strong interest in prosecuting those who are selling cocaine base, and George likely could not have been prosecuted without the evidence he had hidden in his rectum. But a jury could reasonably conclude that the baggie of cocaine base could have been recovered through far less intrusive means. If George’s life was not in immediate jeopardy, doctors could have kept him in the hospital, administered laxatives, and monitored his bowel movements. See Cameron, 538 F.2d at 258. Further, if that course of treatment had been followed, the officers then would have had time to seek a search warrant. See United States v. Erwin, 625 F.2d 838, 841 (9th Cir. 1980). Under these circumstances, the intrusiveness of the search far exceeded what was necessary to serve the community’s interest in recovering evidence of George’s crime.
We therefore hold, based on the Winston factors, that a jury could conclude the procedures performed by Dr. Edholm violated the Fourth Amendment.
