CA9: “brutal and physically invasive” warrantless rectal search in jail should have been suppressed

In a “brutal and physically invasive” warrantless rectal search in jail, the motion to suppress should have been granted. He was handcuffed, Tased, and surrounded by five officers, and exigent circumstances were lacking. United States v. Fowlkes, 770 F.3d 748 (9th Cir. August 25, 2014):

The Fourth Amendment requires police officers to obtain a warrant to search for and seize drugs within a person’s body. 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.”)). A warrantless search of the human body implicates an individual’s “most personal and deep-rooted expectations of privacy,” Winston v. Lee, 470 U.S. 753, 760 (1985), and is reasonable only if it falls within one of the Fourth Amendment’s recognized exceptions, Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). The government bears the burden of demonstrating that an exception to the warrant requirement exists in any given case. See United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985) (internal citations omitted) (“The government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.”).

Exigent circumstances did not justify the warrantless search of Fowlkes’ rectum. The exception for exigent circumstances “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King, 131 S. Ct. 1849, 1856 (2011)). The government is correct that a warrantless search may be conducted if an officer reasonably believes that evidence will be destroyed if he does not act quickly, so long as the search is conducted in a reasonable manner. See, e.g., Schmerber v. California, 384 U.S. 757, 770-71 (1966). However, it is well-settled that the exception applies only where “there is [a] compelling need for official action and no time to secure a warrant.” McNeely, 133 S. Ct. at 1559 (emphasis added) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)).

The record is devoid of any evidence from which the officers might reasonably have inferred that they were confronted with an exigent circumstance—the possible destruction of evidence—that left them with “no time to secure a warrant.” Id. When he was searched, Fowlkes was handcuffed, tased, and surrounded by five police officers. He was under arrest and in the custody of the LBPD. The record contains no evidence that Fowlkes could have destroyed evidence or that a medical emergency existed. See United States v. Cameron, 538 F.2d 254, 259 & n.8 (9th Cir. 1976) (“There were no facts on the record indicating that failure to remove the heroin would constitute a danger to the suspect. … [O]nly a showing of the greatest imminent harm would justify intrusive action for the purpose of removal of the drug.”); see also Johnson v. United States, 333 U.S. 10, 15 (1948) (“No suspect was fleeing or likely to take flight.”). Under these circumstances, there was ample time for the officers to secure a warrant, and the government’s claim of exigency fails.

Having found the exigency argument unavailing, we turn to the question of whether the “special needs” exception justifies this class of warrantless searches. Contrary to the dissent’s contention, it does not. Under the special needs exception, “suspicionless searches may be upheld if they are conducted for important non-law enforcement purposes in contexts where adherence to the warrant-and-probable cause requirement would be impracticable.” Friedman v. Boucher, 580 F.3d 847, 853 (9th Cir. 2009) (emphasis omitted) (citation ommitted). To meet its burden of proving that the special needs exception justifies this search, the government must demonstrate that its interests were sufficient to outweigh the constitutional rights of the arrestee. See Bull v. City and Cnty. of S.F., 595 F.3d 964, 975 (9th Cir. 2010) (en banc). We must balance “the need for the particular search against the invasion of personal rights that the search entails” by “consider[ing] the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979).

The government has a strong interest in preventing contraband from entering its prisons and jails, but to satisfy the special needs exception, the government must also demonstrate that “adherence to the warrant-and-probable cause requirement would be impracticable.” Friedman, 580 F.3d at 853 (internal quotation marks ommitted). The government does not meet this burden.

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