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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)