CA6: Body cavity search warrant that involved only an x-ray and laxatives and time was reasonable; def, confronted with explanation of the process, produced the drugs on his own

Officers obtained a search warrant for a body cavity search. He was taken to the hospital and was told that he would be given an x-ray and a laxative and he’d stay there until the drugs suspected of being in his intestines would pass naturally. Faced with that, he gave it up and produced it. The search warrant was reasonable. United States v. Banks, 2017 U.S. App. LEXIS 5643 (6th Cir. March 30, 2017):

The officers then asked a judge for a warrant to conduct a “cavity search of Banks. (Aff. For Search Warrant, R. 27-1, PageID 68.) The judge signed a warrant, which did not describe the exact manner for the police to conduct the search. The warrant stated that the “person, place or thing to be searched is the person of Tommy Banks, specifically buttocks cavity, where narcotics are suspected to be hidden.” (Search Warrant, R. 27-1, PageID 69.) Brouwer testified that after police received the warrant, the plan was to get Banks to release the drugs voluntarily, but, when he refused, the officers transported him to the hospital. The officers explained the search warrant to the doctor who advised that they have Banks ingest a laxative and take an x ray. Brouwer then explained the procedure to Banks.

When hospital employees brought in a mobile toilet and large drink container, Banks told Brouwer he wanted to see the doctor. Brouwer asked Detective Daniel DeWitt to get the nurse and doctor and then returned to Banks’s room. At this point, Banks walked “over on his own to the portable toilet, sat down on it, and after a few seconds, he released the bag of drugs.” (Suppression Hr’g Tr., R. 172, PageID 747.) The bag contained about eight [*6] grams of crack cocaine and two grams of heroin.

Brouwer testified that even if Banks had not voluntarily released the drugs at that time the officers would have continued to wait as long as possible with the hope that the drugs would be released naturally.

. . .

Banks argues that the search was not constitutionally reasonable. This court determines whether a search is constitutionally reasonable by weighing three factors: “(1) the extent to which the procedure may threaten the safety or health of the individual, (2) the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity, and (3) the community’s interest in fairly and accurately determining guilt or innocence.” United States v. Booker, 728 F.3d 535, 546 (6th Cir. 2013) (internal quotation marks omitted). In Booker, the court found that a warrantless search of a detainee suspected of hiding cocaine on his person was unconstitutional where the detainee was forced to undergo a digital rectal exam that involved partially paralyzing and intubating him. Id. at 539-40.

In this case, there is no evidence that the x-ray or the laxatives would have threatened Banks’s safety or health. While the procedure would have been an intrusion on Banks’s dignitary interests, the officers had a warrant to search that area of Banks’s body, sought guidance from medical professionals on how to safely execute that warrant, and chose a method far less intrusive than the method in Booker. Finally, the third factor weighs in favor of the proposed procedure in this case because the officers chose a relatively non-intrusive method to obtain the drugs and had limited other evidence to demonstrate Banks’s guilt of drug trafficking. Cf. id. at 547 (“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.”). In fact, the officers here chose the exact procedures (a warrant, x-ray, and laxative) recommended by Judge Moore as alternatives to the unreasonable procedures used in Booker. Booker v. Paglia, 617 F. App’x 520, 532 (6th Cir. 2015) (Moore, J., dissenting). Overall, the balance of the factors weighs toward the proposed procedures being constitutionally reasonable.