Following the three factor test of Winston v. Lee, the search warrant for defendant’s rectum performed at a hospital by a doctor by anoscopy was reasonable. It was an affront to dignity, but it was a reasonable and safe procedure. United States v. Gray, 669 F.3d 556 (5th Cir. 2012), judgment vacated on other grounds by Gray v. United States, 568 U.S. 802, 133 S. Ct. 151 (2012) is distinguished because there less intrusive measures were available and not used. State v. Brown, 2018 Minn. App. LEXIS 266 (May 29, 2018):
Brown contends that application of the Winston factors requires the same conclusion with respect to the anoscopy performed here.
1. The extent to which the procedure may threaten safety or health.
Brown maintains that the risks of anal bleeding and tearing make this procedure unreasonable. Dr. Nystrom testified that “there is a possibility of bleeding because it stretches the anus like a large bowel movement would.” Both doctors testified that anoscopy poses minimal health risks and is not a complicated procedure.
In its order denying Brown’s suppression motion, the district court concluded that the procedure falls in the “slight/mild risk category,” and therefore this factor favors the state. In doing so, the district court reasoned that other courts have held that similar procedures do not pose a significant risk. See Eckert v. City of Deming, CIV 13-0727 JB/WPL, 2015 WL 10383783, at *41 (D. N.M. Oct. 31, 2015) (collecting cases). The district court also noted that, unlike in Winston, the risks here were not unknown.
Based on the record before us, we conclude that the risks of anoscopy fall closer to the blood draw in Schmerber than the proposed chest surgery in Winston. Both doctors testified that anoscopy poses minimal health risks, and that it is not a complicated procedure. The procedure is performed regularly at HCMC. And as the district court observed, there is no conflicting testimony here as to risks. Cf. Winston, 470 U.S. at 764, 105 S. Ct. at 1618 (determining that conflicting testimony on risks militated against finding surgery reasonable). Thus, the first Winston factor favors a conclusion that the procedure here was reasonable.
2. Intrusion upon dignitary interests in personal privacy and bodily integrity.
Brown argues that nothing could be more intrusive upon a person’s dignitary and privacy interests than forced sedation and the probing of his rectum. The district court concluded that this factor favored Brown, reasoning that the anoscopy procedure was “an extreme violation of Brown’s dignitary interests in personal privacy and bodily integrity” because he was “restrained, sedated, and forced to undergo the anoscopy.” The state concedes that, on balance, this factor favors Brown. We agree. The district court properly determined that “the procedure was demeaning, humiliating, and an infringement on Brown’s dignitary interests.” This factor favors a conclusion that the procedure was unreasonable.
3. Community’s interest in fairly and accurately determining guilt or innocence.
Brown argues that, although the cocaine may have been the state’s best evidence of guilt, this need does not override the first two Winston factors. He acknowledges that the third factor is “of great importance” and that “courts should take into account the difficulty of proving the charge without the evidence.”
The district court determined that the third Winston factor favors a finding of reasonableness. We agree. The district court found that the community has a strong interest in prosecuting those who sell illegal drugs on street corners. Brown does not dispute this finding. Significantly, unlike in Winston, the evidence sought here was the state’s only direct evidence of crack-cocaine possession. And the district court took into account that the anoscopy was performed under the authority of a valid search warrant.
. . .
Brown argues that the presence of a search warrant is irrelevant to our Winston analysis. We disagree. Although a search warrant or applicable exception is a separate, threshold requirement, the existence of a valid search warrant also informs our analysis of reasonableness under the circumstances here. Both the United States Supreme Court and the Minnesota Supreme Court have advised that searches involving intruding into someone’s body for evidence should be conducted under a warrant. In Winston, for example, the Supreme Court repeated what it had said in Schmerber:
“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. . . . The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.”
Winston, 470 U.S. at 761, 105 S. Ct. at 1617 (quoting Schmerber, 384 U.S. at 770, 86 S. Ct. at 1835). The Minnesota Supreme Court has expressed the same requirement for body searches, stating that “[a]bsent unusual circumstances, an intrusion upon the body of a citizen should properly be made only by authority of a warrant issued by a magistrate, for it is a search and seizure within the limitations of the Fourth Amendment.” State v.Campbell, 281 Minn. 1, 10, 161 N.W.2d 47, 54 (1968).
. . .
After balancing the three Winston factors, we conclude that the district court properly determined, in a comprehensive and thoughtful decision, that the anoscopy procedure was reasonable under the circumstances.
