TX7: 20 sec. Tasering in hospital to get handcuffed defendant to remove drugs from mouth was unreasonable search and seizure

Twenty seconds of tasering defendant in the hospital to get him to spit out drugs in his mouth was an unreasonable and excessive seizure. It was so bad that the court cites Rochin, the stomach pumping case. Hereford v. State, 302 S.W.3d 903 (Tex. App.—Amarillo 2009):

One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument’s log. At the time, appellant was handcuffed and being held down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his mouth. When appellant did not comply after Arp’s first foray, the tasings resumed. No one viewed appellant as a threat to others during the episode. Nor had he attacked anyone. Arp simply wanted appellant to comply. When asked if “repeated taser use [was] acceptable” and whether “20 seconds worth of tasering” was “okay,” he policeman answered “yes” to both.

Arp was not the first to tase appellant, though. Officer Williams had already done so twice at a locale miles away from the hospital. He too wanted appellant to remove the items, which Williams thought to be drugs, from his mouth, and met with no success. So, Williams decided to take appellant to the hospital in effort to gain medical assistance.

In continuing where Williams had failed, Arp said he administered all but one of the electrical shocks to Hereford’s inner thigh region; others saw them being administered to appellant’s “groin area.”

. . .

One need only harken back to first year constitutional and criminal procedure class to recall our United States Supreme Court stating: “[i]t has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 210, 96 L.Ed.183 (1952). In Rochin, the police transported a suspect, who they thought swallowed drugs, to the hospital to undergo the non-consensual pumping of his stomach. This was done after their attempts to physically force Rochin to open his mouth met with no success. Id. 342 U.S. at 166, 72 S.Ct. at 206. According to the Court, recognizing the use of “brutal conduct” as a legitimate means of securing evidence is tantamount to “afford[ing] brutality the cloak of law.” Id. 342 U.S. at 173, 72 S.Ct. at 210. And, most importantly, it opted against that by viewing the police conduct as a denial of due process. See Brown v. State of Mississippi, 297 U.S. 278, 287, 56 S.Ct. 461, 465-66, 80 L.Ed. 682 (1936) (holding that whipping or beating of a suspect to gain his confession violated due process).