E.D.Tenn.: Forced medical removal of 10g crack from rectum was reasonable where defendant was medically paralyzed for the procedure

Defendant was arrested with probable cause and jailed. During the strip search, jailers saw string protruding from his rectum. They sought consent to remove it, which he refused. A forced digital rectal exam (“DRE”) didn’t work because defendant’s tight muscles did not permit entry. He was taken to a hospital for an examination and given drugs to make his sphincter relax. When that did not work, he was given a drug to paralyze him for 30 minutes. “Balancing these three factors [from Winston v. Lee], the Court finds that the DRE was a reasonable procedure under the circumstances and was reasonably employed, particularly given the risk to the Defendant from the drugs in his rectum for which there was a clear indication were there [Schmerber v. California] and the Defendant’s actions hindering their removal. Accordingly, the Court finds that the search in question did not violate the Defendant’s Fourth Amendment rights.” He had 10.2g of crack in him. United States v. Booker, 2010 U.S. Dist. LEXIS 124839 (E.D. Tenn. September 29, 2010), adopted United States v. Booker, 2010 U.S. Dist. LEXIS 124874 (E.D. Tenn. November 24, 2010):

After waiting “ten to fifteen minutes for the medicine to take full effect,” LaPaglia again attempted to perform a DRE. [Tr. 131]. This time, LaPaglia was able to feel a foreign object inside the Defendant’s rectum with the tip of his finger. [Tr. 131]. However, the Defendant was still non-cooperative, and LaPaglia was unable to complete the DRE and remove the foreign object. LaPaglia told the Defendant that his continued failure to cooperate required the administration of a combination of medications that would temporarily paralyze every muscle in his body. LaPaglia also told the Defendant that he would be rendered unconscious and intubated to allow for a complete DRE.

LaPaglia intravenously administered 20 milligrams of etomidate, a sedative, and 125 milligrams of succinylcholine, a paralytic agent, to the Defendant. [Tr. 142]; [Tr. 155 (Jones testified that intravenous therapy was established at 3:35 p.m.)]; [Exhibit 7]. At approximately 4:12 p.m., the Defendant was intubated. [Tr. 62, 156]; [Exhibit 7]. Once the Defendant was unconscious and completely paralyzed, LaPaglia performed a DRE and removed a rock of crack cocaine weighing 10.2 grams from the Defendant’s rectum. [Tr. 27]. Shortly after the rock was removed, Steakley placed it in an evidence bag and left the emergency room. [Tr. 27, 144-45]. The Defendant was intubated for approximately one hour total, during which time he was unconscious for 20 to 30 minutes and completely paralyzed for 7 to 8 minutes. [Tr. 143, 156]. At approximately 6:40 p.m., the Defendant’s intravenous therapy was discontinued. [Tr. 155]; [Exhibit 7]. The Defendant was subsequently discharged from the emergency room into Shelton’s custody. See [Tr. 125 (Shelton testified that he was told he could leave the hospital with the Defendant at 6:25 p.m., and that he arrived with the Defendant back at the Detention Facility at 6:59 p.m.); [Exhibit 7] (showing the Defendant’s departure time as 6:42 p.m.)].

The search was valid under Winston v. Lee because of the risk associated with any inmate in jail having drugs hidden in his body because of the potential for overdose.

In the event that the District Court finds that Dr. LaPaglia was acting at the officers’ direction and was, therefore, a government agent, the Court will briefly conduct an alternative analysis of whether the DRE was reasonable under the circumstances and was conducted in a reasonable manner. In Schmerber, the Court balanced three factors to determine whether the search was reasonable: “(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. Husband, 312 F.3d 247, 253 (7th Cir. 2002) (quoting Winston v. Lee, 470 U.S. 753, 761-62 (1985) (analyzing the reasonableness of surgery to remove a bullet from the defendant’s chest under the Schmerber factors)).

Also, the doctor helpfully testified that he was acting on his own accord as a medical professional concerned about defendant overdosing, and not at the direction of the officers. The court also thus held that the doctor was a private actor.

Dr. LaPaglia further explained that he conducted a DRE of the Defendant because he was concerned that the Defendant was in danger—not because he intended to assist the police with their investigation. See [Tr. 148 (“The background information that I was given by the officers was that they suspected [the Defendant] had drugs in his rectum. That gave me suspicion enough to think that he was in danger.”)]; [Tr. 143 (stating that after the second attempt at performing a DRE, “I was very certain that [the Defendant] had an object [inside of him] and whether it’s a drug or an object, it needs to come out of the rectum.”)]. Based upon this testimony, the Court concludes that the DRE in this case was not a search within the scope of the Fourth Amendment’s protections because it was conducted by a private actor.