ID: Case law on forced catheterization for a urine sample not clear, so officer gets qualified immunity

Plaintiff filed a sparse complaint that his forced catheterization violated the Fourth Amendment. No case like this holds that forced catheterization for a urine sample is unreasonable or reasonable. Thus, under the Supreme Court’s mandate that constitutional issues not be decided unless necessary, the court holds that the officer has qualified immunity in the suit. Miller v. Idaho State Patrol, 150 Idaho 856, 252 P.3d 1274 (2011):*

Even though courts nationwide have not had many opportunities to address forced catheterizations, there are some areas where cases appear to be coalescing into universal rules. For instance, it is objectively well-established that a suspicionless catheterization, like any suspicionless bodily search, would be unconstitutional. Ellis v. City of San Diego, 176 F.3d 1183, 1192 (9th Cir. 1999); Ohio v. Funk, 896 N.E.2d 203, 207-08 (Ohio Ct. App. 2008); see also Hammer v. Gross, 932 F.2d 842, 844 (9th Cir. 1991) (stating that a warrantless blood draw requires probable cause). If the police have probable cause to search for something that is not likely to dissipate from the body, then a warrantless search for bodily fluids would be unconstitutional. See Barlow v. Ground, 943 F.2d 1132, 1138 (9th Cir. 1991) (discussing blood draws); Graves v. Beto, 424 F.2d 524, 525 (5th Cir. 1970) (similar). On the other hand, a forced catheterization performed on arrestees solely for medical screening or treatment, and not for investigatory reasons, is constitutional. Sullivan v. Bornemann, 384 F.3d 372, 377 (2004) (addressing catheterizations done by hospital personnel for medical clearance before accepting a suspect into county jail); Meyer v. Woodward, 617 F. Supp. 2d 554, 565 (E.D. Mich. 2008); Tinius v. Carroll Cnty. Sheriff Dep’t, 321 F. Supp. 2d 1064, 1075-76 (N.D. Iowa 2004) (upholding a catheterization performed by hospital personnel on a person detained under the police community-caretaking function); see also United States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990) (stating that a blood draw performed by medical personnel for purely medical reasons was permissible).

The clarity ends, however, once the Court attempts to determine whether it is reasonable for police to catheterize someone to search for dissipating evidence of a crime without a warrant. This question is at its thorniest where, as here, the police presumably could just as easily have performed a relatively painless blood draw rather than use a catheter to extract urine.