{"id":6624,"date":"2012-04-05T10:27:40","date_gmt":"2012-02-03T08:14:05","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-02-03T08:14:05","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6624","title":{"rendered":"CA5: Proctoscopic examination under sedation in search warrant for drugs in the rectum was unreasonable, but GFE validates it"},"content":{"rendered":"

Proctoscopic examination under sedation in search warrant for drugs in the rectum was unreasonable, but the good faith exception makes it valid. United States v. Gray<\/a>, 669 F.3d 556 (5th Cir. 2012):<\/p>\n

\u201cThe overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.\u201d Schmerber v. California<\/a>, 384 U.S. 757, 767 (1966). This case forces us to balance this fundamental interest in a person\u2019s bodily integrity and dignity against the significant need of law enforcement officers to unearth evidence of crime. Specifically, the Appellant Rondrick Gray was forced to undergo a proctoscopic examination under sedation pursuant to a warrant obtained on the police\u2019s belief that he was concealing crack cocaine in his rectum. Weighing the competing interests, we find that the search was unreasonable but that the evidence should not be suppressed because the police acted in good-faith reliance on a valid search warrant. Accordingly, we AFFIRM.<\/p>\n

. . .<\/p>\n

Applying the Winston<\/a> factors to the present case, the magnitude\/danger of the proctoscopy appears to be slight. Though the testimony reveals that there was some risk of respiratory depression or arrest associated with the sedatives administered and risk of anal bleeding or perforation associated with the use of the proctoscope, these risks were low in the hospital setting where the proctoscopy occurred. The risks here are obviously greater than the blood draw found permissible in Schmerber<\/a>, 384 U.S. at 771 (allowing a blood draw to determine the blood alcohol level of a drunk driver), but they do not seem to rise to the level of the risks associated with the surgery found unreasonable in Winston<\/a>, 470 U.S. 763-65.<\/p>\n

On the extent of the intrusion factor, Gray argues that \u201c[s]hy of full-on exploratory surgery [like in Winston<\/a>], it is hard to imagine a more demeaning and intrusive invasion of Gray\u2019s interests\u201d in personal privacy and bodily integrity. Br. of Defendant\u2014Appellant at 29. This is an understatement: the proctoscopy here was a greater affront to Gray\u2019s dignitary interest than full-on exploratory surgery. Though sedated, Gray was conscious throughout the entire procedure. Moreover, the procedure targeted an area of the body that is highly personal and private. In our society, the thought of medical technicians, under the direction of police officers, involuntarily sedating and anally probing a conscious person is jarring. Such a procedure is degrading to the person being probed\u2014both from his perspective and society\u2019s. This type of search resembles the physical vaginal cavity search that the First Circuit encountered in Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991). … [\u00b6] In taking both of the individual interests into account, the magnitude of the intrusion from the proctoscopy was minimal, but the extent of intrusion from the proctoscopy was great.<\/p>\n

Society\u2019s interest here, like in Winston<\/a>, is \u201cof great importance.\u201d Winston<\/a>, 470 U.S. at 762. The interest is even greater than in Winston<\/a>, where there was other evidence of guilt, id., because the crack cocaine that Hethcock believed Gray was concealing in his anal cavity was the only direct evidence of Gray\u2019s possession. Unlike in Schmerber<\/a> or Winston<\/a>, however, there were other available avenues for obtaining this evidence, such as a cathartic or an enema. Such alternatives militate against society\u2019s great interest \u201cin conducting the procedure\u201d used in this case\u2014proctoscopy. Id. at 760 (emphasis added).<\/p>\n

When balancing these interests and comparing them to our benchmarks of the permissible Schmerber blood draw and the impermissible Winston<\/a> surgery, the medical danger here is slightly greater than in the former but nowhere near the danger of the latter. As to the dignitary interest, this is one of the greatest dignitary intrusions that could flow from a medical procedure?involuntary sedation for an anal probe where the person remains conscious. The last consideration is society\u2019s interests, which are not as great as in Schmerber<\/a> but greater than in Winston<\/a>. On balance, we find the proctoscopic search unreasonable due to the exceeding affront to Gray\u2019s dignitary interest and society\u2019s diminished interest in that specific procedure in light of other less invasive means.<\/p><\/blockquote>\n

Apparently the good faith exception always trumps reasonableness? This is an issue SCOTUS should take as a potential conflict with Winston<\/a>, but I have no confidence in how it will come out. I personally think the court downplayed the comparison to Winston<\/a> too much.<\/p>\n","protected":false},"excerpt":{"rendered":"

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