On petition for rehearing from United States v. Fowlkes, 770 F.3d 748 (9th Cir. August 25, 2014) (prior post here), the panel concludes (2-1) that drug evidence obtained from a forced jail rectal search without a warrant that was painful and bloody violated Schmerber: “[W]e conclude that the evidence obtained from this brutal and physically invasive seizure should have been suppressed.?” United States v. Fowlkes, 2015 U.S. App. LEXIS 17097 (9th Cir. September 28, 2015):
Having properly framed the officers’ conduct as a warrantless, physically invasive seizure of actual (not merely suspected) contraband, we must determine whether that conduct was unreasonable under the Fourth Amendment. We conclude that it was.
In reaching this conclusion, we need not and do not determine whether a warrant is required to seize evidence discovered during a visual strip search from an inmate’s body because the officers’ conduct here was unreasonable for other reasons. As the Supreme Court recently reiterated, “[e]ven if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.” Maryland v. King, 133 S. Ct. 1958, 1970, 186 L. Ed. 2d 1 (2013); see also Bull, 595 F.3d at 967 n.2 (“There is no doubt … that ‘on occasion a security guard may conduct the search in an abusive fashion, and [s]uch an abuse cannot be condoned.'” (quoting Bell v. Wolfish, 441 U.S. 520, 560, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979))). We have applied the same principle in analyzing the constitutionality of a seizure in a nearly identical context involving extraction of evidence from a suspect’s rectum. See United States v. Cameron, 538 F.2d 254, 258 (9th Cir. 1976) (“[A] clear indication that the suspect is concealing contraband does not authorize government officials to resort to any and all means at their disposal to retrieve it.”); see also United States v. Edwards, 666 F.3d 877, 884 (4th Cir. 2011) (“The manner in which contraband is removed from a suspect during a sexually intrusive search, no less than the manner in which the contraband initially is discovered, must be considered in determining under the Bell analysis whether the search was reasonable.”).
In determining whether an individual search or seizure is reasonable, we evaluate the “totality of [the] circumstances,” Missouri v. McNeely, 133 S. Ct. 1552, 1559, 185 L. Ed. 2d 696 (2013), including “[1] the scope of the particular intrusion, [2] the manner of its conduct, and [3] the justification for initiating it.” Cameron, 538 F.2d at 258 (internal quotation marks omitted). We address these three considerations in turn.
The scope of the seizure intruded beyond the surface of Fowlkes’ body, interfering with his bodily integrity. As the Supreme Court explained in Schmerber, “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” 384 U.S. at 767. The Court has subsequently described the interest in bodily integrity as implicating the “most personal and deep-rooted expectations of privacy.” Lee, 470 U.S. at 760 (holding a compelled surgical intrusion to remove a bullet, fired by a robbery victim, from the chest of the suspect unreasonable under the Fourth Amendment); see also Cameron, 538 F.2d at 258 (“[T]he fourth amendment imposes a stricter standard on the ‘means and procedures’ of a body search than does the due process clause.”). And here, the seizure interfered with a particularly personal, private area of Fowlkes’ anatomy.
Likewise, the manner in which this seizure was conducted supports the conclusion that it was unreasonable. In making this determination, we consider a variety of factors including hygiene, medical training, emotional and physical trauma, and the availability of alternative methods for conducting the search. See Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir. 1988), abrogated on other grounds by Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); see also Thompson v. Souza, 111 F.3d 694, 700-01 (9th Cir. 1997) (considering hygiene and medical training of officers in evaluating the reasonableness of the search).
As an initial matter, the officers violated the jail’s own written policy for body cavity searches by failing to remove the evidence “under sanitary conditions” and by not using a “Physician, Nurse Practitioner, Registered Nurse, Licensed Vocational Nurse, or Emergency Medical Technician.” There is no evidence that any of the officers had medical or any other relevant training on how to safely remove suspicious objects from an arrestee’s rectum or how to evaluate whether such removal could cause serious physical harm or death. The manner of this seizure is the very sort the Supreme Court explicitly distinguished from the blood test it found “performed in a reasonable manner” in Schmerber:
We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
384 U.S. at 771-72. As the Supreme Court accurately predicted forty-years ago, tolerating such invasive conduct by non-medical personnel invites an unjustified element of personal risk—a risk that Fowlkes experienced first-hand and one that is constitutionally intolerable.
In Cameron, then-Judge Anthony M. Kennedy explained that Cameron, like Fowlkes, was in a humiliating and dangerous situation: “[T]he person accused of concealing contraband within his body is faced with the real prospect that the most intimate portions of his anatomy will be invaded and that he will suffer resulting pain or even physical harm.” 538 F.2d at 258. We also recognized that Cameron, like Fowlkes, was particularly vulnerable and totally alone: “[T]he suspect usually faces this ordeal without assistance, surrounded by persons who administer the procedure on behalf of the government and thus appear to him to have as their overriding motive the obtaining of evidence to convict, and not his personal well being.” Id.
After detailing the unique dangers, fears, and concerns faced by detainees like Fowlkes, we held that the process for removing suspected contraband from a detainee’s body, “if it is to comport with the reasonableness standard of the fourth amendment, must be conducted with regard for the subject’s privacy and be designed to minimize emotional and physical trauma.” Id. We further clarified that “[i]n a situation thus laden with the potential for fear and anxiety, a reasonable search will include, beyond the usual procedural requirements, reasonable steps to mitigate the anxiety, discomfort, and humiliation that the suspect may suffer.” Id.
Here, the LBPD officers did not take adequate steps to minimize Fowlkes’ physical trauma. They did not, for example, use lubrication or ensure that the removal was conducted under sanitary conditions; they did not seek the guidance or assistance of medical personnel; and they did not assure themselves that removing the object from Fowlkes’ rectum was safe—indeed they did not know the size, shape, or substance of the object. Further, they did nothing to mitigate his anxiety or emotional trauma. They did not, for example, offer him options for removing the contraband or secure his compliance; they did not (and could not) assure him that the removal was safe or being conducted by a trained professional; and they did not (and could not) assure him that the procedure was legal and in keeping with LBPD policy rather than an arbitrary show of force.
Far from taking steps to minimize physical harm and mitigate anxiety, as required by Cameron, the officers’ actions potentially increased the physical and emotional trauma Fowlkes suffered. Despite undisputed testimony by the officers themselves that Fowlkes posed no threat, much less an immediate threat to himself or the officers, and was not a flight risk (he was naked, bent over, and in handcuffs at the time), Sergeant Gibbs used a stun-gun taser to shock Fowlkes in an apparent effort to subdue him. Cf. Bryan v. MacPherson, 630 F.3d 805, 832 (9th Cir. 2010); Mattos v. Agarano, 661 F.3d 433, 446 (9th Cir. 2011) (en banc) (holding a finder of fact could find the use of a drive stun taser against a person posing no immediate threat unreasonable and unconstitutionally excessive). Once Fowlkes was subdued, the officers proceeded with the degrading and dangerous removal of the as yet unidentified cocaine from Fowlkes’ rectum.
These actions stand in stark contrast to the conduct found reasonable in Schmerber and are much more like the conduct found unreasonable by the Fourth Circuit in Edwards. In Schmerber, the Court explicitly considered that the blood draw in question “involves virtually no risk, trauma, or pain,” and that it “was performed in a reasonable manner” because “blood was taken by a physician in a hospital environment according to accepted medical practices.” 384 U.S. at 771. In Edwards, by contrast, the court determined that the manner in which an officer removed a plastic bag that an arrestee had tied around his penis was unreasonable. 666 F.3d at 884. The officer put on gloves and then used a knife to cut the bag off the suspect’s penis. The Fourth Circuit concluded that the manner of the removal “posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety.” Id. at 885.
As in Edwards and Cameron, the officers here should have done more to “allay the anxieties and concerns of the suspect,” and should have considered “less intrusive means of obtaining the evidence.” Cameron, 538 F.2d at 258. There are any number of alternative methods the officers could have considered employing to recover this evidence. This is not to require a least-restrictive alternative test as determinative of reasonableness, but it would have been more reasonable simply to comply with the jail’s written policy and summon medical personnel. And there was ample opportunity to do so. Before strip searching Fowlkes, Sergeant Gibbs was informed by another officer that Fowlkes had “put a baggie down his pants.” Rather than readying medical personnel or at least determining whether medical personnel were available to facilitate compliance with LBPD policy, Gibbs instead retrieved a taser from his vehicle and put on latex gloves. Then, after observing a baggie protruding from Fowlkes’ rectum, without securing judicial authorization, Fowlkes’ compliance, or medical personnel, and without assurances that doing so was safe or could be done without causing severe pain, Gibbs simply extracted the unidentified object.
Moreover, although we do not hold that a warrant was required, we must “consider that the government failed to obtain a warrant” in “evaluating the reasonableness of the manner in which the search [or seizure] was conducted.” Cameron, 538 F.2d at 258. “In addition to certifying that a search [or seizure] is reasonably justified a warrant can also assure that it is conducted in a reasonable manner.” Id. at 259. A warrant can, for example, dispel a suspect’s concerns that he is being subject to illegal, arbitrary procedures. Id. The warrant also clarifies the means of seizure the government may employ, which may in turn secure the cooperation of the suspect, reducing the risk of physical trauma attendant with removing evidence from a suspect’s body. Id. Thus, the officers’ failure to secure a warrant is yet another way in which they did not mitigate the risk of physical and emotional trauma associated with the seizure of evidence from Fowlkes’ rectum.
Just as the scope of the intrusion into Fowlkes’ privacy and the manner in which the seizure was conducted suggest that the officers acted unreasonably, the justifications—or lack thereof—for seizing the evidence in the chosen manner reinforce our conclusion that the officers acted unreasonably. See Cameron, 538 F.2d at 258. As in Cameron, where officers were all but certain the suspect had secreted drugs in his rectum, here “there was no emergency requiring instant seizure of the evidence.” Id. at 259. The government is correct that a warrantless search may be conducted if an officer reasonably believes that evidence will be destroyed if he does not act quickly, so long as the search is conducted in a reasonable manner. See, e.g., Schmerber, 384 U.S. at 770-71. But the record is devoid of any evidence from which the officers reasonably might have inferred that evidence would be destroyed if they took the time to secure a warrant and summon medical personnel. When the baggie was removed, Fowlkes was handcuffed, tased, and surrounded by five police officers. He was under arrest and in the custody of the LBPD. Fowlkes, like the evidence lodged inside his rectum, was not going anywhere.
Similarly, the record contains no evidence that a medical emergency existed. See Cameron, 538 F.2d at 259 & n.8 (“There were no facts on the record indicating that failure to remove the heroin would constitute a danger to the suspect. … [O]nly a showing of the greatest imminent harm would justify intrusive action for the purpose of removal of the drug.”); see also Johnson v. United States, 333 U.S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436 (1948) (“No suspect was fleeing or likely to take flight.”). Thus, there was time to take steps—potentially including, inter alia, securing medical personnel, a warrant, or both—to mitigate the risk that the seizure would cause physical and emotional trauma.
Further, the practicability concerns underlying Bull and Florence are absent here. While we have approved suspicionless visual strip searches in the prison intake context given the government’s need to keep contraband out of prisons and the sheer volume of incoming inmates, the government does not contend that it is necessary to seize evidence from the body cavities of every person booked into the Long Beach City jail. In Bull, for example, over a sixty month period, from April 2000 to April 2005, visual body cavity searches revealed only seventy-three cases of illegal drugs or drug paraphernalia hidden in arrestees’ body cavities—a rate of approximately fifteen cases a year. 595 F.3d at 969. And, in Bell, the Supreme Court noted “only one instance” where an inmate was discovered attempting to smuggle contraband into the institution in this manner. 441 U.S. at 558.
The relatively small numbers of inmates concealing contraband in their body cavities undercuts any argument that it would be impractical to take additional “steps to mitigate the anxiety, discomfort, and humiliation that … suspect[s] [like Fowlkes] may suffer.” Cameron, 538 F.2d at 258. One step in particular, obtaining a warrant, would place very little burden on the government given these small numbers and technological advancements that facilitate nearly immediate access to warrants.9 See id. at 259 (“It should not have been difficult to obtain a warrant ….”). That LBPD policy requires medical personnel to perform cavity searches under sanitary conditions also suggests that there were no practical obstacles to taking these additional steps to mitigate the potential danger to prisoners like Fowlkes.
In the end, the LBPD conducted a warrantless forcible seizure of an unidentified item of unknown size from Fowlkes’ rectum by non-medical personnel who (1) did nothing to assure that the removal was safe and performed under sanitary conditions; (2) were aided by the use of a taser but not by lubricant; (3) seized the object in the absence of exigent circumstances; and (4) acted in violation of LBPD policy. No single factor is dispositive, but under the totality of the circumstances presented here, we conclude that the manner of this seizure was unreasonable. See Cameron, 538 F.2d at 258-60. The district court therefore erred in admitting the unreasonably seized evidence at Fowlkes’ trial.
