Forced catheterization of drug suspects with a search warrant, who refused to urinate on demand, because of suspicion of drug use was unreasonable under the Fourth Amendment under Schmerber. The individual defendants get qualified immunity, however, because of a lack of a “robust consensus of cases” except for a male officer holding the leg of a female prior sex assault victim in obvious distress while she endured the forced catheterization nude from the waist down in a hospital. Municipal liability questions deferred. Riis v. Shaver, 2020 U.S. Dist. LEXIS 74484 (D.S.D. Apr. 28, 2020):
The Supreme Court rejected just such a “more substantial intrusion” in Winston v. Lee, 470 U.S. 753 (1985). There, the Court enjoined police from forcing an armed robbery suspect to have a bullet lodged in his chest surgically removed. Winston, 470 U.S. at 763-67. The Court analyzed the reasonableness of the proposed surgery under what it called the “Schmerber balancing test,” which consists of three factors: (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.” Winston, 470 U.S. at 761-63. The Court held that the surgery, which involved placing the suspect under general anesthesia and “surgical probing beneath his skin,” would be unreasonable under this test; although the bullet may have been helpful in prosecuting the suspect, this interest did not outweigh the potential health risks to the suspect and the “severe” intrusions on his privacy. Id. at 763-67.
Courts have applied the Schmerber balancing test to other bodily intrusions, including body-cavity searches, United States v. Oyekan, 786 F.2d 832, 839-40, 839 n.13 (8th Cir. 1986); Rodriques v. Furtado, 950 F.2d 805, 809-11 (1st Cir. 1991); proctoscopies, United States v Gray, 669 F.3d 556, 564-65 (5th Cir. 2012), vacated on other grounds 568 U.S. 802; x-rays, Spencer v. Roche, 659 F.3d 142, 147-48 (1st Cir. 2011); and catheterizations. Elliott v. Sheriff of Rush Cty., 686 F. Supp. 2d 840, 858-60 (S.D. Ind. 2010). And courts have analyzed searches under the Schmerber test even when the police had a warrant. See Gray, 669 F.3d at 564; Husband, 226 F.3d at 630-36; United States v. Bullock, 71 F.3d 171, 176-77 (5th Cir. 1995). This Court now applies the Schmerber balancing test and other relevant factors to determine whether the catheterization of each plaintiff was reasonable.
. . .
iv) Balance of the Schmerber Factors
A balancing of the Schmerber factors indicates that the catheterizations violated the Fourth Amendment. The first factor does not count much in either party’s favor because although the catheterizations posed some risk to the Plaintiffs’ health and safety, this risk was not great. But the unreasonableness of the Defendants’ conduct becomes clear under the second and third Schmerber factors. Defendants’ need to obtain the Plaintiffs’ urine to prove a low-level drug crime did not justify subjecting the Plaintiffs to involuntary catheterization, a highly invasive—and in these cases—degrading medical procedure. Consider Alvarez’s case. The law enforcement need for Alvarez’s urine was not so great that it was reasonable for a male officer to hold down her bare leg, as a nurse ran a tube up her urethra and into her bladder, as Alvarez lay naked from the waist down screaming, even though she had told all present about having been sexually assaulted and was visibly distraught. Indeed, by the time of the forcible catheterization of Alvarez, law enforcement already had evidence of her driving under the influence of alcohol, so law enforcement’s purpose in her involuntary catheterization was merely to see if evidence of some other charge of ingestion—in her case of marijuana—might also be brought. There is no community interest in involuntarily catheterizing an emotionally distraught woman with a history of having been raped just to see if evidence exists to tack a drug ingestion charge onto an ironclad case of driving under the influence of alcohol. Peters’s case also illustrates the point. Peters was arrested on a bench warrant for failing to pay a court-ordered financial obligation after having been seen outside an apartment complex. The point of catheterizing Peters was to see if he could be charged with a drug-ingestion offense. A video shows Peters being catheterized with four officers holding him down and with his feet twitching as he screams in pain repeatedly.
Importantly, all the Defendants could have used a blood test to find evidence of recent drug ingestion. Although a blood test is inferior to a urine test in detecting past use of methamphetamine, the Fourth Amendment limits the ability of law enforcement to always get the best evidence, whatever the cost. See Winston, 470 U.S. at 759 (“A compelled surgical intrusion into an individual’s body for evidence, however, implicates expectations of privacy and security of such magnitude that the intrusion may be ‘unreasonable’ even if likely to produce evidence of a crime.”); United States v. Torres, 751 F.2d 875, 883 (7th Cir. 1984) (Posner, J.) (“[A] search could be unreasonable, though conducted pursuant to an otherwise valid warrant, by intruding on personal privacy to an extent disproportionate to the likely benefits from obtaining fuller compliance with the law.”). In sum, forcing the Plaintiffs to undergo catheterization was unreasonable given the extreme intrusion on the Plaintiffs’ dignitary interests, the nature of the suspected crime, and the availability of less intrusive means to collect evidence of guilt.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)