{"id":9348,"date":"2013-10-20T08:50:08","date_gmt":"2013-08-27T09:07:42","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-08-27T09:07:42","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=9348","title":{"rendered":"CA6: Medically paralyzing suspect for rectal search “shocked the conscience”"},"content":{"rendered":"

Medically paralyzing a suspect, without a warrant or consent, to remove crack cocaine hidden in his rectum shocked the conscience of the court and was unreasonable under the Fourth Amendment. United States v. Booker<\/a>, 728 F.3d 535 (6th Cir. 2013): <\/p>\n

<\/p>\n

Felix Booker was convicted of possession of a five-ounce rock of crack cocaine, which he had hidden in his rectum. Police officers, reasonably suspecting that Booker had contraband hidden in his rectum, took Booker to an emergency-room doctor. The doctor, using a procedure that Booker did not consent to, intubated Booker for about an hour, rendered him unconscious for twenty to thirty minutes, and paralyzed him for seven to eight minutes. Using a finger, the doctor found and removed the crack cocaine, and turned it over to the police. Even though the doctor may have acted for entirely medical reasons, the unconsented procedure while Booker was under the control of the police officers must, in the circumstances of this case, be attributed to the state for Fourth Amendment purposes. The unconsented procedure, moreover, shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process. The evidence resulting from the procedure should accordingly have been excluded, and Booker’s conviction must be reversed.\t\t\t<\/p>\n

. . .<\/p>\n

Finally, no reasonable police officer could believe that, without direction from the police, and over the clear refusal to consent by a conscious and competent patient, a doctor could lawfully go ahead and perform such a procedure. Even if LaPaglia was motivated by benevolent medical ideals, his actions in paralyzing and intubating Booker and performing a rectal examination without his express or implied consent constitute medical battery. Indeed, under Tennessee law, there is medical battery if “the patient [did not] authorize performance of the procedure.” Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). There is of course a privilege generally recognized in tort law for doctors to deliver medically indicated emergency care when the patient cannot make the choice pro or con, often because the patient is unconscious. Dan B. Dobbs, The Law of Torts, \u00a7 106, at 247 (2000); see also Restatement (Second) of Torts \u00a7 892D & cmt. a. Tennessee apparently accepts this exception to the consent requirement. See Ray v. Scheibert, 484 S.W.2d 63, 71 (Tenn. Ct. App. 1972). In this case, however, not only was Booker conscious when he was presented to LaPaglia, but Booker’s statements in no way indicate authorization of the intubate-and-paralyze procedure. This distinguishes Booker’s case from a situation in which the police present an unconscious suspect to a hospital. See, e.g., United States v. Black, No. 88-5266, 1988 WL 107375 (6th Cir., Oct. 14, 1988).<\/p>\n

In short, the police effectively used Dr. LaPaglia as a tool to perform a search on Booker’s person. In these particular circumstances, Dr. LaPaglia’s medical purposes do not immunize the procedures from Fourth Amendment scrutiny.<\/p>\n

. . .<\/p>\n

B. Reasonableness of the Search<\/p>\n

A comparison of this case to Rochin v. California, 342 U.S. 165 (1952), and Winston v. Lee, 470 U.S. 753 (1985), shows that the digital rectal examination was unreasonable. In Rochin, three deputy sheriffs forced their way into Rochin’s bedroom based on information that Rochin was selling narcotics. The deputies saw two capsules sitting on his nightstand and asked Rochin whom the capsules belonged to. In response, Rochin grabbed the capsules and swallowed them. The deputies then handcuffed Rochin and took him to the hospital where the police directed a doctor to force “an emetic solution through a tube into Rochin’s stomach against his will.” Id. at 166. The stomach pumping caused Rochin to vomit up the two capsules, which were found to contain morphine. The Supreme Court held that Rochin’s conviction for possessing these morphine tablets was so fundamentally unfair as to violate the Due Process Clause. The Court said the deputies’ conduct “shocks the conscience” and was “too close to the rack and screw to permit of constitutional differentiation.” Id. at 172.<\/p>\n

The similarity between the present case and Rochin is apparent. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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