Removal of Drugs From Rectum Unconstitutional

     PASADENA, Calif. (CN) - An officer violated a man's civil rights by removing a plastic bag containing drugs from his rectum, the 9th Circuit ruled Monday.
     In a 2-1 decision, the court of appeals in Pasadena said the "brutal and physically invasive" search was unconstitutional under the Fourth Amendment, reversing defendant Mark Tyrell Fowlkes conviction for distribution and possession of cocaine.
     Fowlkes was taken on Sept. 13, 2006 to the Long Beach jailhouse after officers allegedly found 2.6 grams of crack cocaine, a digital scale and loaded 9mm gun at his apartment. After a strip search in a basement room, it was alleged that officers observed a dime-sized portion of a plastic bag protruding from Fowlkes' rectum.
     Long Beach Police Sergeant Michael Gibbs stunned the naked Fowlkes with a Taser, five male officers restrained the detainee, before Gibbs snapped on protective gloves and used his thumb and forefinger to remove the bag, according to court records,
     In a 41-page opinion, the 9th Circuit court overturned Fowlkes 2008 conviction and remanded the case back to the California federal court.
     Judge Kim McLane Wardlaw found the officers should have obtained a warrant before conducting the search because no pressing or demanding circumstances existed, including the risk that Fowlkes might destroy the evidence.
     The government was not entitled to an exception to the search warrant requirement even though it has a "strong interest in preventing contraband from entering its prisons and jails," Wardlaw noted.
     Since only a small number of inmates attempt to conceal contraband in "body cavities" there is no need to conduct such searches without a warrant, and the government did not make clear that obtaining one is not practicable, the judge found.
     "These small numbers and the technological advancements that facilitate nearly immediate access to warrants, render the burden placed on the government to obtain a warrant negligible," Wardlaw wrote.
     Wardlaw said Gibbs' search was "dangerous" and "patently unreasonable."
     "First, Sergeant Gibbs evinced an intent to conduct any body cavity search he thought necessary long before he saw the plastic bag protruding from Fowlkes's rectum or was privy to any other possible justification for such an intrusion," the judge wrote. "Gibbs, suspecting that Fowlkes had contraband in his person, made his way to the strip search room in the basement armed with his protective gloves, a stun gun Taser, and additional officers - in short, everything he needed to conduct a cavity search, except a warrant."
     The officers ignored the jail's own policies by failing to conduct the search in a sanitary room with a medical professional, the judge added.
     "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," Judge Wardlaw wrote.
     But in a partial dissent, Judge Jane Restani said the search was justified.
     "The majority opinion departs from the record presented to us on appeal to craft a blanket rule that ultimately may prove difficult to administer, at the expense of jailhouse security," Restani warned.
     Writing that her colleagues had engaged in "wholesale speculation, to portray this case as one involving brutal, unnecessary police action," Restani said Gibbs explained during trial that he wore gloves at every strip search, and was armed with a stun gun because the 250-pound, six-foot-tall defendant had acted aggressively.
     "I suppose the officers could have placed Fowlkes in an isolation cell, handcuffed, partially clothed, and under constant surveillance, allowing them to respond immediately when the baggie worked its way the other inch or so out of Fowlkes' body. This hardly seems to be, per se, a less intrusive or offensive condition in which to place a detainee," Restani wrote.
     It "remains a mystery" if a medical professional was on hand to remove the bag, the judge added.
     "Without such information, I am hesitant to impose the blanket rule apparently endorsed by the majority that all removals of protruding objects must be performed by medical personnel, even when the detainee is noncompliant during a strip search," Judge Restani wrote.
     Judge Mary Murguia joined Wardlaw in vacating Fowlkes' conviction, and remanded for resentencing.
     The court rejected Fowlkes' challenges to evidence obtained through wiretaps, and seized from his apartment and car, in addition to his assertions of evidence tampering, and a request to dismiss the indictment for double jeopardy.