Ninth Circuit Revisits Jailhouse Rectal Search

     PASADENA, Calif. (CN) – The Ninth Circuit toppled a conviction Monday after rehearing claims over the plastic bag filled with drugs police removed from a man’s rectum.
     The new decision by a split appeals panel echoes the 2-1 ruling that the court filed last year.
     Both say that Mark Tyrell Fowlkes’ 2008 conviction for distribution and possession of cocaine cannot stand because his “brutal and physically invasive” search by police was unconstitutional under the Fourth Amendment.
     Fowlkes was taken to the Long Beach jailhouse on Sept. 13, 2006, after officers allegedly found 2.6 grams of crack cocaine, a digital scale and loaded 9mm gun at his apartment.
     It was during a strip search in a basement room where officers say they observed a dime-sized portion of a plastic bag protruding from Fowlkes’ rectum.
     Long Beach Police Sgt. Michael Gibbs then stunned the naked Fowlkes with a Taser, while five male officers restrained the detainee.
     Court records say Gibbs next snapped on protective gloves and used his thumb and forefinger to remove the bag.
     In the first ruling on the case last year, Judge Kim McLane Wardlaw wrote for the majority that police should have obtained a warrant before conducting the search because no pressing or demanding circumstances existed.
     Even the government’s “strong interest in preventing contraband from entering its prisons and jails” does not provide an exception to the search-warrant requirement, the court found.
     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, according to the ruling.
     “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.
     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.
     Judge Jane Restani, who sat on the panel by designation from the U.S. Court of International Trade, had filed a partial dissent last year, finding the search justified.
     Writing that her colleagues had engaged in “wholesale speculation, to portray this case as one involving brutal, unnecessary police action,” Restani quoted testimony from Gibbs 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,” Restani wrote. “This hardly seems to be, per se, a less intrusive or offensive condition in which to place a detainee.”
     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,” Restani wrote.
     On Monday, the Ninth Circuit withdrew this ruling and replaced it with a similar one, having granted the government’s motion for a panel rehearing.
     Judge Mary Murguia again joined Wardlaw in the majority with Restani dissenting.

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