Monday, October 20, 2014

US v. Fowlkes (9th Cir. - Aug. 25, 2014)

I'll merely recite the relevant facts of this case without (much) commentary.  With the caveat that they are a little gross, so the squeamish might want to skip to the next post:

The defendant (Mark Fowlkes) is a big guy, and the DEA suspects he has drugs.  The police conduct a pretextual stop for an expired registration, see some alleged drug residue, and arrest him.  Then it gets a little funky:

"At intake, the officers strip searched Fowlkes in the jail’s strip search room, a five by six enclosure with three concrete walls and an opening in the fourth wall. Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and 'assistance' in the form of additional officers because he thought Fowlkes might have drugs. The officers instructed Fowlkes to remove his clothing and face the far wall as they watched him. Fowlkes was instructed to bend over, spread his buttocks, and cough, but according to Sergeant Gibbs, Fowlkes instead moved his hand toward his right buttock. Instructed to repeat the procedure, Fowlkes made a quick movement to his buttocks area with his hand and appeared to Gibbs 'to be forcing or forcibly pushing an item inward.' Officer Harris testified he believed it was possible Fowlkes was attempting to push something into his anus. However, he did not actually see any object Fowlkes could have been pushing, and he acknowledged that there was no other way for Fowlkes to comply with the directive other than by reaching back and putting his fingers towards his anus. For his part, Sergeant Gibbs testified that he believed Fowlkes appeared 'to be forcing or moving an object or further
secreting an object' inside his rectum to destroy evidence.

To prevent that, Gibbs 'delivered a drive stun tase to the center portion of the defendant’s back.' Fowlkes’s arms went straight into the air, and the officers handcuffed him. Fowlkes began to 'squirm[]' and 'struggl[e],' and the officers 'lean[ed] him against the wall, . . . brace[d] his body
up against the wall' so that '[h]e end[ed] up being bent over.'  With Fowlkes in this position, the officers testified that they could see what appeared to be a plastic bag partially protruding from Fowlkes’s rectum.

Officers continued to 'brac[e] [Fowlkes] up against the wall' to prevent him from resisting. At this point, Fowlkes was handcuffed and incapacitated by five male officers, making escape or resistance impossible. Fowlkes had no ability to destroy or further secrete what was in the plastic bag. Neither Sergeant Gibbs nor the other officers could tell what, if anything, the plastic bag contained while it remained in Fowlkes’s rectum. Nor could they determine how large it was or how far it extended into Fowlkes’s body. Despite this, and despite the fact that none of the officers had any relevant medical training, the officers did not attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally. Instead, Sergeant Gibbs forcibly 'retrieved' the bag. He put on the protective gloves he had brought along to the 'search' and pulled the object from Fowlkes’s rectum without the assistance of anesthesia, lubricant, or medical dilation. Although Sergeant Gibbs testified that he was able to remove the object using his thumb and index finger without penetrating Fowlkes’s anal cavity, Officer Harris testified that the removal itself was a difficult, abrasive procedure:

I watched the entire process of him removing it in his fingers. [The object] went from a dime size to a penny size to a nickel size to a quarter size to somewhat near a golf ball size as it was taken out.

Officer Harris further testified that he could 'see blood and what looked to be feces' on the plastic bag after it had been removed. Photographs of the object that are included in the appellate record confirm that the object was covered in blood."


Judge Tashima writes the majority opinion (joined by Judge Alarcon) and holds that this process was an unreasonable search and seizure in violation of the Fourth Amendment.  Should have waited for a warrant, or let the stuff pass naturally, instead of simply yanking it out of his butt.  Judge Restani, sitting by designation from the Court of International Trade, dissents.

Just one minor point.  The officers clearly didn't know how big the thing was.  On the one hand, you don't expect a golf-ball sized thing up there.  And once you've started the process of pulling it out -- on the assumption it's just a tiny piece of rock or something -- it's sort of difficult to figure out when to stop as the thing goes from "dime" size to "penny" to "quarter" to essentially mondo huge.

None of which necessarily conflicts with Judge Tashima's likely position that the officers shouldn't have even started the whole process.  But I just wanted to mention it because my money's on the fact that the officers might well have done something different if they'd have actually thought that there was a golf ball-sized thing up there as opposed to the quick "snatch-and-grab" I bet they thought they were about to perform.