Officers Need Warrant to Extract Drugs From Man's Rectum

Sheriff's deputies at the Long Beach jailhouse understandably don't want drugs circulating around the facility. So when Mark Fowlkes was brought in on drug and weapons charges, and officers allegedly peeped a portion of a plastic baggie poking out of his rectum, they were understandably concerned.

Their response, however, crossed the line into a Fourth Amendment violation when they Tased him, five officers held him down, and Sgt. Michael Gibbs, with gloved hands, used his thumb and forefinger to remove a bloody, golf ball-sized bag from Fowlkes' rectum.

The Ninth Circuit, holding that the evidence should be suppressed, called the search "brutal and physically invasive," as well as "degrading and dangerous."

Overeager Fingers

Judge Kim Wardlaw, writing for the majority, seemed particularly irked at Sgt. Gibbs' enthusiasm, noting that he "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.

"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," Wardlaw wrote.

No Pressing Need

While there is a "strong interest in preventing contraband from entering its prisons and jails," Judge Wardlaw noted that the drugs weren't going anywhere, and that "technological advancements that facilitate nearly immediate access to warrants, render the burden placed on the government to obtain a warrant negligible."

The Fourth Amendment requires a warrant to search for drugs within a person's body, and as the Supreme Court so eloquently put it: "Prison walls do not form a barrier separating prison
inmates from the protections of the Constitution."

Judge Wardlaw also worried about the risk to the inmate: "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. ...

"The lack of a warrant coupled with the unreasonable and dangerous methods used during the body-cavity search compel our conclusion that this search violated Fowlkes's Fourth Amendment rights and that the district court should have suppressed the evidence," she concluded.

Dissent: Jailhouse Security

"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," Judge Jane Restani began.

Restani noted that Sgt. Gibbs testified he wore gloves at every strip search, and that he had the Taser on hand because of the inmate's aggressive behavior.

She also noted that medical professionals may not be handy and that the majority's rule could prove cumbersome in practice.

"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 concluded.

Related Resources:

• United States v. Fowlkes (FindLaw's Caselaw)
• Guard Can't Read Legal Mail From Prisoner to Attorney: 9th Cir. (FindLaw's U.S. Ninth Circuit Blog)
• On Again, Off Again Arizona Execution Lasts Two Hours (FindLaw's U.S. Ninth Circuit Blog)