Shocking! Medical Procedure Shocks the Conscience and Evidence Must Be Excluded

United States v. Booker, No. 11--6311 (6th Cir. Aug. 26, 2013) (for publication). 

Panel of Judges Gilman, Gibbons, and Rogers.  Judge Gibbons dissented. 

Defendant (D) had hidden crack in his rectum.  Police suspected the D had contraband in his rectum and took him to a doctor.  Without the D's consent, the doctor intubated the D for an hour, rendered him unconscious for 20 to 30 minutes, and paralyzed him for 7 to 8 minutes.  Using a finger, the doctor retrieved the crack and turned it over to the officers.

Even if the doctor was acting entirely for medical reasons, the D was under police control; in these circumstances, the procedure must be seen as attributable to the state for Fourth Amendment purposes.  The procedure, to which the D never consented, "shocks the conscience"; the evidence must be excluded. 

Case started with traffic stop.  Police knew the D from prior encounters.  Drug dog alerted near the D.  During pat down, officer noticed D allegedly "clenched his buttocks."  Officer found rolls of currency, but no drugs.  Search of passenger seat revealed baggies with marijuana and powder residue.  Police arrested D for possessing marijuana despite a an insufficiency of actual marijuana to justify the arrest under Tennessee law. 

Post-arrest, the D's actions made the officers believe he had something secreted in his buttocks.  Strip search conducted.  Officer claimed to see a string protruding.  After an altercation, the officers took the D to a hospital.  Doc told D that doc had to conduct the "procedure" (manually removing any drugs from the rectum) b/c the rectum can absorb drugs quickly, which could create a life-threatening situation.  Naked and cuffed, the D refused to submit.  The doc said he had a "duty" to remove any dangerous substance.  Police allegedly did not direct the doc to do anything. 

D contracted his muscles to preclude the doc's "examination."  Doc ordered injection of a muscle relaxant.  Encounter escalated.  Nurse administered a sedative and paralytic agent intravenously.  D intubated to control breathing.  During the paralysis, the doc removed the rock of crack (> 5grams).  Officer took the rock as evidence. 

Indictment followed.  D argued the officer lacked probable cause to arrest him for marijuana possession and that post-arrest treatment was unreasonable under 4th Am: invasion of privacy, dignity, and "liberty to refuse medical treatment."  Dist ct denied motion.  Jury convicted D.

Conclusions:

D’s "Fourth Amendment rights were violated. The officers brought [D] to [the doctor] and stood by while [the doctor] performed a highly intrusive and dehumanizing procedure on [D] without his consent. On the facts of this case, [the doctor's] actions are attributable to the state government and were so unreasonable as to shock the conscience. Because this conduct is sufficiently deliberate and culpable, suppression of the evidence was a proper remedy."

 

* Sufficient nexus to attribute doc's actions to police. 

 

* No solid evidence D consented to "procedure."  At most there could have been consent to an undrugged digital rectal examination, so D could avoid paralysis.  Doc admitted the D did not consent to paralysis. 

 

* No reasonable 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 [this doctor] was motivated by benevolent medical ideals, his actions in paralyzing and intubating [the defendant] and performing a rectal examination without his express or implied consent constitute medical battery."

 

* Police used doc as tool to search D's person. 

 

* "Procedure" here unreasonable.  From a legal standpoint, "investigative conduct that would shock

the conscience for purposes of the Due Process Clause is 'unreasonable' for purposes of the Fourth Amendment."

 

* Factors to consider regarding constitutionality of forced surgery: 1) extent of procedure's threat to safety/health of individual; 2) extent of intrusion upon individual's dignitary interests in privacy and bodily integrity; 3) community's interest in fairly and accurately determining guilt or innocence.  "In addition, when there was time to obtain a court order and the police declined to seek one, the suspect’s privacy interests should be given particular solicitude."  These factors, analyzed in the circumstances presented, compelled the conclusion that the 4th Am was violated. 

 

* Exclusion necessary.  No good-faith exception to save evidence from exclusion: "Based on the circumstances of this case, a reasonably well-trained officer and physician would have known that the search was unlawful."

 

Judge Gibbons dissented.

 

She did not believe the doctor was a state actor.

 

She found that "[t]he district court reasonably found that the officers took [the D] to the emergency room because they believed he had a serious health problem.  There is no evidence that the officers had met [the doctor] prior to this incident, knew he would be at the emergency room they took [the D] to at that particular time of day, or knew that he had previously worked with the Sheriff’s Department.  In the absence of a record establishing these facts, the premise that [the doctor] was a mere 'tool' of the officers is unsupportable."

 

 

Cop Gets 225 Years for Setting Up Drug Deals for $

United States v. Sease, No. 09-5790 (6th Cir. Oct. 21, 2011) (to be published). Panel of Judges Cole, Rogers, and Griffin.

Former Memphis police officer appealed convictions stemming from a conspiracy to set up drug buys for the purpose of seizing drugs and money for personal profit. Jury convicted him on 44 counts, including charges of conspiring to deprive another of civil rights under color of law, and robbery and extortion under color of official right. Ct sentenced defendant to 225 years.

Defendant challenged the sufficiency of the evidence. Argued he did not violate the rights of the drug-buy participants b/c there was probable cause to arrest the drug dealers and seize the drugs and money. COA affirmed the convictions.

There was a question regarding whether the defendant was challenging the sufficiency of the evidence or just a jury instruction. Ct found it was the former.

Defendant looked to Whren v. United States, 517 U.S. 806 (1996), to argue his position. (Whren is the pretextual-traffic-stops-are-OK case.) Ct rejected the defendant's reasoning, finding that "it is inherently improper for officers to set up drug deals for the purpose of taking the money and drugs for themselves, regardless of the context." The defendant's "actions are improper in an entirely different way and to an entirely different degree than the actions of the officers in Whren."

Whren’s holding that an officer's intentions are irrelevant in the Fourth Amendment analysis "comes out of a concern that courts are poorly positioned to engage in post hoc analysis of officer motivations, particularly in light of the snap decisions that law enforcement officers must make in stressful situations." This defendant, however, "was not faced with a complex set of assessments when he made his stops—the stops were pre-planned and staged to accomplish his criminal purpose."

The punitive purpose of 18 U.S.C. 242 "would be undermined were the court to allow a corrupt officer to hide behind the policy goals of the exclusionary rule." While the subjective intent of officers is irrelevant for purposes of the exclusionary rule, in the § 242 context, courts may inquire whether an officer acted with a corrupt, personal, and pecuniary purpose.

Unlike in the exclusionary rule context, a court must inquire into the subjective intent of the officer because willfulness is an element of an offense under 18 U.S.C. § 242, so there is no additional evidentiary burden to justify ignoring an officer's subjective intent. And while there are "few reported cases that deal with this level of officer misconduct, those that do exist all agree that purely illegal activities by law enforcement constitute a constitutional violation."

The Court cites United States v. Parker, 165 F. Supp. 2d 431, 441 (W.D.N.Y. 2001), in which "three Buffalo police officers, along with a DEA agent, entered into an agreement with a 'known drug trafficker' to arrange a meeting with a more prominent 'Jamaican drug dealer.' The plan was for the officers to rob the drug dealer’s safe house and divide the proceeds from the robbery between themselves, as well as detain the drug dealer and take cash and drugs off his person. In truth, the 'Jamaican drug dealer' was an FBI undercover agent and the officers’ contact was an FBI confidential informant." The officers in that case had also cited Whren in advancing arguments similar to those in Sease's case. The appellate court rejected the arguments, finding that willful conduct by officers, done with the specific intent to violate people's rights, supports conviction under § 242. The appellate case is United States v. Ferby, 108 F. App’x 676 (2d Cir. 2004).

Court here found "where, as here, there is clear evidence that the officers were not engaged in bona fide law enforcement activities, but instead acted with a corrupt, personal, and pecuniary interest, the officers violate the civil rights of those that are stopped, searched, or have their property seized." The defendant "deprived those that he targeted of their constitutional rights, and thus his convictions under 18 U.S.C. §§ 241 and 242 are supported by sufficient evidence."