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In The News: Body Searches Under The Fourth Amendment


Invasive Body Search Without Warrant In California: Ninth Circuit Affirms Fourth Amendment

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In a recent opinion, the Ninth Circuit reversed part of a mans conviction for drug possession and intent to distribute, saying that evidence used against him at trial had been obtained in violation of his fourth amendment rights. The Fourth Amendment protects individuals from unreasonable searches and seizures.

Judge Wardlaw wrote in her opinion that the forcible removal of an unidentified item of unknown size from Mark Tyrell Fowlkes rectum by officers without medical training or a warrant was a brutal and physically invasive seizure. She concluded that the evidence should not have been allowed at Fowlkes trial.

New-York-Criminal-Appeals-Felony-ConvictionsThe Facts

In the summer of 2006, information from certain tapped phone calls led Californias Long Beach City Police department to believe that Fowlkes was arranging a drug deal. When he was stopped after the alleged drug deal, officers found that he was in possession of .61 grams of cocaine.

Soon after, the officers performed more wiretaps, which led them to believe that Fowlkes was planning to remove contraband from his home. When officers arrived at his apartment a few days later, they found a loaded 9mm handgun and 2.6 grams of cocaine. Fowlkes was placed under arrest but was released soon after.

A week later, Long Beach Police Officers asserted that they had witnessed what appeared to be a drug deal between Fowlkes and another man. Officers stopped Fowlkes car, pulling him over for an expired registration. Fowlkes denied the officers consent to search the car but the officers claimed that they saw marijuana in the side panel of the car. They arrested Fowlke and brought him to Long Beach City Jail.

The SearchChooseTheRightCriminalAppealsLawyer

At intake, five officers observed Fowlke in the strip search room. He was instructed to remove his clothes, face a far wall, and bend over. He was then asked to spread his buttocks. At this point one of the officers, Sergeant Michael Gibbs, claimed he saw Fowlke trying to push something into his rectum. According to the opinion, Gibbs delivered a drive stun tase to the center portion of the defendants back to prevent Fowlke from doing so.

After the tasing, officers claimed to be able to see something protruding from Gibbs rectum, supposedly a plastic bag. However, none of the officers could tell what the plastic bag contained. The officers also could not say how large or how far into Fowlkes body the bag extended. None of the Long Beach Police Officers had any relevant medical training.

In spite of all this, the officers did not bring medical personnel into the room, did not move Fowlkes to a sanitary location as required by the jails written policy, and did not consider allowing Fowlke to pass the suspected contraband naturally. Instead, Sergeant Gibbs forcibly removed the bag.

The Decision

The appeals court found the actions of the Long Beach officers unreasonable. The court referenced a Supreme Court case, Winston v. Lee, which held that an intrusion into the human body implicates an individuals most personal and deep-rooted expectations of privacy.?

Even though the jail has a strong interest in finding and removing contraband from its premises, jail officers still need to get a warrant before performing an invasive body search. In addition, officers must make sure that these searches are being done in a safe and sanitary manner. The court was particularly disturbed by the fact that Sergeant Gibbs was obviously planning to conduct a body cavity search from the get go: Gibbs had gone to the strip search room carrying protective gloves, a stun gun Taser, and was accompanied by more officers than necessary for a routine strip search.

This decision is an important victory for defendants facing drug charges in California and other jurisdictions within the Ninth Circuit. In many instances, an officer needs a warrant to search an individual and it is important that defendants and their attorneys appeal unfair sentences (like this one) to ensure officers are following the law.

As a result of this appeal, one of Fowlkes convictions for drug possession and intent to distribute was thrown out. He will be resentenced as a result of this reversal.


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