Black Robes Speak!: Federal Appeals Court Panel Rules Police Can't Warrantlessly Get A Doctor To Drug And Sedate An Accused ... Just To Retrieve Drugs From Him!
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Monday, August 26, 2013

Federal Appeals Court Panel Rules Police Can't Warrantlessly Get A Doctor To Drug And Sedate An Accused ... Just To Retrieve Drugs From Him!

The U.S. court of Appeals for the Sixth Circuit released an interesting new criminal opinion today, which can be viewed and read in its entirety here. The case is United States v. Felix Booker, No. 11-6311.

Booker was a 24-year old black man, who was originally arrested for possession of marijuana, after the car in which he was a passenger was pulled over on a traffic stop in Knoxville, Tennessee.  Problem was, he did not have nearly enough marijuana (more than 1/2 ounce) on him to get arrested.  Under Tennessee law, the police should only have written him a citation, not arrested him.  But the police suspected that he was smuggling drugs in his anus, so following his arrest, they took him to a hospital emergency room in Oak Ridge, Tennessee, to an E.R. doctor who had previously performed digital rectal exams for the police on suspects in two other cases.  The doctor said that he was concerned that the defendant might die, if unwrapped drugs were absorbed through his intestines into his blood.  Keep in mind that the police did not have a search warrant, and the "patient" did not consent to the procedures.

Because the arrestee clinched his butt cheeks and sphincter muscle, the doctor could not insert his finger in the man's anus.  Thus, the doctor intubated the patient, and sedated and paralyzed him with I.V. drugs, rendering him unconscious for 20 to 30 minutes.  The doctor then performed a digital rectal exam and removed a 5 ounce (not grams) rock of crack cocaine, which he gave to the police to use as evidence.

A Federal District Judge was reversed on appeal to the Sixth Circuit, which held that he should have granted the Defendant's Motion to Suppress the Evidence.  The Defendant's conviction was reversed and he cannot be retried.  Interestingly, the Circuit Court found that for 4th Amendment search and seizure purposes the doctor was serving as a state law actor, on behalf of the police.  A dissenting Judge disagreed on that point.  By now, the Defendant has already served most of his sentence and was at a Knoxville halfway house, due to be released on October 2, 2013.

There can be little doubt that this defendant will have a very good civil rights lawsuit (28 U.S. code section 1983) to file.  He should be awarded at least several hundred thousand dollars (a million dollars?) by settlement or judgment because of this ordeal, including the approximately 3 years he spent in jail and prison.  The E.R doctor may also be criminally prosecuted for battery under state law, since these procedures were performed without the "patient's" consent.  I suspect that the Tennessee State Medical Licensing Board may have something to say to the E.R. doctor about his conduct too.

The facts of this case are truly outrageous.  This opinion should be added to a law school case book on search and seizure law.  If the police had first taken an X-Ray of the crack rock in the defendant's anus and showed it to a Judge, they might have persuaded a Judge to sign a search warrant, to remove the crack rock, but here they didn't even think of trying that approach first.  It is hard to imagine this kind of thing can still happen in America.

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