Federal Appeals Court: Officers Can’t Anally Probe Inmate Without Medical Assistance Or Warrant

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Corrections officers violated the Constitution when they probed an inmate’s anal cavity to search and remove suspected drugs without any medical assistance, a federal appeals court ruled this week. The ruling limits what corrections officers can do to newly admitted inmates, after a 2012 U.S. Supreme Court decision upheld the use of strip searches for anyone arrested and taken to jail.

In an opinion that depicts the invasive search in graphic detail, the two-judge majority on the U.S. Court of Appeals for the Ninth Circuit concludes that pulling things out of an individual’s body cavity without medical assistance poses particular danger to the inmate — and violates the jail’s policy to “summon medical personnel.” Mark Tyrell Fowlkes was arrested and taken to jail after he was pulled over for expired registration and officers reported spotting drugs in his car. As jail staff performed the typical strip search, they said he made a motion as if pushing something into his rectum, and saw part of a plastic bag protruding. Officers stunned him with a Taser, handcuffed and restrained him, and forcibly removed the bag, which contained cocaine.

“A warrantless search of the human body implicates an individual’s ‘most personal and deep-rooted expectations of privacy’,” the court wrote, quoting a 1985 U.S. Supreme Court decision.

“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 court wrote, noting that even if officers feared that defendant Mark Tyrell Fowlkes would destroy evidence, he was sufficiently restrained by five officers such that he could have been monitored while they awaited medical assistance. The court also found that the search was “patently unreasonable” — particularly given that the scope of the search interfered with his “bodily integrity” — and that officers at the Long Beach, California, jail should have first obtained a warrant.

Fowlkes’ lawyer told the National Law Journal the ruling should have a “sobering effect on the techniques and protocols the jails use.”

Jail is one of several places in which law enforcement officers aggressively probe anal cavities for drugs. In another ruling last August, a different federal appeals court held that police violated the Constitution when they transported a drug suspect to the hospital and had doctors paralyze, intubate, and anally probe him. Months after that decision, several men in New Mexico reported that police had ordered forced anal probes of individuals seized at traffic stops.

And in a Texas traffic stop last August, video depicts police probing the genitals and anal regions of three women for marijuana on the side of the road.

Strip searches performed when individuals are arrested and taken to jail are also invasive in their own right. They typically involve requiring suspects to stand naked, squat, spread their buttocks, and lift their genitals as officers perform close visual inspections. The 2012 U.S. Supreme Court decision held that jails are permitted to perform these searches on anyone arrested — even if they are not suspected of carrying any sort of contraband. The defendant in that case, Albert Florence, was arrested and held in jail for six days after he was improperly arrested for outstanding speeding tickets. In his dissent from that holding, Justice Stephen Breyer noted, “the searches here involve close observation of the private areas of a person’s body and for that reason constitute a far more serious invasion of that person’s privacy.”