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A nonconsensual X-ray of an arrestee’s entire abdomen based on a search warrant for an anal cavity search is constitutional, the U.S. Court of Appeals for the 1st Circuit has ruled. On Oct. 18, a unanimous panel, in Spencer v. Roche, affirmed summary judgment rulings in favor of government and hospital defendants by Judge Dennis Saylor IV of the District of Massachusetts. Saylor issued rulings in September and November 2010 and a final judgment for the defendants in February 2011. In 2008, Shane Spencer sued two Worcester, Mass., police officers, the city and Saint Vincent Hospital, where the X-rays were taken following his July 2005 arrest for driving with a suspended driver’s license. According to the 1st Circuit briefs, police obtained a search warrant based on an informant’s tip that Spencer had placed crack cocaine in his anal cavity. Spencer claimed the defendants violated his constitutional rights under the Fourth, Fifth, Eighth and 14th Amendments. He also claimed violations of the Massachusetts Civil Rights Act, assault and battery, intentional infliction of emotional distress, municipal/ supervisory liability and invasion of privacy. In addition, he claimed that after the doctor did not find drugs in his anal cavity, he ordered an X-ray of Spencer’s kidneys, ureters, and bladder (KUB), and an upright X-ray study at a police officer’s behest. The two individual defendants and the city of Worcester claimed the doctor ordered the X-ray because digital examinations of an anal cavity are often inconclusive. Their brief also argued that the KUB is the only anal cavity X-ray, and it happens to show the surrounding abdominal area. Saint Vincent’s brief states, that “the X-ray search was within the scope of the search warrant,” and its employees have qualified immunity from the suit because they followed police direction. Senior Judge Bruce Selya authored the opinion, joined by Judges Michael Boudin and Kermit Lipez. The court found that the X-ray search “comported with the strictures of both the United States Constitution and the Massachusetts Declaration of Rights.” Selya cited a variety of U.S. Supreme Court and 1st Circuit cases to determine that the X-ray “passed muster under the Fourth Amendment.” “These cases teach that in determining the reasonableness of an intrusion into a suspect’s bodily integrity, a court must consider the strength of the suspicion driving the search, the potential harm to the suspect’s health and dignity posed by the search, and the prosecution’s need for the evidence sought. In certain circumstances, the court also may consider the availability vel non of a less invasive means of conducting the search,” he wrote. Selya also cited rulings by the 5th Circuit and 8th circuits that have upheld X-ray searches at border crossings when customs officials suspected drug smuggling. In addition, he cited a 2d Circuit ruling affirming an X-ray search of a criminal defendant who set off a metal detector while on the way to the jury’s announcement of its verdict. Selya concluded that the fact that “the KUB study necessarily included an image of the appellant’s stomach was simply an unavoidable side effect of the valid x-ray search,” authorized by a 1979 Supreme Court ruling Dalia v. U.S. Even if the police officers had ulterior motives for wanting a KUB X-ray “the search was lawful…A police officer’s subjective motive, even if improper, cannot sour an objectively reasonable search,” Selya wrote, citing a 1990 1st Circuit ruling in U.S. v. Hadfield. “With the question of subjective intent removed from the equation, the appellant’s ‘scope’ argument collapses,” Selya wrote. “It is well settled that a police officer’s observation of an item in plain view does not constitute a search so long as the officer makes his observation from a lawful vantage point….This principle likewise applies to observations made by the radiologist, who was acting as an agent of the police.” Selya found that Spencer’s state constitutional claims failed because a 1997 ruling by the Supreme Judicial Court of Massachusetts that he relied on, Commonwealth v. Sbordone, “stands for the general proposition that civilian aid during an authorized search may be appropriate in some circumstances.” He determined that the failure of Spencer’s constitutional claims makes it unnecessary for the 1st Circuit to consider three other claims: assault and battery, intentional infliction of emotional distress and that the City failed properly to train the officers. In addition, Selya wrote, the hospital cannot be vicariously liable because its employees committed no tort. Finally, Selya disposed of Spencer’s state-law invasion of privacy claim on the ground that “it was unarguably reasonable for the Hospital’s employees to convey to the officers the results of a lawful x-ray search conducted under the aegis of a valid warrant.” Spencer’s lawyer, Valeriano Diviacchi, a Boston solo practitioner, said that the 1st Circuit stated at one point in its ruling that that “the police had no right to search for drugs in the appellant’s stomach,” so he doesn’t see how the opinion could conclude that it was reasonable to do so. Diviacchi also said the police defendants in the case “took advantage of a technological need not contained within the four corners of the warrant” to violate the search warrant’s scope. “It is bad precedent to allow technicians, absent any judicial or even law enforcement discretion, to start deciding the scope of warrants.” Diviacchi said he intends to file a petition for a writ of certiorari to the U.S. Supreme Court to correct the decision’s precedent concerning the constitutional limits of police searches conducted with the aid of modern technology and medical professionals. The Worcester defendants’ lawyer, Wendy Quinn, the assistant city solicitor for Worcester, said the decision shows that, because there was a valid search warrant, “it was objectively reasonable for the officers to take Mr. Spencer to the hospital for the execution of the search warrant with an X-ray. There was no Fourth Amendment violation.” Saint Vincent’s lawyer, Richard Jensen, a partner at Boston’s Morrison Mahoney, said the 1st Circuit properly recognized that allowing trained medical professionals to conduct the authorized search by using an X-ray, was a “reasonable, minimally intrusive method under Fourth Amendment principles.” “The decision provides welcome clarification to both civilian medical professionals and to law enforcement regarding the appropriate actions that may be undertaken in executing a valid search warrant involving body cavity searches,” he said. Sheri Qualters can be contacted at [email protected].

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