Police suspected that a man named Felix Booker was concealing contraband inside his body. They arrested him on a drug charge and later, against his will, a doctor paralyzed him for eight minutes to take a look.
The doctor found a piece of rock cocaine, a little more than five grams’ worth, in Booker's rectum. At trial, Booker was convicted on a federal drug charge—possession with intent to distribute—and sentenced to five years in prison.
Booker's lawyer argued in the U.S. Court of Appeals for the Sixth Circuit that the search went too far, and a panel on Monday agreed. In a divided ruling, the court reversed Booker's drug conviction, concluding that the invasive search violated the Fourth Amendment.
The government's actions were "so unreasonable as to shock the conscience," the Sixth Circuit panel majority said. The trial judge, the appeals court said, should have suppressed the evidence that the police, via a doctor, retrieved from Booker's body that day in February 2010 in Oak Ridge, Tenn.
"Even if [Dr. Michael] LaPaglia was motivated by benevolent medical ideals, his actions in paralyzing and intubating Booker and performing a rectal examination without his express or implied consent constitute medical battery," Judge John Rogers wrote, joined by Senior Judge Ronald Lee Gilman.
The court rejected the government's position that, even if a Fourth Amendment violated occurred, the drug evidence should not be suppressed. "[T]his is not a situation in which the officers relied in good faith on the mistake of a magistrate of judge," Rogers wrote.
"Based on the circumstances of this case, a reasonably well-trained officer and physician would have known that the search was unlawful," he continued.
The U.S. Attorney's Office for the Eastern District of Tennessee declined to comment on the ruling. A lawyer for Booker, Robert Jolley Jr. of Knoxville, Tenn.'s Jolley & Eldridge, questioned why Booker was even prosecuted in federal district court in the first place.
The case against Booker started with a traffic stop; he was a passenger in a car that an officer pulled over because of an expired tag. A police dog, Argo, alerted to the presence of marijuana. The officer reported finding a bag that contained 0.06 grams of pot.
The police, the Sixth Circuit said, arrested Booker on a felony marijuana charge "despite being unable to recover enough marijuana to justify an arrest under Tennessee law." The driver of the car was not arrested.
In custody, Booker's constant fidgeting fostered police suspicious that he was hiding something. Police sought guidance from the state attorney general's office and "were advised to take the defendant directly to a hospital," Rogers wrote.
At the hospital, the doctor used a procedure of "last resort"—a paralyzing drug—to prevent Booker from contracting his muscles. He was intubated; a machine breathed for him during the medically controlled paralysis.
Prosecutors, including assistant U.S. attorney Debra Breneman in Knoxville, argued that the doctor's search of Booker's body was a medical procedure not subject to Fourth Amendment analysis.
"The officers suspected that the defendant had hidden narcotics in his rectum in an effort to evade law enforcement detection and that, with every passing moment, the risk of harm to the defendant was increasing," government lawyers wrote in their appellate brief. "A rectal examination was the only method to retrieve the narcotics, and that procedure was performed by a licensed physician in a hospital consistent with settled medical practice."
Booker's attorney, Jolley, replied that the doctor was acting on behalf of law enforcement, making him an agent of the state. Police, Jolley wrote in court papers, "instigated and encouraged the compelled examination" of Booker.
The doctor "ignored Mr. Booker's refusals to allow the invasive search of his rectum, and ordered the nurse to administer drugs until Mr. Booker was completely paralyzed and unconscious, requiring intubation to keep him alive," Jolley wrote in a brief in the appeal.
The police, Rogers concluded for the majority, “knew” what the attending physician was going to do to Booker. A reasonable police officer, he wrote, "would know that the doctor did not, independent of police direction, have the legal authority to intubate and paralyze the suspect without his consent."
Sixth Circuit Judge Julia Smith Gibbons wrote in dissent, saying she would affirm the trial judge's conclusion that the doctor was not acting as an agent of the government. The doctor, not the police, "made the decision to pursue the anal cavity sweep to the point of intubating and paralyzing Booker,” she wrote.
Gibbons said the majority opinion punishes police officers for physician "misconduct," taking the exclusionary rule "far beyond its permissible bounds." Gibbons added that "broad application of the exclusionary rule is unnecessary to dissuade [doctors] from performing unlawful searches."
"Doctors are not thugs; they are legally licensed professionals trained to handle sensitive medical matters," Gibbons wrote. "Law enforcement officers rightly defer to their judgment in their area of expertise. Unfortunately, there are doctors who will abuse that trust, which is precisely what happened in this case."
Contact Mike Scarcella at email@example.com.