United States v. Mark Fowlkes , 804 F.3d 954 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50273
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-00497-
CAS-1
MARK TYRELL FOWLKES, AKA
Mark Fowlkes, AKA Marq Tyrell
Fowlkes, AKA Shawn Walls, ORDER AND
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
May 7, 2013—Pasadena, California
Filed September 28, 2015
Before: Kim McLane Wardlaw and Mary H. Murguia,
Circuit Judges, and Jane A. Restani, Judge.*
Opinion by Judge Wardlaw;
Partial Dissent by Judge Restani
*
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
2 UNITED STATES V. FOWLKES
SUMMARY**
Criminal Law
The panel granted a petition for panel rehearing, withdrew
an opinion and partial dissent filed August 25, 2014, and filed
a new opinion and partial dissent in an appeal from a
conviction for drug distribution and possession with intent to
distribute.
The panel affirmed in part and reversed in part – vacating
a conviction on a count predicated on drugs
unconstitutionally seized from the defendant’s body cavity,
and remanding for resentencing.
The panel held that the forcible removal of an
unidentified item of unknown size from the defendant’s
rectum during a body cavity search at the Long Beach City
Jail, without medical training or a warrant, violated the
defendant’s Fourth Amendment rights, and that the evidence
obtained from this brutal and physically invasive seizure
should have been suppressed.
The panel affirmed the district court’s denial of the
defendant’s motions to suppress evidence obtained through
wiretaps, to suppress evidence seized from his apartment, to
suppress cocaine base and marijuana seized from his car, to
dismiss the indictment on a claim of evidence tampering, and
to dismiss the indictment on double jeopardy grounds
following a mistrial.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. FOWLKES 3
Dissenting in part, Court of International Trade Judge
Restani disagreed with the majority’s decision to suppress the
evidence seized during the jailhouse search because she
believes the facts found by the district court render the
warrantless search and seizure reasonable under the totality
of the circumstances.
COUNSEL
Thomas P. Sleisenger (argued), Law Offices of Thomas P.
Sleisenger, Los Angeles, California, for Defendant-Appellant.
Cheryl L. O’Connor (argued) and Kevin S. Rosenberg,
Assistant United States Attorneys; Robert E. Dugdale, Chief,
Criminal Division; and André Birotte Jr., United States
Attorney, Office of the United States Attorney, Los Angeles,
California, for Plaintiff-Appellee.
ORDER
Appellee’s January 22, 2015 Petition for Panel Rehearing
is GRANTED. Accordingly, the Opinion and Partial Dissent
filed on August 25, 2014 are withdrawn, and a new opinion
and partial dissent are filed. See Fed. R. App. P. 40(a)(4)(A).
4 UNITED STATES V. FOWLKES
OPINION
WARDLAW, Circuit Judge:
Mark Tyrell Fowlkes appeals his conviction for drug
distribution and possession with intent to distribute. Fowlkes
raises a number of claims on appeal, but only one has merit:
that the forcible removal of an unidentified item of unknown
size from Fowlkes’ rectum by officers without medical
training or a warrant violated his Fourth Amendment rights.
Because we conclude that the evidence obtained from this
brutal and physically invasive seizure should have been
suppressed, we vacate Fowlkes’ conviction in part, vacate his
sentence, and remand to the district court.
I.
A.
Drug Enforcement Administration (“DEA”) agents and
Long Beach Police Department (“LBPD”) officers obtained
warrants for wiretaps on two phones (Target Telephones #1
and #2) in July and August of 2006. On September 3, 2006,
officers intercepted communications pursuant to the wiretap,
which led them to conclude that Fowlkes was arranging a
drug deal. Based on that information, LBPD officers placed
Fowlkes under surveillance and witnessed what appeared to
be a drug deal between Fowlkes and two other individuals,
Shaun Lee and Elaine Watson. Lee walked away from the
deal, but officers stopped him and found he possessed 0.61
grams of crack cocaine.
On September 4, 2006, the LBPD and DEA intercepted
several more phone calls, leading them to conclude that
UNITED STATES V. FOWLKES 5
Fowlkes was planning to destroy or remove contraband from
his apartment. Within an hour of the last phone call, officers
arrived at the apartment. Upon entry, they saw Fowlkes and
another individual, Latoya Marshall, as well as a 9mm
handgun. The officers handcuffed Fowlkes and Marshall and
conducted a protective sweep of the apartment. After
securing a warrant, officers searched the apartment and found
approximately 2.6 grams of crack cocaine, a digital scale, and
the loaded 9mm handgun. Fowlkes was subsequently
released from police custody.
On September 13, 2006, after witnessing what appeared
to be a narcotics transaction between Fowlkes and an
unidentified man, LBPD officers requested that a marked car
execute a pretextual traffic stop. Pulled over for an expired
registration, Fowlkes and his passenger were asked to exit the
vehicle. Fowlkes denied consent to search the car. Asserting
that they saw marijuana in the open side panel of the car and
a substance they believed was cocaine base on the front seats
of the car, officers arrested Fowlkes for felony drug
possession and transported him to the Long Beach City Jail
for processing.
At intake, the officers strip searched Fowlkes in the jail’s
strip search room, a five by six enclosure with three concrete
walls and an opening in the fourth wall. Five officers
observed the strip search, including Officer Jeffrey Harris and
Sergeant Michael Gibbs, who brought along his taser, gloves
and “assistance” in the form of additional officers because he
thought Fowlkes might have drugs. The officers instructed
Fowlkes to remove his clothing and face the far wall as they
watched him. Fowlkes was instructed to bend over, spread
his buttocks, and cough, but according to Sergeant Gibbs,
Fowlkes instead moved his hand toward his right buttock.
6 UNITED STATES V. FOWLKES
Instructed to repeat the procedure, Fowlkes made a quick
movement to his buttocks area with his hand and appeared to
Gibbs “to be forcing or forcibly pushing an item inward.”
Officer Harris testified that he believed it was possible
Fowlkes was attempting to push something into his anus.
However, he did not actually see any object Fowlkes could
have been pushing, and he acknowledged that there was no
other way for Fowlkes to comply with the directive other than
by reaching back and putting his fingers towards his anus.
For his part, Sergeant Gibbs testified that he saw an object
protruding from Fowlkes’ anus and that he believed Fowlkes
appeared “to be forcing or moving an object or further
secreting an object” inside his rectum to destroy evidence.
To prevent that, Gibbs “delivered a drive stun tase to the
center portion of the defendant’s back.” Fowlkes’ arms went
straight into the air, and the officers handcuffed him.
Fowlkes began to “squirm[]” and “struggl[e],” and the
officers “lean[ed] him against the wall, . . . brace[d] his body
up against the wall” so that “[h]e end[ed] up being bent over.”
With Fowlkes in this position, the officers testified that they
could see what appeared to be a plastic bag partially
protruding from Fowlkes’ rectum.
Officers continued to “brac[e] [Fowlkes] up against the
wall” to prevent him from resisting. At this point, Fowlkes
was handcuffed and incapacitated by five male officers.
Fowlkes had no ability to destroy or further secrete what was
in the plastic bag. Neither Sergeant Gibbs nor the other
officers could tell what, if anything, the plastic bag contained
while it remained in Fowlkes’ rectum. Nor could they
determine how large it was or how far it extended into
Fowlkes’ body. Despite this, and despite the fact that none of
the officers had any relevant medical training, the officers did
UNITED STATES V. FOWLKES 7
not attempt to obtain a warrant, summon medical personnel,
move Fowlkes to a sanitary location, or allow Fowlkes to
pass the suspected contraband naturally. Instead, Sergeant
Gibbs forcibly “retrieved” the bag. He put on the protective
gloves he had brought along to the “search” and pulled the
object from Fowlkes’ rectum without the assistance of
anesthesia, lubricant, or medical dilation. Sergeant Gibbs
testified that he was able to remove the object using his
thumb and index finger without penetrating Fowlkes’ anal
cavity. Officer Harris testified that the removal itself was a
difficult, abrasive procedure:
I watched the entire process of him removing
it in his fingers. [The object] went from a
dime size to a penny size to a nickel size to a
quarter size to somewhat near a golf ball size
as it was taken out.
Officer Harris further testified that he could “see blood and
what looked to be feces” on the plastic bag after it had been
removed. Photographs of the object that are included in the
appellate record confirm that the object was covered in blood.
B.
On June 6, 2008, the government filed an indictment
charging Fowlkes with three counts of drug possession and
distribution and two related firearm counts. Before trial,
Fowlkes moved to suppress all of the evidence obtained in the
case pursuant to the wiretap, the evidence seized from the
searches of his apartment and car, and the drugs found within
his person during the body cavity search at the jail. The
district court denied each of these motions.
8 UNITED STATES V. FOWLKES
On July 8, 2008, a jury trial commenced, but it ended two
days later when Fowlkes requested a mistrial after Federal
Marshals arrested a key defense witness outside of the
courtroom doors, but within earshot and possible view of the
jury. Fowlkes subsequently filed a motion to dismiss the
indictments on double jeopardy or due process grounds
because the government’s misconduct had goaded him into
requesting the mistrial. On September 17, 2008, the district
court denied the motion.
On November 4, 2008, Fowlkes’ retrial began, and on
November 20, the jury found Fowlkes guilty of the three
drug-related counts. The court sentenced Fowlkes to time
served (forty-six months) and supervised release for eight
years.
Fowlkes claims the district court erred by denying his
motions to: (1) suppress the evidence obtained through the
wiretaps because the application for the warrant was
technically deficient, and, at the least, the district court should
have held a Franks hearing; (2) suppress evidence seized
from his apartment because the officers’ warrantless entry
was unlawful and the warrant authorizing the search was
unsupported by probable cause; (3) suppress the cocaine base
and marijuana seized from his car because the initial stop and
subsequent search of his car was unlawful; (4) suppress the
evidence extracted from his rectum at the jail because this
evidence was retrieved in an unreasonable manner, in
violation of his Fourth Amendment rights; (5) dismiss the
indictment on a claim of evidence tampering;1 and (6) dismiss
1
Because the evidence found within Fowlkes’ body was seized in an
unreasonable manner and thus should have been suppressed, we need not
UNITED STATES V. FOWLKES 9
the indictment on double jeopardy grounds following a
mistrial.
We affirm the district court’s rulings except the denial of
Fowlkes’ motion to suppress the cocaine seized from within
his body at the Long Beach City Jail. We therefore reverse
the conviction on the count predicated on that evidence.
II.
“Prison walls do not form a barrier separating prison
inmates from the protections of the Constitution.” Turner v.
Safley, 482 U.S. 78, 84 (1987). We review de novo a district
court’s denial of a motion to suppress evidence, and we
review the underlying factual issues for clear error. United
States v. Fernandez, 388 F.3d 1199, 1234 (9th Cir. 2004).
The district court concluded that a warrant was not required
for the drugs forcibly removed from Fowlkes’ rectum,
reasoning that the officers conducted a visual search rather
than a physical one. While it may be true that the search was
purely visual, the seizure of contraband discovered during
that search was clearly physical. Based on the particular
circumstances of the seizure at issue, we conclude that the
officers acted unreasonably and the evidence they seized
therefore should have been suppressed.
A.
The LBPD’s warrantless visual strip search of Fowlkes
during the jail intake process was not unreasonable. The
government has a strong interest in preventing contraband
resolve Fowlkes’ other allegations of discovery violations or chain of
custody issues pertaining to that evidence.
10 UNITED STATES V. FOWLKES
from entering its prisons and jails, and in the jail intake
process, we have recognized that “adherence to the
warrant-and-probable cause requirement would be
impracticable.” Friedman v. Boucher, 580 F.3d 847, 853,
858 (9th Cir. 2009) (internal quotation marks omitted).
Specifically, in Bull v. City and County of San Francisco, we
addressed whether suspicionless visual body cavity searches
may be performed without a warrant during the jail intake
process. 595 F.3d 964, 968–69 (9th Cir. 2010) (en banc).
Answering this question in the affirmative, we relied
primarily on two factors to conclude that it would be
impracticable for the government to obtain a warrant prior to
each individual search. First, we looked to the sheer number
of individuals the San Francisco Sheriff’s Department intakes
annually: “50,000 individuals are booked and processed each
year.” Id. at 966. Given these large numbers, it would be
difficult, if not impossible, for the San Francisco Sheriff’s
Department to obtain a warrant prior to performing every
individual visual cavity search. Second, we observed that
visual cavity searches are often suspicionless; rather than
justified by probable cause, they are necessary by virtue of
the jail’s security concerns. See id. at 966–67.
Similarly, in Florence v. Board of Chosen Freeholders,
132 S. Ct. 1510 (2012), the Supreme Court upheld a blanket
strip search and visual body cavity search for arrestees
entering detention facilities based on the same
impracticability rationale that we applied in Bull. The Court
considered, for example, that the Essex County Correctional
Facility intakes more than 25,000 inmates each year, id. at
1514, and that it would be very difficult practically to identify
or sort those detainees who should be searched because they
are more likely to be carrying contraband from those who
should not be searched, id. at 1520–22. The Court also
UNITED STATES V. FOWLKES 11
explicitly noted: “There are no allegations that the detainees
here were touched in any way as part of the searches.” Id. at
1515.
By contrast, searches that require intrusion into a person’s
body implicate greater constitutional concerns. See Bouse v.
Bussey, 573 F.2d 548, 550 (9th Cir. 1977) (per curiam)
(quoting Schmerber v. California, 384 U.S. 757, 770 (1966)
(“Search warrants are ordinarily required for searches of
dwellings, and, absent an emergency, no less could be
required where intrusions into the human body are
concerned.”)). An intrusion into the human body implicates
an individual’s “most personal and deep-rooted expectations
of privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985).
Therefore, while visual cavity searches that do not require
physical entry into a prisoner’s body are generally
permissible without a warrant during the jail intake process,
physical cavity searches generally are not. See Schmerber,
384 U.S. at 769–70 (“The interests in human dignity and
privacy which the Fourth Amendment protects forbid any
such intrusions on the mere chance that desired evidence
might be obtained.”).
Here, the LBPD officers went beyond the visual cavity
search found reasonable in Bull. They seized an unidentified
object of unknown size from Fowlkes’ rectum, subjecting
him to a physically invasive, painful experience and thereby
implicating his “most personal and deep-rooted expectations
of privacy.” Lee, 470 U.S. at 760. At the same time,
however, the officers, while acting without a warrant and
engaging in physical contact, were not acting “on the mere
chance that desired evidence might be obtained.” Schmerber,
384 U.S. at 770. They had reason to believe desired evidence
was located inside of Fowlkes’ body because Sergeant Gibbs
12 UNITED STATES V. FOWLKES
could see a portion of an object which he thought Fowlkes
was attempting to further secrete. Thus, they conducted a
warrantless physical seizure of contraband they actually
observed during the course of a permissible warrantless visual
search.
B.
Having properly framed the officers’ conduct as a
warrantless, physically invasive seizure of actual (not merely
suspected) contraband, we must determine whether that
conduct was unreasonable under the Fourth Amendment. We
conclude that it was.
In reaching this conclusion, we need not and do not
determine whether a warrant is required to seize evidence
discovered during a visual strip search from an inmate’s body
because the officers’ conduct here was unreasonable for other
reasons. As the Supreme Court recently reiterated, “[e]ven if
a warrant is not required, a search is not beyond Fourth
Amendment scrutiny; for it must be reasonable in its scope
and manner of execution.” Maryland v. King, 133 S. Ct.
1958, 1970 (2013); see also Bull, 595 F.3d at 967 n.2 (“There
is no doubt . . . that ‘on occasion a security guard may
conduct the search in an abusive fashion, and [s]uch an abuse
cannot be condoned.’” (quoting Bell v. Wolfish, 441 U.S. 520,
560 (1979))). We have applied the same principle in
analyzing the constitutionality of a seizure in a nearly
identical context involving extraction of evidence from a
suspect’s rectum. See United States v. Cameron, 538 F.2d
254, 258 (9th Cir. 1976) (“[A] clear indication that the
suspect is concealing contraband does not authorize
government officials to resort to any and all means at their
disposal to retrieve it.”); see also United States v. Edwards,
UNITED STATES V. FOWLKES 13
666 F.3d 877, 884 (4th Cir. 2011) (“The manner in which
contraband is removed from a suspect during a sexually
intrusive search, no less than the manner in which the
contraband initially is discovered, must be considered in
determining under the Bell analysis whether the search was
reasonable.”).2
In determining whether an individual search or seizure is
reasonable, we evaluate the “totality of [the] circumstances,”
Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013), including
“[1] the scope of the particular intrusion, [2] the manner of its
conduct, and [3] the justification for initiating it.” Cameron,
538 F.2d at 258 (internal quotation marks omitted). We
address these three considerations in turn.
The scope of the seizure intruded beyond the surface of
Fowlkes’ body, interfering with his bodily integrity. As the
2
Whether the officers’ conduct here is labeled a “search” or a “seizure”
is immaterial to the legal analysis. We use the term “seizure” because
Sergeant Gibbs saw a plastic bag protruding from Fowlkes’ anus and had
probable cause to believe it was contraband. Thus, there was no need for
a “search” as that word is commonly understood; all that remained was to
seize evidence that had already been found. We have in some opinions,
including Cameron, referred to this conduct as a search. Semantics aside,
this case is like Cameron because the officers’ actions are challenged not
because the officers lacked sufficient certainty that evidence was located
inside Fowlkes’ body, but instead because, even assuming sufficient
certainty, the manner of removing the evidence was unreasonable. Where
the probability of finding evidence in the place to be searched is at issue,
different Fourth Amendment concerns and protections are implicated (for
example, a warrant serves to ensure that sufficient cause exists to search
a particular location). But even when those concerns are not present, our
decision in Cameron clearly stands for the proposition that the manner of
extraction—whether termed a search or a seizure—is subject to a
reasonableness requirement under the Fourth Amendment.
14 UNITED STATES V. FOWLKES
Supreme Court explained in Schmerber, “[t]he overriding
function of the Fourth Amendment is to protect personal
privacy and dignity against unwarranted intrusion by the
State.” 384 U.S. at 767. The Court has subsequently
described the interest in bodily integrity as implicating the
“most personal and deep-rooted expectations of privacy.”
Lee, 470 U.S. at 760 (holding a compelled surgical intrusion
to remove a bullet, fired by a robbery victim, from the chest
of the suspect unreasonable under the Fourth Amendment);
see also Cameron, 538 F.2d at 258 (“[T]he fourth amendment
imposes a stricter standard on the ‘means and procedures’ of
a body search than does the due process clause.”). And here,
the seizure interfered with a particularly personal, private area
of Fowlkes’ anatomy.
Likewise, the manner in which this seizure was conducted
supports the conclusion that it was unreasonable. In making
this determination, we consider a variety of factors including
hygiene, medical training, emotional and physical trauma,
and the availability of alternative methods for conducting the
search. See Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir.
1988), abrogated on other grounds by Graham v. Connor,
490 U.S. 386 (1989); see also Thompson v. Souza, 111 F.3d
694, 700–01 (9th Cir. 1997) (considering hygiene and
medical training of officers in evaluating the reasonableness
of the search).
As an initial matter, the officers violated the jail’s own
written policy for body cavity searches by failing to remove
the evidence “under sanitary conditions” and by not using a
“Physician, Nurse Practitioner, Registered Nurse, Licensed
Vocational Nurse, or Emergency Medical Technician.”
There is no evidence that any of the officers had medical or
any other relevant training on how to safely remove
UNITED STATES V. FOWLKES 15
suspicious objects from an arrestee’s rectum or how to
evaluate whether such removal could cause serious physical
harm or death.3 The manner of this seizure is the very sort
the Supreme Court explicitly distinguished from the blood
test it found “performed in a reasonable manner” in
Schmerber:
We are thus not presented with the serious
questions which would arise if a search
involving use of a medical technique, even of
the most rudimentary sort, were made by
other than medical personnel or in other than
a medical environment—for example, if it
were administered by police in the privacy of
the stationhouse. To tolerate searches under
these conditions might be to invite an
unjustified element of personal risk of
infection and pain.
384 U.S. at 771–72. As the Supreme Court accurately
predicted forty-years ago, tolerating such invasive conduct by
non-medical personnel invites an unjustified element of
personal risk—a risk that Fowlkes experienced first-hand and
one that is constitutionally intolerable.4
3
The dissent argues that, in the absence of medical testimony regarding
the dangers presented by the seizure here, we can only speculate about
medical necessity. Dissent at 38, n.8. While there is no testimony on the
issue, however, LBPD policy suggests that when physical intrusion into
a body cavity is necessary, medical personnel, rather than LBPD officers,
should perform the task.
4
As the dissent correctly notes, we have applied Schmerber to both
visual and physical body cavity searches. See Fuller v. M.G. Jewelry,
950 F.2d 1437, 1449 (9th Cir. 1991). This does not mean, however, that
16 UNITED STATES V. FOWLKES
In Cameron, then-Judge Anthony M. Kennedy explained
that Cameron, like Fowlkes, was in a humiliating and
dangerous situation: “[T]he person accused of concealing
contraband within his body is faced with the real prospect that
the most intimate portions of his anatomy will be invaded and
that he will suffer resulting pain or even physical harm.”
538 F.2d at 258. We also recognized that Cameron, like
Fowlkes, was particularly vulnerable and totally alone: “[T]he
suspect usually faces this ordeal without assistance,
surrounded by persons who administer the procedure on
behalf of the government and thus appear to him to have as
their overriding motive the obtaining of evidence to convict,
and not his personal well being.” Id.
After detailing the unique dangers, fears, and concerns
faced by detainees like Fowlkes, we held that the process for
removing suspected contraband from a detainee’s body, “if it
is to comport with the reasonableness standard of the fourth
amendment, must be conducted with regard for the subject’s
privacy and be designed to minimize emotional and physical
trauma.” Id. We further clarified that “[i]n a situation thus
laden with the potential for fear and anxiety, a reasonable
search will include, beyond the usual procedural
requirements, reasonable steps to mitigate the anxiety,
discomfort, and humiliation that the suspect may suffer.” Id.
Here, the LBPD officers did not take adequate steps to
minimize Fowlkes’ physical trauma. They did not, for
example, use lubrication or ensure that the removal was
conducted under sanitary conditions; they did not seek the
visual searches and physical searches and seizures are identical with
regard to whether they “might . . . invite an unjustified element of personal
risk of infection and pain.” Schmerber, 384 U.S. at 772.
UNITED STATES V. FOWLKES 17
guidance or assistance of medical personnel; and they did not
assure themselves that removing the object from Fowlkes’
rectum was safe—indeed they did not know the size, shape,
or substance of the object. Further, they did nothing to
mitigate his anxiety or emotional trauma. They did not, for
example, offer him options for removing the contraband or
secure his compliance; they did not (and could not) assure
him that the removal was safe or being conducted by a trained
professional; and they did not (and could not) assure him that
the procedure was legal and in keeping with LBPD policy
rather than an arbitrary show of force.
Far from taking steps to minimize physical harm and
mitigate anxiety, as required by Cameron, the officers’
actions potentially increased the physical and emotional
trauma Fowlkes suffered. Despite undisputed testimony by
the officers themselves that Fowlkes posed no threat, much
less an immediate threat to himself or the officers, and was
not a flight risk (he was naked, bent over, and in handcuffs at
the time), Sergeant Gibbs used a stun-gun taser to shock
Fowlkes in an apparent effort to subdue him. Cf. Bryan v.
MacPherson, 630 F.3d 805, 832 (9th Cir. 2010); Mattos v.
Agarano, 661 F.3d 433, 446 (9th Cir. 2011) (en banc)
(holding a finder of fact could find the use of a drive stun
taser against a person posing no immediate threat
unreasonable and unconstitutionally excessive). Once
Fowlkes was subdued, the officers proceeded with the
degrading and dangerous removal of the as yet unidentified
cocaine from Fowlkes’ rectum.5
5
The dissent suggests that it is immaterial that the materials lodged
inside of Fowlkes’ body were unidentified, because they were indisputably
contraband. See Dissent at 34–35. But knowing that an object is
contraband is not the same as knowing the object can be safely removed.
18 UNITED STATES V. FOWLKES
These actions stand in stark contrast to the conduct found
reasonable in Schmerber and are much more like the conduct
found unreasonable by the Fourth Circuit in Edwards. In
Schmerber, the Court explicitly considered that the blood
draw in question “involves virtually no risk, trauma, or pain,”
and that it “was performed in a reasonable manner” because
“blood was taken by a physician in a hospital environment
according to accepted medical practices.” 384 U.S. at 771.
In Edwards, by contrast, the court determined that the manner
in which an officer removed a plastic bag that an arrestee had
tied around his penis was unreasonable. 666 F.3d at 884.
The officer put on gloves and then used a knife to cut the bag
off the suspect’s penis. The Fourth Circuit concluded that the
manner of the removal “posed a significant and an
unnecessary risk of injury to Edwards, transgressing well-
settled standards of reasonableness. The fortuity that
Edwards was not injured in the course of this action does not
substantiate its safety.” Id. at 885.6
As in Edwards and Cameron, the officers here should
have done more to “allay the anxieties and concerns of the
suspect,” and should have considered “less intrusive means
The officers’ lack of information about the object—its precise size, shape,
and texture; whether the surrounding plastic was abraded; whether the
inside of Fowlkes’ rectal cavity was injured; and whether the substance
inside could potentially poison him—highlights the heightened “personal
risk” inherent in the physical search. See Schmerber, 384 U.S. at 772.
That Fowlkes may have been acting unlawfully by smuggling an item into
jail does not affect this calculus.
6
To be clear, our holding does not preclude touching of the defendant
or seizure of contraband from a suspect’s rectum in all cases. As in
Edwards, we hold only that the particular manner of seizing evidence
employed by the LBPD in this case was unreasonable.
UNITED STATES V. FOWLKES 19
of obtaining the evidence.” Cameron, 538 F.2d at 258. There
are any number of alternative methods the officers could have
considered employing to recover this evidence. This is not to
require a least-restrictive alternative test as determinative of
reasonableness, but it would have been more reasonable
simply to comply with the jail’s written policy and summon
medical personnel. And there was ample opportunity to do
so. Before strip searching Fowlkes, Sergeant Gibbs was
informed by another officer that Fowlkes had “put a baggie
down his pants.” Rather than readying medical personnel or
at least determining whether medical personnel were
available to facilitate compliance with LBPD policy, Gibbs
instead retrieved a taser from his vehicle and put on latex
gloves.7 Then, after observing a baggie protruding from
Fowlkes’ rectum, without securing judicial authorization,
Fowlkes’ compliance, or medical personnel, and without
assurances that doing so was safe or could be done without
causing severe pain, Gibbs simply extracted the unidentified
object.
Moreover, although we do not hold that a warrant was
required, we must “consider that the government failed to
obtain a warrant” in “evaluating the reasonableness of the
manner in which the search [or seizure] was conducted.”
Cameron, 538 F.2d at 258. “In addition to certifying that a
search [or seizure] is reasonably justified a warrant can also
assure that it is conducted in a reasonable manner.” Id. at
259. A warrant can, for example, dispel a suspect’s concerns
that he is being subject to illegal, arbitrary procedures. Id.
The warrant also clarifies the means of seizure the
7
These facts show that Gibbs had time to take additional precautions,
and thus they are relevant in assessing the objective reasonableness of
Gibbs’ conduct.
20 UNITED STATES V. FOWLKES
government may employ, which may in turn secure the
cooperation of the suspect, reducing the risk of physical
trauma attendant with removing evidence from a suspect’s
body. Id. Thus, the officers’ failure to secure a warrant is yet
another way in which they did not mitigate the risk of
physical and emotional trauma associated with the seizure of
evidence from Fowlkes’ rectum.
Just as the scope of the intrusion into Fowlkes’ privacy
and the manner in which the seizure was conducted suggest
that the officers acted unreasonably, the justifications—or
lack thereof—for seizing the evidence in the chosen manner
reinforce our conclusion that the officers acted unreasonably.
See Cameron, 538 F.2d at 258. As in Cameron, where
officers were all but certain the suspect had secreted drugs in
his rectum, here “there was no emergency requiring instant
seizure of the evidence.” Id. at 259. The government is
correct that a warrantless search may be conducted if an
officer reasonably believes that evidence will be destroyed if
he does not act quickly, so long as the search is conducted in
a reasonable manner. See, e.g., Schmerber, 384 U.S. at
770–71. But the record is devoid of any evidence from which
the officers reasonably might have inferred that evidence
would be destroyed if they took the time to secure a warrant
and summon medical personnel. When the baggie was
removed, Fowlkes was handcuffed, tased, and surrounded by
five police officers. He was under arrest and in the custody
of the LBPD. Fowlkes, like the evidence lodged inside his
rectum, was not going anywhere.8
8
The dissent contends that Gibbs’ testimony constitutes evidence from
which officers might reasonably have inferred that the evidence protruding
from Fowlkes’ anus would be destroyed if they did not seize it. Dissent
at 35. Gibbs’ testimony, however, only proves that he subjectively
UNITED STATES V. FOWLKES 21
Similarly, the record contains no evidence that a medical
emergency existed. See Cameron, 538 F.2d at 259 & n.8
(“There were no facts on the record indicating that failure to
remove the heroin would constitute a danger to the
suspect. . . . [O]nly a showing of the greatest imminent harm
would justify intrusive action for the purpose of removal of
the drug.”); see also Johnson v. United States, 333 U.S. 10,
15 (1948) (“No suspect was fleeing or likely to take flight.”).
Thus, there was time to take steps—potentially including,
inter alia, securing medical personnel, a warrant, or both—to
mitigate the risk that the seizure would cause physical and
emotional trauma.
Further, the practicability concerns underlying Bull and
Florence are absent here. While we have approved
suspicionless visual strip searches in the prison intake context
given the government’s need to keep contraband out of
prisons and the sheer volume of incoming inmates, the
government does not contend that it is necessary to seize
evidence from the body cavities of every person booked into
the Long Beach City jail. In Bull, for example, over a sixty
month period, from April 2000 to April 2005, visual body
cavity searches revealed only seventy-three cases of illegal
drugs or drug paraphernalia hidden in arrestees’ body
cavities—a rate of approximately fifteen cases a year.
595 F.3d at 969. And, in Bell, the Supreme Court noted “only
one instance” where an inmate was discovered attempting to
smuggle contraband into the institution in this manner.
441 U.S. at 558.
believed evidence might be destroyed if he did not seize the baggie
quickly; the record remains devoid of evidence suggesting that Gibbs’
subjective belief was objectively reasonable.
22 UNITED STATES V. FOWLKES
The relatively small numbers of inmates concealing
contraband in their body cavities undercuts any argument that
it would be impractical to take additional “steps to mitigate
the anxiety, discomfort, and humiliation that . . . suspect[s]
[like Fowlkes] may suffer.” Cameron, 538 F.2d at 258. One
step in particular, obtaining a warrant, would place very little
burden on the government given these small numbers and
technological advancements that facilitate nearly immediate
access to warrants.9 See id. at 259 (“It should not have been
difficult to obtain a warrant . . . .”). That LBPD policy
requires medical personnel to perform cavity searches under
sanitary conditions also suggests that there were no practical
obstacles to taking these additional steps to mitigate the
potential danger to prisoners like Fowlkes.
In the end, the LBPD conducted a warrantless forcible
seizure of an unidentified item of unknown size from
Fowlkes’ rectum by non-medical personnel who (1) did
nothing to assure that the removal was safe and performed
under sanitary conditions; (2) were aided by the use of a taser
but not by lubricant; (3) seized the object in the absence of
exigent circumstances; and (4) acted in violation of LBPD
policy. No single factor is dispositive, but under the totality
of the circumstances presented here, we conclude that the
manner of this seizure was unreasonable. See Cameron,
9
“[A]dvances in the 47 years since Schmerber was decided . . . allow for
the more expeditious processing of warrant applications, particularly in
contexts . . . where the evidence offered to establish probable cause is
simple. The Federal Rules of Criminal Procedure were amended in 1977
to permit federal magistrate judges to issue a warrant based on sworn
testimony communicated by telephone. . . . And in addition to technology-
based developments, jurisdictions have found other ways to streamline the
warrant process, such as by using standard-form warrant applications
. . . .” McNeely, 133 S. Ct. at 1561–62.
UNITED STATES V. FOWLKES 23
538 F.2d at 258–60. The district court therefore erred in
admitting the unreasonably seized evidence at Fowlkes’ trial.
C.
Finally, numerous jurisdictions have concluded in similar
circumstances that such warrantless conduct violates the
Fourth Amendment. See, e.g., Meeks v. City of Minneapolis,
822 F. Supp. 2d 919 (D. Minn. 2011) (granting summary
judgment for plaintiff in a § 1983 suit on the claim that
officers’ conduct in pulling an item protruding from
defendant’s anus while he was pushed up against a squad car
violated his Fourth Amendment rights); United States v.
Broadway, 580 F. Supp. 2d 1179, 1185 (D. Colo. 2008)
(suggesting that “actual touching, penetration, attempted
touching, or attempted penetration of Defendant’s anus or
anal cavity” might constitute unreasonable scope or manner
of search); State v. Barnes, 215 Ariz. 279, 281 (Ariz. Ct. App.
2007) (“[A]n officer must secure a warrant to remove items
partially protruding from an arrestee’s rectum.”); State v.
Robinson, 937 A.2d 717, 728–29 (Conn. App. Ct. 2008)
(noting that, under Connecticut law, police must procure a
warrant before obtaining contraband from a defendant’s anus,
but finding that the search at issue was not a body cavity
search because “the bag was wholly outside of the
defendant’s rectum”); People v. Hall, 10 N.Y.3d 303, 311
(2008) (“[T]he removal of an object protruding from a body
cavity, regardless of whether any insertion into the body
cavity is necessary, is subject to the Schmerber rule and
cannot be accomplished without a warrant unless exigent
circumstances reasonably prevent the police from seeking
prior judicial authorization.”); Hughes v. Commonwealth,
524 S.E.2d 155, 162 (Va. Ct. App. 2000) (holding that a
search in which officer asked suspect to bend over, inspected
24 UNITED STATES V. FOWLKES
his anus, instructed him to cough, then manually removed
plastic bag protruding from suspect’s anus violated suspect’s
Fourth Amendment rights).
This persuasive authority reinforces our conclusion that
the seizure of evidence from Fowlkes’ rectum, under the
totality of the circumstances, violated his Fourth Amendment
rights, and that the district court therefore should have
suppressed the evidence.10
III.
Although the district court erred in failing to suppress the
evidence seized from within Fowlkes’ body, it properly
denied Fowlkes’ remaining motions.
A.
Fowlkes asserts that an apparent discrepancy between the
person who prepared the government’s application for the
wiretap and the person who signed it renders the interception
of the wire communications “unlawful” and mandates
suppression of any evidence obtained as a result of that
wiretap. At a minimum, he claims the district court erred in
denying him a Franks11 hearing because the affidavit in
10
The Government has not argued that the instant Fourth Amendment
violation warrants a remedy other than suppression, so we do not consider
alternative sanctions for the officers’ conduct.
11
“[W]here the defendant makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the
UNITED STATES V. FOWLKES 25
support of the wiretap contained material misrepresentations
and omissions. Because any technical deficiencies in the
wiretap application do not warrant suppression and because
Fowlkes’ Franks claim is without merit, the district court did
not err in denying the motion to suppress.
Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, 18 U.S.C. §§ 2510–2520, governs wiretapping
by law enforcement. United States v. Garcia-Villalba,
585 F.3d 1223, 1227 (9th Cir. 2009). Evidence obtained from
a wiretap must be suppressed if “the communication was
unlawfully intercepted.” 18 U.S.C. § 2518(10)(a)(i). In
United States v. Chavez, the Supreme Court held that
establishing a rule in which “every failure to comply fully
with any requirement provided in Title III would render the
interception of wire or oral communications unlawful”
“would be at odds with the statute itself.” 416 U.S. 562,
574–75 (1974) (internal quotation marks omitted). Rather,
“suppression is required only for a failure to satisfy any of
those statutory requirements that directly and substantially
implement the congressional intention to limit the use of
intercept procedures to those situations clearly calling for the
employment of this extraordinary investigative device.”
United States v. Donovon, 429 U.S. 413, 433–34 (1977)
(internal quotation marks omitted).
Here, any technical deficiency caused by one AUSA
signing for another does not constitute a failure to satisfy
such a statutory requirement. The affidavit prepared by
Agent Jonathan Koeppen in support of the wiretap application
satisfies the statutory requirements of 18 U.S.C.
Fourth Amendment requires that a hearing be held at the defendant’s
request.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
26 UNITED STATES V. FOWLKES
§ 2518(1)—it was prepared in writing by an investigative or
law enforcement officer, it stated Koeppen’s authority to
make an application, it provided a full and complete
statement of the facts and circumstances relied upon, and it
was signed under oath. We have previously implied that an
affidavit attached to a wiretap application can fulfill the
requirements of 18 U.S.C. § 2518(1) in lieu of the application
itself. See Garcia-Villalba, 585 F.3d 1223, 1227–28 (9th Cir.
2009) (evaluating whether the affidavit contained the full and
complete statement as to whether other investigative
procedures had been tried and failed as required by 18 U.S.C.
§ 2518(1)(c), which governs the requirements of a wiretap
application); United States v. Fernandez, 388 F.3d 1199,
1234–37 (9th Cir. 2004).
The only statutory requirement that Koeppen’s affidavit
failed to meet was to identify the officer authorizing the
application, as required under 18 U.S.C. § 2518(1)(a). The
Supreme Court, however, has held that misidentification of
the authorizing officer in the wiretap application is not a
technical deficiency that requires suppression. Chavez,
416 U.S. at 575. So too here. Exhibit A attached to the
wiretap application did provide authorization for the wiretap,
and the singular failure of Agent Koeppen’s affidavit to
identify the authorizing official does not warrant suppression.
The district court did not err in denying a Franks hearing
because Fowlkes has not shown that “the allegedly false
statement[s] [were] necessary to the finding of probable
cause.” Franks, 438 U.S. at 155–56. Even if we accept as
true all of Fowlkes’ allegations regarding misstatements and
omissions in Koeppen’s affidavit, Fowlkes still must “show
that the affidavit purged of those falsities and supplemented
by the omissions would not be sufficient to support a finding
UNITED STATES V. FOWLKES 27
of probable cause.” United States v. Stanert, 762 F.2d 775,
782 (9th Cir. 1985) (citing Franks, 438 U.S. at 171–72). This
he cannot do. The affidavit contains many unchallenged
factual allegations linking the phones and implicating Target
Telephone #2 in the service of drug trafficking. These
include numerous calls between the phones, shared subscriber
information, high call volume, and toll information
connecting one phone to suspected narcotics traffickers.
B.
Fowlkes also asserts that the district court erred in
denying his motion to suppress the 2.6 grams of cocaine
seized from his apartment because the officers’ warrantless
entry was unlawful and the warrant authorizing the search
was unsupported by probable cause. As the district court
correctly found, however, probable cause coupled with
exigent circumstances justified the officers’ warrantless entry,
and the warrant itself was supported by probable cause. See
United States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir.
2002) (“Even when exigent circumstances exist, police
officers must have probable cause to support a warrantless
entry into a home.”).
Probable cause justifying a warrantless entry requires the
government to show a “fair probability that contraband or
evidence of a crime” was in the residence. Illinois v. Gates,
462 U.S. 213, 238 (1983); see Bailey v. Newland, 263 F.3d
1022, 1032 (9th Cir. 2001). Examining the totality of the
circumstances known to the officers at the time, Alaimalo,
313 F.3d at 1193, the officers here had probable cause
sufficient to believe there was contraband at Fowlkes’ Cedar
Avenue apartment. Officers intercepted a voicemail
suggesting that Fowlkes paid rent for the apartment. They
28 UNITED STATES V. FOWLKES
also intercepted calls in which Fowlkes mentioned
undercover officers and referenced “get[ting] everything out
of” the premises and “trash[ing]” his phone because he’s “not
gonna give them shit to put together on me.” On this basis,
the officers reasonably concluded that drugs were present at
Fowlkes’ Cedar Avenue apartment. See United States v.
Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (“In the
case of drug dealers, evidence is likely to be found where the
dealers live.”).
Exigent circumstances include “those circumstances that
would cause a reasonable person to believe that entry . . . was
necessary to prevent . . . the destruction of relevant evidence.”
United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987)
(quoting United States v. McConney, 728 F.2d 1195, 1199
(9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984)). The
September 4 calls further support a finding of exigent
circumstances. During those calls, Fowlkes stated, “It’s a 911
. . . . The homie said the police is outside in the back . . . . I
was gonna tell you to take that shit over to Keisha’s house,”
and he instructed the person on the other end of the line to
“move that computer and the rest of all that you know, just
get everything out of here . . . .” As the district court
correctly found, those intercepted communications, viewed as
they would reasonably appear to a prudent law enforcement
officer, could have led to the conclusion that it was necessary
to enter and secure the Cedar Avenue apartment to prevent
Fowlkes from destroying contraband. The one-hour lapse
between the last intercepted call and officers’ entry into the
apartment did not undermine the exigency of the situation. In
United States v. Lindsey, 877 F.2d 777, 782–83 (9th Cir.
1989), we held that a delay of the same duration did not
negate the exigency because the delay was caused by officers
awaiting reinforcements. Similarly, here the delay occurred
UNITED STATES V. FOWLKES 29
because of the time it took officers to respond and then
“coordinate[] their efforts” for entry.
Finally, the magistrate judge did not clearly err in finding
probable cause sufficient to support the search warrant for the
apartment. See United States v. Krupa, 658 F.3d 1174, 1177
(9th Cir. 2011). The affidavit in support of the warrant
alleged the following: 1) Fowlkes was a cocaine distributor;
2) he was using a phone that was the subject of an ongoing
wiretap; 3) he resided at 2310 Cedar Avenue, Apartment 3,
Long Beach, CA; and 4) during a phone call on one of the
tapped phones, Fowlkes instructed a woman to clear out the
place, including the computer, which the affiant interpreted
as telling the woman to remove all evidence of narcotics
distribution from the Cedar Avenue apartment. These facts
are sufficient to support the magistrate’s finding of probable
cause. Fowlkes’ assertion that the affidavit contained
material misrepresentations and omissions is unavailing. As
the district court correctly found, some of Fowlkes’
allegations lack evidentiary support. The other errors he
points to appear to be simply typographical errors, which do
not alter the substance of the affidavit.
C.
Finally, the district court correctly denied Fowlkes’
motion to suppress the cocaine base seized from his car. An
officer may conduct a traffic stop if the officer has “probable
cause to believe that a traffic violation has occurred.” Whren
v. United States, 517 U.S. 806, 810 (1996). “The fact that the
alleged traffic violation is a pretext for the stop is irrelevant,
so long as the objective circumstances justify the stop.”
United States v. Wallace, 213 F.3d 1216, 1219 (9th Cir.
2000). Here, the officer observed an expired temporary
30 UNITED STATES V. FOWLKES
operating permit on the car Fowlkes was driving, which
provided the basis for the Terry stop. See Terry v. Ohio,
392 U.S. 1, 20 (1968).
The search of the car was likewise appropriate under the
automobile exception to the warrant requirement, which
allows police officers to “conduct a warrantless search of a
vehicle if they have probable cause to believe that it contains
contraband.” United States v. Pinela-Herandez, 262 F.3d
974, 977–78 (9th Cir. 2001). A determination of probable
cause is based on the “totality of the circumstances” known
to the officers, United States v. Smith, 790 F.2d 789, 792 (9th
Cir. 1986), and because the officers were acting in concert in
this case, we “look[] to the collective knowledge of all the
officers involved in the criminal investigation.” United States
v. Ramirez, 473 F.3d 1026, 1032–37 (9th Cir. 2007) (internal
quotation marks and citation omitted). Here, the officers who
ordered the traffic stop had just observed what they believed,
based on previous surveillance of Fowlkes and their own
experiences, to be a narcotics transaction between Fowlkes
and another individual. Once the car was pulled over and
Fowlkes was ordered to get out of the car, officers observed
small, off-white rock-like chips on the driver and passenger
seats in plain view and a green, leaf-like substance inside a
clear bag in plain sight. Based upon the totality of these
circumstances, the district court properly denied Fowlkes’
motion to suppress the evidence found in the car.
IV.
The district court did not clearly err when it found,
following its grant of Fowlkes’ request for a mistrial, that the
government had not “goad[ed]” him into making the request.
See United States v. Lun, 944 F.2d 642, 644 (9th Cir. 1991).
UNITED STATES V. FOWLKES 31
“[O]nly where the governmental conduct in question is
intended to ‘goad’ the defendant into moving for a mistrial
may a defendant raise the bar of double jeopardy to a second
trial after having succeeded in aborting the first on his own
motion.” United States v. Lopez-Avila, 678 F.3d 955, 962
(9th Cir. 2012) (internal quotation marks omitted).
Fowlkes asserts that the government’s conduct in
arresting Marshall, a witness who had just testified for the
defense, immediately outside the courtroom doors and within
sight and hearing of the jury, goaded him into requesting the
mistrial. The trial court, after two days of evidentiary
hearings, found it could not “conclude that the arrest of Ms.
Marshall was done in bad faith or with the intention to secure
a mistrial.” The evidence supports the district court’s finding
“that the government did not intentionally effectuate Ms.
Marshall’s arrest so as to bring it to the attention of the jury.”
Indeed, the jury was able to observe the arrest only because
the glass panes on the courtroom doors afforded them a view
of the hallway where the arrest was taking place. Given these
facts, the district court’s finding is not clearly erroneous. See
United States v. Hagege, 437 F.3d 943, 951–52 (9th Cir.
2006). Moreover, while not conclusive, the government’s
opposition to Fowlkes’ motion for a mistrial supports the
district court’s finding of a lack of intent. See United States
v. McKoy, 78 F.3d 446, 449 (9th Cir. 1996) (considering the
government’s opposition to a motion for mistrial as a factor
in affirming the district court’s finding that the government
did not intentionally goad the defendants into seeking a
mistrial).
32 UNITED STATES V. FOWLKES
V.
For the foregoing reasons, we affirm in part and reverse
in part. We vacate Fowlkes’ conviction and sentence on
Count V, which was predicated on the drugs
unconstitutionally seized from his body cavity, and remand
for re-sentencing consistent with this decision.12
AFFIRMED, REVERSED, VACATED, and
REMANDED.
12
Fowlkes was sentenced to time served with an eight-year term of
supervised release, of which he has served approximately four years. The
district court made this term subject to a review of the Fair Sentencing Act
of 2010. We therefore decline to reach Fowlkes’ challenge to the
propriety of his original sentence under the Fair Sentencing Act of 2010,
and leave that issue in the hands of the district court.
UNITED STATES V. FOWLKES 33
RESTANI, Judge, dissenting in part.
Because I believe the facts found by the district court,
which the majority does not contend were clearly erroneous,
render the warrantless search and seizure reasonable under
the totality of the circumstances, I dissent from the majority’s
decision to suppress the evidence seized during the jailhouse
search.1
I.
The majority begins its discussion of the present case by
choosing to describe the facts surrounding the jailhouse
search in the most unfavorable light, at times engaging in
wholesale speculation, to portray this case as one involving
brutal, unnecessary police action. I believe it is helpful to
clarify some of the more important factual considerations in
order to fairly lay out the context the court must consider in
evaluating the reasonableness of the police actions at issue.2
The majority opinion makes much of the fact that Gibbs
“brought along his taser, gloves and ‘assistance’ in the form
of additional officers because he thought Fowlkes might have
drugs” and “retrieved a taser from his vehicle and put on latex
1
I concur in the reasoning of the majority opinion with respect to all
other issues raised on appeal.
2
Of course, as an appellate court, we are not to engage in independent
fact finding, deferring instead to the findings of the district court unless
they are clearly erroneous. In seemingly making new factual findings, the
majority appears dissatisfied with the lack of clear factual findings in the
district court’s order. If this is so, the remedy would be to remand to the
district court, not to engage in our own weighing of the disputed facts,
without the benefit of live testimony.
34 UNITED STATES V. FOWLKES
gloves.” See Maj. Op. at 5, 19. Not only is this insinuation
of an improper pre-search intent irrelevant under the
objective test used to evaluate the reasonableness of the
search, but Gibbs provided testimony, which the trial court
appeared to credit, plausibly explaining all of his actions.
Gibbs testified that he wore gloves during all strip searches in
the event he recovered evidence that was hidden on or in the
arrestee’s body, because these items might be used as
evidence (in which case fingerprints and/or DNA evidence
might need to be protected) and because the items could have
bodily fluids on them (posing a health hazard). He also
explained that he brought his taser from his patrol vehicle,
after obtaining permission to bring it into the jail, because
Fowlkes had been verbally aggressive, and Fowlkes was a
large individual (over six feet tall and 250 pounds).3
The majority also downplays an important fact in
describing the search in this case. See id. at 11–12. The
officers here were not completely in the dark as to what they
were seeking to seize, probing inside Fowlkes as part of a
wild goose chase. Instead, testimony from Officer Harris
made clear that the officers knew that the object protruding
from Fowlkes’ body cavity was unmistakably contraband for
two reasons: a) it was an undisclosed plastic baggie, and b) it
was almost certainly drugs.4 Officer Harris described the bag
3
The majority’s statement that Fowlkes posed no threat at all to the
officers simply is not supported by the record, although it was
acknowledged that Fowlkes was not physically aggressive, only verbally
aggressive, prior to the search. Maj. Op. at 17.
4
Contraband refers to any unauthorized item, not just illegal items,
including lighters, matches, currency, and pens. See Florence v. Bd. of
Chosen Freeholders, 132 S. Ct. 1510, 1519 (2012) (“Contraband is any
item that is possessed in violation of prison rules. Contraband obviously
UNITED STATES V. FOWLKES 35
as “a white object slightly protruding . . . maybe a little bit
less than a golf ball size, off-white substance in a plastic
baggy. Or inside plastic.”
Finally, the majority asserts that “the record is devoid of
any evidence from which the officers might reasonably have
inferred that evidence would be destroyed if they took the
time to secure a warrant and summon medical personnel.” Id.
at 20. Contrary to this assertion, Gibbs testified during the
evidentiary hearing on the motion to suppress that he was
concerned the evidence could be destroyed or adulterated by
Fowlkes. In fact, Gibbs explained that during past searches,
he had witnessed defendants, who had secreted drugs into
their body cavities, attempt to crush and swallow them during
the strip search. Moreover, Gibbs explained that it was not
uncommon for arrestees to become physically violent in order
to prevent recovery of the contraband once it fell out. Thus,
contrary to the majority’s conclusion, Gibbs’ testimony
indicates that it was objectively reasonable to believe that
Fowlkes might destroy the evidence. See Maj. Op. at 20–21
n.8.
includes drugs or weapons, but it can also be money, cigarettes, or even
some types of clothing.” (quoting Prisons: Today and Tomorrow 237 (J.
Pollock ed. 1997)). Here, when the object was protruding, the officers
could see that it was a plastic bag with an off-white substance inside, and
thus it was readily apparent that Fowlkes possessed an unauthorized
object. Contrary to the majority’s suggestion, I do not believe that the
officer’s knowledge of the type of contraband secreted inside the
arrestee’s body is immaterial, and in this case, we need not consider the
situation where the unauthorized nature or general character of the object
is not apparent. See Maj. Op. at 17–18 n.5.
36 UNITED STATES V. FOWLKES
II.
Having set out the facts, tethered to the record before us,
I turn now to the majority’s holding that the search5 was
unreasonable.
“The expectations of privacy of an individual taken into
police custody necessarily are of a diminished scope. Both
the person and the property in his immediate possession may
be searched at the station house. A search of the detainee’s
person when he is booked into custody may involve a
relatively extensive exploration . . . .” Maryland v. King,
133 S. Ct. 1958, 1978 (2013) (internal quotation marks,
brackets, and citations omitted). “Once an individual has
been arrested on probable cause for a dangerous offense that
may require detention before trial, . . . his or her expectations
of privacy and freedom from police scrutiny are reduced.” Id.
Under the Fourth Amendment, “[e]ven if a warrant is not
required, a search . . . must be reasonable in its scope and
manner of execution.” Id. at 1970. The reasonableness
analysis is fact-intensive and requires considerations of issues
such as privacy, hygiene, and the training of those conducting
the search. See Vaughan v. Ricketts, 859 F.2d 736, 741 (9th
Cir. 1988), abrogated on other grounds by Graham v.
Connor, 490 U.S. 386 (1989); see also United States v.
Carpenter, 496 F.2d 855, 855 (9th Cir. 1974) (per curiam).
To determine the reasonableness of a search, we balance the
“scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in
5
As the majority notes at footnote 2, whether a police action is termed
a “search” or a “seizure” is immaterial to the legal analysis. Accordingly,
the dissent uses the terms interchangeably.
UNITED STATES V. FOWLKES 37
which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559
(1979).
Although the majority is correct that under Schmerber v.
California, 384 U.S. 757 (1966), any bodily intrusion is a
search within the meaning of that term, “[t]he fact that an
intrusion is negligible is of central relevance to determining
reasonableness.” King, 133 S. Ct. at 1969.6 The removal of
the protruding object here admittedly required an invasion of
Fowlkes’ privacy interests beyond that of a visual search.
The removal, however, did not require any further touching,
intrusion, or probing into Fowlkes’ body.7 This simply is not
6
In Fuller v. M.G. Jewelry, we stated that Schmerber’s reference to
“intrusions into the body” applies to “all searches that invade the interior
of the body . . . [including] a visual intrusion into a body cavity.”
950 F.2d 1437, 1449 & n.11 (9th Cir. 1991) (noting the Ninth Circuit,
unlike other courts, has not limited Schmerber to cases in which skin is
pierced or entry is forced). Thus, even the visual inspection of the body
cavity here was an intrusion into the human body under Schmerber, but as
noted by the majority, that particular intrusion into the body is justified by
the need to maintain institutional security. See Bell, 441 U.S. at 560.
Thus, Schmerber does not require a warrant or exigent circumstances for
all searches involving intrusion beyond the body’s surface.
7
The majority relies on the Fourth Circuit’s opinion in United States v.
Edwards, 666 F.3d 877 (4th Cir. 2011). Although the majority there held
the search unreasonable because a knife was used to remove a bag of
drugs tied to the defendant’s genitals, the majority did not preclude any
touching of the defendant. See id. at 886. Instead, the majority suggested
other permissible alternatives including “untying the baggie, removing it
by hand, tearing the baggie, requesting that blunt scissors be brought to
the scene to remove the baggie, or removing the baggie by other non-
dangerous means in any private, well-lit area.” Id. (footnote omitted).
The majority misunderstands this footnote as indicating that the majority’s
holding precludes any further touching of a suspect or seizure of
contraband from a suspect’s rectum in all future cases. Maj. Op. at 18 n.6.
I make no such suggestion.
38 UNITED STATES V. FOWLKES
a case where the search required the government to probe
inside the subject’s body cavity based on the belief that
contraband might be concealed inside. Rather, it was a search
that involved negligible additional intrusion and was based on
the presence of contraband in plain sight.
Additionally, unlike in Carpenter,8 Fowlkes presented no
medical testimony related to the danger of removing the
protruding plastic bag, nor did Fowlkes argue that he was at
risk for injury or was injured by the removal. Fowlkes’
assertion before the district court was that Gibbs forcefully
inserted his fingers into Fowlkes’ anal cavity and probed,
8
In Carpenter, two judges concurred in the two sentence per curiam
opinion to limit the holding to the particular facts of that case. See
496 F.2d at 856 (Chambers, J., concurring) (“I regard the case as one . . .
of no precedential value except on a similar record.”); id. (Taylor, J.,
concurring) (“I am constrained to concur in reversing the conviction of
appellant only because of the record made on remand . . . .”). In
Carpenter, the district court credited testimony from the government’s
expert witness that a doctor should have been summoned to dilate the anal
cavity and did not credit other testimony from the same expert that the
object could be removed by a customs official without danger. Id. at 856.
Both concurring judges stated that if not for this particular medical
evidence credited by the district court, they would have concluded that a
custom official could remove the protruding object. Id. at 856 (Chambers,
J., concurring) (“The customs officer was entitled to assume the probable
– that the package was one that went in without much trouble and would
come out the same way.”); id. at 856–57 (Taylor, J., concurring) (noting
that despite the idealistic testimony of medical experts, common sense
dictates that the inspector was entitled to perform the simple process of
taking hold of and pulling the protruding end of the condom). As
indicated, there is no medical testimony here, and we can only speculate
as to what is considered necessary by medical professionals. That LBPD
policy requires medical personnel to perform body cavity searches is not
the same as medical testimony concerning the safety, propriety, and
reasonableness of the search and does not rise to the level of testimony
relied on in Carpenter. See Maj. Op. at 15 n.3.
UNITED STATES V. FOWLKES 39
unsuccessfully, for drugs, facts that were rejected by the
district court. As a result, Fowlkes made no allegations as to
the harm caused by the actual removal of the protruding
plastic bag, and there is nothing on the record from Fowlkes’
perspective indicating that the manner of removal was
dangerous or harmful. Instead, the record states that the
search was performed in a private area by LBPD officers
wearing gloves and of the same sex as Fowlkes. The plastic
bag was protruding far enough so that Gibbs could grab the
bag with two fingers and pull it out, and there is no indication
that this process was difficult or prolonged.
The only evidence on the record suggesting that the
removal caused Fowlkes any pain or discomfort is a picture
of the plastic bag after it was removed, which shows
substances that appear to be blood and feces on the bag.
Fowlkes argues the officers planted the plastic bag in the strip
search room and denied that it was recovered from his body
cavity. Thus, there is no testimony from Fowlkes as to the
existence of the plastic bag inside of him or the manner of its
removal, and there is nothing on the record demonstrating
that the possible presence of blood on the bag was caused by
the officers’ conduct, as opposed to Fowlkes’ own conduct of
forcing the plastic bag into his anal cavity, or his attempt to
push the bag further into his anal cavity during the search.
See Thompson v. Souza, 111 F.3d 694, 700 (9th Cir. 1997)
(“[T]he prisoner ‘bears the burden of showing that [prison]
officials intentionally used exaggerated or excessive means
to enforce security.’” (second alteration in original)) (quoting
Michenfelder v. Summer, 860 F.2d 328, 333 (9th Cir. 1988)).
At the same time, the context of the search diminished
Fowlkes’ reasonable expectation of privacy and provided a
strong justification for the search. Here, Fowlkes was strip
40 UNITED STATES V. FOWLKES
searched pursuant to a blanket LBPD policy that all
individuals booked on felony charges are subject to a strip
search before being housed in “General Population Felony
cells.”9 The undisputed testimony is that the purpose of this
policy is to “prevent the introduction of contraband or
weapons into the jail.” Thus, because the search here was
performed in order to maintain institutional security and
order, we should evaluate the reasonableness of the search
given this particular context. See Bull v. City & Cnty. of San
Francisco, 595 F.3d 964, 971–72 (9th Cir. 2010) (citing Bell,
441 U.S. at 547) (noting that prison policies must be
evaluated in the light of the prison’s primary objective of
institutional security). The removal occurred during the jail
intake process, after a felony arrest supported by probable
cause, after Fowlkes attempted to smuggle contraband into
the jail, and after a lawful visual inspection revealed the
contraband in plain sight. Given the government’s interest in
preventing the introduction of contraband into the facility, I
believe that although removing the protruding object from
Fowlkes’ body was an invasion of privacy beyond that caused
by a visual cavity inspection, we must conclude from this
record that the search was nevertheless reasonable.10
9
My views are not directed to any due process claim in a separate action
under 42 U.S.C. § 1983, stemming from the officers’ failure to follow the
jail’s own regulations. See Marsh v. Cnty. of San Diego, 680 F.3d 1148,
1155 (9th Cir. 2012).
10
For this reason, I find the majority’s reliance on the series of cases
cited on pages 12–13 of its opinion to be inapposite, as they are outside of
the jail context and do not deal with facts analogous to the present case.
Under Bull, these cases are distinguishable because “[c]ases that address
searches of arrestees at the place of arrest, searches at the stationhouse
prior to booking or placement in a holding cell, or searches pursuant to an
evidentiary criminal investigation do not control our review.” 595 F.3d
at 971.
UNITED STATES V. FOWLKES 41
On the suppression record before us, which demonstrates
the object was removed without any intrusion into the anal
cavity,11 without any significant injury, harm, or pain to
Fowlkes, and in a sanitary and private environment, I cannot
conclude that the manner of removal was in violation of the
Fourth Amendment.12
11
The removal of a protruding object raises different, and less grave,
considerations for health than when contraband is fully inserted inside a
cavity and can only be located and removed through digital penetration
and probing. The actual probing for the inserted object may itself cause
medical harm distinct from the removal of the item, and the officers may
have no idea as to its shape, size, or location. Thus, without evidence we
cannot assume a need for medical training when a protruding object is
removed.
12
Additionally, the facts in this case do not include those that we found,
when combined with others, render the manner of removing an item
unreasonable. For example, in Vaughan, we found a digital rectum search
was performed unreasonably when conducted on an unsanitary table by
medical assistants who were not trained in involuntary rectal searches, the
assistants did not wash their hands between searches, and the search was
visible to other inmates and prison personnel, including female prison
officials. Vaughan, 859 F.2d at 741; see also United States v. Cameron,
538 F.2d 254, 258 (9th Cir. 1976) (finding two forced digital probes of
rectum by a doctor, two enemas, and a liquid laxative administered
without the presence of a doctor unreasonable, especially when performed
without consideration of the subject’s claim that he was under medical
supervision for stomach and rectal problems). The search here did not
involve penetration of the anal cavity, let alone multiple forced probes and
enemas as in Cameron or the unsanitary conditions and lack of privacy as
in Vaughan. Officers also took steps to minimize potential harm to
Fowlkes and to protect his privacy by conducting the search in an
apparently clean, private room dedicated for this purpose and by using
medical gloves.
42 UNITED STATES V. FOWLKES
III.
For the reasons above, I believe the seizure of the small
baggie of obvious contraband during a constitutionally
permissible strip search of a criminal detainee was reasonable
under the totality of the circumstances. In concluding,
however, it is worth passing upon the “alternative methods”13
of recovering the contraband alluded to by the majority. See
Maj. Op. at 6–7, 16–17, 19. The majority mentions these
alternatives only with respect to its conception of a
reasonable method of seizure. This may be because pleasant
alternatives are less obvious under these circumstances.
I suppose the officers could have placed Fowlkes in an
isolation cell, handcuffed, partially clothed, and under
constant surveillance, allowing them to respond immediately
when the baggie worked its way the other inch or so out of
Fowlkes’ body. This hardly seems to be, per se, a less
intrusive or offensive condition in which to place a detainee.
See, e.g., Montoya de Hernandez, 473 U.S. at 548 (Brennan,
J., dissenting) (noting individual was able to avoid passing
naturally any of the 88 drug-filled balloons secreted in her
alimentary canal for almost 27 hours after initial detention
despite her obvious need to use the restroom).
With respect to removal, certainly a medical professional
is always preferable, but it remains a mystery whether one
13
As the majority concedes, the existence of a less-intrusive alternative
“does not, in itself, render the search unreasonable.” United States v.
Montoya de Hernandez, 473 U.S. 531, 542 (1985) (noting a creative mind
“can almost always imagine some alternative means by which the
objectives of the police might have been accomplished”); see Bell,
441 U.S. at 559 n.40 (rejecting the “less-restrictive-alternative” test as
determinative of reasonableness).
UNITED STATES V. FOWLKES 43
was readily available to assist the officers in removing the
baggie and what he or she would have done differently.
Without such information and based on the totality of the
circumstances, the lack of medical personnel did not render
the seizure unreasonable. See Florence, 132 S. Ct. at
1513–14 (“In addressing this type of constitutional claim
courts must defer to the judgment of correctional officials
unless the record contains substantial evidence showing their
policies are an unnecessary or unjustified response to
problems of jail security.”); Bull, 595 F.3d at 976 (“When the
allocation of resources and the ability of administrators to
protect staff and detainees at the facility are at issue, ‘courts
should be particularly deferential to the informed discretion
of corrections officials.’”) (quoting Turrner v. Safley,
482 U.S. 78, 90 (1987)). In sum, the factual record needed to
find a Fourth Amendment violation warranting suppression
is lacking.
Accordingly, I respectfully dissent.