A lot of folks in the blogosphere have been writing about this story on Eckert v. City of Deming, a Fourth Amendment civil case involving a routine traffic stop that turned into the government forcing a suspect to undergo invasive medical procedures looking for drugs. I thought I would run through some of the allegations as well as the major legal issues they raise. Unfortunately, the case is too complicated to give a full and complete picture of all the legal issues in the time I have. But I hope to at least hit some major points.
The facts alleged in the case are complicated and filled with many allegations, but here’s the gist of it. Officers pulled over Eckert for a traffic violation, and the officers came to believe that Eckert was a narcotics smuggler. A drug-sniffing dog was brought to the car, and it alerted to the front seat where Eckert had been sitting. The officers came to believe that Eckert had drugs stored up his rectum, and they brought Eckert to the police station. The officers then applied for and obtained a search warrant to search his body for the drugs, including but not limited to his rectal area.
The officers brought Eckert to the local emergency room to have a doctor execute the warrant, but the first doctor refused. The officers located a medical center in a nearby county and brought him to the ER there, and the ER doctor agreed to execute the warrant. The ER doctor ordered an X-ray, which produced nothing, and then conducted a digital rectal exam over Eckert’s objection. The doctor felt something soft but wasn’t sure what it was, and he then passed off the case to another doctor. At this point it was a little after 10pm. The second doctor did another digital rectal exam but didn’t find anything.
After that didn’t work, the doctor forced Eckert to undergo three enemas in front of the nurse and one of the officers to see if he passed the narcotics. No narcotics were found. After that, the doctor forced Eckert to undergo a colonoscopy under general anesthesia. Again, no drugs were found. Finally, the officers came to the conclusion that Eckert had no drugs in him, and they returned him home. To add insult to injury, the medical center then billed Eckert for the medical procedures that they forced him to undergo. (Not relevant to the Fourth Amendment issues, I realize. But damn, that’s cold.)
Ok, enough of the facts. What about the law? There are a lot of potential issues here, but I’ll focus on three of the major questions:
- Did the officers have probable cause to obtain a warrant?
- Assuming the officers had probable cause, did the Fourth Amendment allow the ER doctor to force Eckert to submit to such invasive procedures even pursuant to a warrant?
- Assuming the Fourth Amendment was violated, was the violation clearly established such that qualified immunity does not apply?
My short answers are:
- We don’t know if there was probable cause;
- The Fourth Amendment likely didn’t allow the invasive procedures; and
- Whether qualified immunity should apply is a potentially difficult question.
Here are the long answers:
1. It’s hard to know whether there was probable cause for the warrant. Probable cause for a warrant is judged solely by what is in the affidavit, and we haven’t seen the affidavit. Just eyeballing the facts from the allegations in the complaint, and assuming that those facts went into the warrant, it’s hard to tell if the standard was satisfied. The stop looks legit, and the drug-sniffing dog allegedly alerted to the driver’s seat. If the dog was well-trained, that’s PC to believe there are drugs in the car, at least, see Florida v. Harris. There are also signs in the opinion that the officers had suspicions that Eckert smuggled drugs in his rectum: The officers told Eckert that “he was known” to do this. We have no idea what the basis was of this statement, however — if any — so it’s hard to know if there was probable cause to believe that Eckert had drugs in him.
Some media coverage on this case focuses on the line in the affidavit that the officer had apparently said that Eckert had a stiff posture and kept his legs together, which some blog posts are reporting as the sole basis for the warrant. The HuffPost article on the case offers this inflammatory opening line: “A New Mexico man is alleging abuse after authorities conducted three enemas, a colonoscopy, an X-ray and several cavity searches on him simply because he appeared to clench his buttocks.” As a result, a lot of folks in the blogosphere seems to be thinking of this as the “clenched buttocks” case (thus the title of this post, so people know which case I have in mind). But that seems like at most a very small picture of the alleged cause, and we don’t even know if that was in the affidavit. The likely basis for the alleged cause is mostly the drug-sniffing dog’s alert to the driver’s seat that is the likely basis for probable cause.
2. The second issue is whether the police could use such invasive techniques to find the drugs. The key case is Winston v. Lee, 470 U.S. 753 (1985), which expressly considered when the government can get a warrant to perform surgery on a suspect for evidence in their body. Under Lee, the court must conduct a balancing of the overall invasiveness of the surgical measures as compared to the need for evidence to say whether a warrant can be used to allow the surgical technique. On one hand, withdrawing blood to test it for alcohol in a DUI case is reasonable, and is allowed. On the other hand, dangerous surgery to extract a bullet lodged under a suspect’s collarbone was unreasonable when the bullet was of relatively low evidentiary value.
So could the government obtain a warrant to conduct a colonoscopy, etc., to find drugs believed to be inside the person? I think the answer is no, although concededly the caselaw isn’t as well established as I would have thought. The closest precedent is United States v. Gray, 669 F.3d 556 (5th Cir. 2012), vacated on other grounds, 133 S.Ct. 151 (2013), which also dealt with a digital rectal exam and then a proctoscopic exam in a search for drugs in the suspect’s rectum pursuant to a warrant. The exam was successful and the drugs were admitted at trial. The Fifth Circuit held that the search was unconstitutional but that the good faith exception applied. To be fair, that judgment affirming the conviction was then vacated on entirely unrelated grounds, although I’m not sure whether that matters from a precedential standpoint: The Supreme Court vacated the decision to help the defendant on a sentencing issue, and it would be strange if that relief undercut the pro-defendant ruling on the Fourth Amendment merits. So I’m assuming that we can still rely on the Gray precedent, although I’d have to think more about whether that’s the case.
Anyway, according to the Fifth Circuit in Gray, the invasive search was unreasonable under Lee:
When balancing these interests and comparing them to our benchmarks of the permissible Schmerber blood draw and the impermissible Winston surgery, the medical danger here is slightly greater than in the former but nowhere near the danger of the latter. As to the dignitary interest, this is one of the greatest dignitary intrusions that could flow from a medical procedure—involuntary sedation for an anal probe where the person remains conscious. The last consideration is society’s interests, which are not as great as in Schmerber but greater than in Winston. On balance, we find the proctoscopic search unreasonable due to the exceeding affront to Gray’s dignitary interest.
That’s the closest case I could find, and it’s pretty close. On the other hand, there are some cases that are at least in the rough ballpark factually that lead to (or at least strongly hint at) different results. In Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991), the First Circuit declined to rule out that a forced physical search for drugs believed to be hidden in a suspect’s vagina was reasonable pursuant to a warrant, at least when conducted by doctors at a hospital; the court rejected the suit on qualified immunity grounds without reaching the merits of the Fourth Amendment analysis, but the opinion seemed at least open to the idea that such searches could be reasonable. Also, in Marmolejo v. State, 743 S.W.2d 669 (Ct. App. Tex. 987), a court held it was reasonable under the Fourth Amendment for the government to obtain and execute a warrant for drugs a suspect was thought to have swallowed, in a case in which they executed the warrant by administering an emetic (a substance that makes a person vomit) by means of an esophageal tube when the person refused to swallow the emetic voluntarily.
Still, the closest precedent here seems to be Gray. And here the facts seem more egregious than Gray, in that the officers kept getting more and more invasive with each effort. Even though the lack of success of the prior efforts should have pointed them to the decreasing likelihood that the drugs were there, they kept ramping up the invasiveness of the methods, again and again, ending with the tremendously invasive colonoscopy. Even if the physical exam might have been okay, by the time you get to a colonoscopy, alarm bells should be going off. Based on that, I conclude that the conduct violated the Fourth Amendment under Winston v. Lee.
3. The qualified immunity issue is the complicated part, I think. That’s true for two reasons. First, it’s not entirely clear who was in charge of the decisionmaking as to what steps were taken at different times. In the beginning, the officers were in charge; afterwards, it looks like the doctors were in charge. So the qualified immunity analysis for each defendant may be different. And I would think that the different roles of different defendants could conceivably make recovery harder.
Take the role of the doctor who conducted most of the invasive steps. The doctor was a state actor as he executed the warrant. See Rodriques v. Furtado, 950 F.2d 805, 814 (1st Cir. 1991). But how does the qualified immunity test apply to the decisions of a doctor? Do we apply the reasonable police officer test? The reasonable doctor test? If so, how much Fourth Amendment law do we expect a doctor to know? There’s at least one case suggesting that doctors are generally entitled to qualified immunity when they conduct invasive examinations pursuant to facially valid warrants. See Rodriques, 950 F.2d at 814 (making that suggestion, and noting that having the doctor conduct the search “not only benefits society by effectuating acceptable means to execute body cavity searches pursuant to a warrant issued on probable cause, it also benefits the party being searched by providing a safe means of conducting the search in a medically approved manner.”). So that’s a potentially important issue to consider.
A second complication is the good-faith analysis in Gray. The good-faith exception invokes the same test as the qualified immunity standard, see Malley v. Briggs, 475 U.S. 335, 344 (1986), so the good-faith analysis can be treated as a qualified immunity analysis, too. In Gray, the court not only held that the good-faith exception applied: It also concluded that can be no remedy when officers obtain a warrant to conduct a bodily search that is unreasonable because of how it was executed:
[A] warrant, like the one at issue, that authorizes a medical procedure search of a specific area of the body but does not prescribe any off-limits procedures will be subject to good faith unless the police misled the magistrate, the magistrate abandoned her judicial role, or the warrant so clearly lacked probable cause. None of those situations exists in this case. This fact is of great concern to us because it seems that even if the magistrate were to authorize a medical procedure search that would violate the Fourth Amendment, like the general surgery found impermissible in Winston, there is no remedy for such a violation; the police officer’s reliance on that warrant would be objectively reasonable.
If you rely on that conclusion in Gray — that there should be no remedy even under the facts of Winston v. Lee — then that is a serious challenge to recovering damages here. At the same time, I think the Gray court is misunderstanding the test. The Gray court is applying the good-faith test for facially defective warrants as established in United States v. Leon (1984). But when officers obtain a warrant to conduct a search that should be prohibited under Winston v. Lee, the problem isn’t that the warrant is facially defective: The problem is that the search isn’t allowed even if the warrant is facially perfect. So I think the Gray court is misunderstanding the question.
If we ignore the conclusion in Gray and just ask whether the officers should have known that the search was unconstitutional, there aren’t a ton of precedents out there. There are other cases involving rectal searches for drugs without warrants, but it’s not clear how applicable they are. Still, the closest case is Gray, which was handed down just a few months before the search in this case. So maybe you can say that Gray clearly establishes the right. But Gray is a Fifth Circuit case, and these facts arose in New Mexico in the Tenth Circuit. Under Tenth Circuit precedent, “for a right to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Cortez v. McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2007). I’m not sure a single circuit court case can constitute “the clearly established weight of authority.”
Alternatively, you could say that Winston v. Lee alone clearly establishes the violation. Although Lee offers a mushy balancing test, you could say that say that a colonoscopy is just so off the charts that any officer (or maybe doctor?) should know not to do that based on Lee alone. That may be right, but in light of the Gray analysis, it’s at least somewhat of an open issue. In the interests of time, I’m not going to reach a view of whether qualified immunity doctrine should apply. Suffice it to say that there are arguments on both sides; it’s a harder issue than I expected it would be when I started.
Another issue that relates to the qualified immunity issue is what to make of the fact that the warrant was ultimately executed outside the issuing county, and the execution of the warrant lasted at least in part after 10pm. I don’t think the fact that the warrant was executed in part after 10pm is a constitutional problem. Although warrant rules require the execution of a search to normally occur in the day time, that generally is thought to refer to when the execution of the warrant begins, not when it ends. See United States v. Squillacote, 221 F.3d 542, 556 (4th Cir.2000). Further, there is a division of authority on whether the Fourth Amendment requires warrants to be executed in the day time by default at all, with the Fourth Circuit saying that the time of day doesn’t matter, some courts saying it is relevant to reasonableness, and the Minnesota Supreme Court saying it is a sharp line (see here for more). Finally, the reason for the daytime execution rule is that nighttime entries into a home are dangerous. That is not an issue when the “place to be searched” is the suspect in custody. So at the very least, I don’t think the hour of the search is a major issue on the qualified immunity standard.
I have a somewhat similar reaction to the question of executing the warrant in the wrong county. The officers tried to execute the warrant in the right county: They only went to the other county when the nurse at the first county hospital refused to execute the warrant. I’m not aware of any cases indicating that, where the government gets a warrant to search a person but they need the help of a medical professional, the Fourth Amendment allows the search if the medical professional comes to the home county but disallows the search if the police bring the person to the medical professional in the next county. From a Fourth Amendment perspective, it’s not clear why it should matter if the doctor comes to the cop or the cop comes to the doctor, and I haven’t found any cases indicating that it makes a difference. Further, Federal Rule of Criminal Procedure 41 expressly allows judges to issue warrants in such cases, making it harder to say that any violation of the Fourth Amendment on that basis was clearly established for qualified immunity purposes. See Fed. R. Crim. Pro. 41(b)(2) (allowing a federal judge in one district to issue a warrant “for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed”).
Anyway, sorry for the long and inconclusive analysis. I know some readers are going to be irate that I am providing a legal analysis on an emotional case, and others will be annoyed that I haven’t reached a clear answer. But my comparative advantage is analysis rather than emotion, and I figured an inconclusive analysis was better than nothing. (After spending about 3-4 hours on this post I almost decided just to leave it incomplete and unpublished, as it’s taking too much time; I decided to give it a bit more time and just publish what I had.) So I’m sorry it couldn’t be better and more conclusive.