Good News: Cops Now Slightly More Likely to Lube You First

Some things are funny because they’re funny; other things are funny (at least to me) because they’re so outrageous that the brain realizes the alternatives are fury, depression, or maybe furious depression, and it does what it can to channel that.

This is the second kind of thing.

Ken White reports today on the opinion in United States v. Fowlkes, in which that notoriously liberal Ninth Circuit actually went so far as to impose (some) limits on cops yanking things out of your ass. See Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass,” Popehat (Sept. 30, 2015).

I imagine some of you, probably the non-lawyers, believed there were already some limits on cops yanking things out of your ass, or, for that matter, putting things in it, which is often a required precursor to such yanking. Technically there are such limits, though I’m sure somebody out there would be willing to debate whether the Founders ever contemplated, when crafting the Fourth Amendment, the possibility that the government they were creating might one day employ agents to look up citizen asses on a regular basis.

For why declare [in a Bill of Rights] that things shall not be done which there is no power to do? Why, for instance, should it be said that constables may not invade the buttocks of the citizenry, when no power is given by which such spelunking could be justified? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. 

Alexander Hamilton, Federalist No. 84 (first draft)

The right of the people to be secure in their persons, anuses, rectums, colons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place or buttocks to be searched, and the persons or things to be seized.

U.S. Const., amend. IV (rejected draft)

They probably didn’t, partly because (1) there was no such thing as a police force at the time and (2) they assumed we would not all go completely insane in less than 300 years.

Anyway, the case stems from (wait for it) yet another battle in the War on Drugs, specifically a DEA/Long Beach PD operation in 2006. After (constitutionally) gathering enough evidence to arrest Mr. Fowlkes for dealing crack, the LBPD brought him to the city jail for “processing.” This involved a strip search, and (unfortunately) visual strip searches have been held constitutional in this context regardless of what you’ve been arrested for, so that would also have been constitutional here.

But then the real fun began.

Once Fowlkes was naked, handcuffed, and surrounded by five officers, a Sgt. Gibbs then directed him to spread his buttocks for a visual search. The officers testified, however, that Fowlkes’ subsequent hand movements led them to believe he was trying to push something further up there. Claiming he thought Fowlkes was trying to “destroy evidence,” Gibbs tased him and got his fellow officers to bend him over. Gibbs’s eagle eye then spotted something protruding. He didn’t know what it was, or “how large it was or how far it extended into Fowlkes’ body.” So, what does one do in such a situation? Here’s what one does not do, or at least what the LBPD does not do: “attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally,” or even “use lubrication.” Instead, one immediately grabs the mystery item and forcibly yanks it out.

The Ninth Circuit’s calm tone tends to minimize some of the stupidity here. First, about the allegedly suspicious hand movements of one who has just been asked to spread his buttocks: the officers “acknowledged there was no other way … to comply with the directive other than by reaching back” there. Second and more importantly, the claim that Fowlkes might have been trying “to destroy evidence” is hilarious. The Ninth Circuit does note that the claim of exigent circumstances was not reasonable because “Fowlkes, like the evidence lodged inside his rectum, was not going anywhere,” which is not bad for a court. But Ken’s line, “that’s not how anuses work,” is a lot better.

This wasn’t, or shouldn’t have been, a difficult decision for the court. There are lots of cases holding that warrantless physical cavity searches are generally not reasonable (setting aside whether this should be okay with a warrant). What is a little perplexing is the number of words it takes the court to conclude that this particular warrantless physical cavity search was not reasonable. Sure, it’s a multi-factor, totality-of-the-circumstances test. But on these facts I have trouble with even the suggestion that this might have been okay if the police had used “lubricant” or invited a doctor along. As Ken also points out, there were doctors involved in the horrific New Mexico case too.

Also, the court not only fails to express much outrage, it includes a footnote carefully leaving the door to your rectum open:

To be clear, our holding does not preclude … seizure of contraband from a suspect’s rectum in all cases. [W]e hold only that the particular manner of seizing evidence employed by the LBPD in this case was unreasonable.

Oh, good to know.

Worse, there is a dissent. The dissenter decided she really couldn’t say this was unreasonable, at least by comparison to some of the even more horrible cases on which the court has ruled. But just because you can point to something worse doesn’t mean the thing in front of you is good. And remember, this was done not to look for a bomb or plutonium or something like that, but just to get some evidence that they probably didn’t even need in order to put away a small-time drug dealer.

Plus, they could have just waited a couple of days. I’m not saying they had to wait a month, like they do in those countries that coddle defendants, like Nigeria. See Accused Celebrity Smuggler Cleared After 24 ‘Closely Monitored’ Bowel Movements,” Lowering the Bar (Nov. 9, 2011). Just a couple of days.