United States v. Mark Fowlkes , 770 F.3d 748 ( 2014 )

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, OPINION
Defendant-Appellant.
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 August 25, 2014
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
Affirming in part, reversing in part, and remanding, the
panel held that the forcible removal of drugs from the
defendant’s rectum during a body cavity search at the Long
Beach Jail, without medical training or a warrant, violated the
defendant’s Fourth Amendment rights, and the evidence
obtained from this brutal and physically invasive search
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.
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.
**
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
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.
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 drugs from Fowlkes’s 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
search should have been suppressed, we vacate Fowlkes’s
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
4 UNITED STATES V. FOWLKES
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
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.
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.
UNITED STATES V. FOWLKES 5
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.
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 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 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’s 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’s rectum.
6 UNITED STATES V. FOWLKES
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,
making escape or resistance impossible. 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’s rectum. Nor could they determine how large it
was or how far it extended into Fowlkes’s body. Despite this,
and despite the fact that none of the officers had any relevant
medical training, the officers did 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’s rectum without the assistance of anesthesia,
lubricant, or medical dilation. Although Sergeant Gibbs
testified that he was able to remove the object using his
thumb and index finger without penetrating Fowlkes’s 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.
UNITED STATES V. FOWLKES 7
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.
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’s 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
8 UNITED STATES V. FOWLKES
and marijuana seized from his car because the initial stop and
subsequent search of his car was unlawful; (4) suppress the
evidence obtained from the body cavity search performed at
the jail because the warrantless search violated his Fourth
Amendment rights; (5) dismiss the indictment on a claim of
evidence tampering;1 and (6) dismiss the indictment on
double jeopardy grounds following a mistrial.
We affirm the district court’s rulings except the denial of
Fowlkes’s motion to suppress the cocaine seized from within
his body during the warrantless body cavity search at the
Long Beach 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 a warrant was not required for
the drugs forcibly removed from Fowlkes’s rectum, reasoning
that the officers conducted a visual search rather than a
physical one. We conclude to the contrary based on the
particular circumstances of the search at issue.
1
Because the evidence seized from within Fowlkes’s body during the
unconstitutional body cavity search, as to which Fowlkes claims
tampering, should have been suppressed, we need not resolve Fowlkes’s
other allegations of discovery violations or chain of custody issues
pertaining to that evidence.
UNITED STATES V. FOWLKES 9
A.
The Fourth Amendment requires police officers to obtain
a warrant to search for and seize drugs within a person’s
body. 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.”)). A warrantless search of the human body
implicates an individual’s “most personal and deep-rooted
expectations of privacy,” Winston v. Lee, 470 U.S. 753, 760
(1985), and is reasonable only if it falls within one of the
Fourth Amendment’s recognized exceptions, Missouri v.
McNeely, 133 S. Ct. 1552, 1558 (2013). The government
bears the burden of demonstrating that an exception to the
warrant requirement exists in any given case. See United
States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985) (internal
citations omitted) (“The government bears a heavy burden of
demonstrating that exceptional circumstances justif[y]
departure from the warrant requirement.”).
Exigent circumstances did not justify the warrantless
search of Fowlkes’ rectum. The exception for exigent
circumstances “applies when the exigencies of the situation
make the needs of law enforcement so compelling that a
warrantless search is objectively reasonable under the Fourth
Amendment.” McNeely, 133 S. Ct. at 1558 (quoting
Kentucky v. King, 131 S. Ct. 1849, 1856 (2011)). 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 v.
California, 384 U.S. 757, 770–71 (1966). However, it is
10 UNITED STATES V. FOWLKES
well-settled that the exception applies only where “there is [a]
compelling need for official action and no time to secure a
warrant.” McNeely, 133 S. Ct. at 1559 (emphasis added)
(quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)).
The record is devoid of any evidence from which the
officers might reasonably have inferred that they were
confronted with an exigent circumstance—the possible
destruction of evidence—that left them with “no time to
secure a warrant.” Id. When he was searched, Fowlkes was
handcuffed, tased, and surrounded by five police officers. He
was under arrest and in the custody of the LBPD. The record
contains no evidence that Fowlkes could have destroyed
evidence or that a medical emergency existed. See United
States v. Cameron, 538 F.2d 254, 259 & n.8 (9th Cir. 1976)
(“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.”).
Under these circumstances, there was ample time for the
officers to secure a warrant, and the government’s claim of
exigency fails.
Having found the exigency argument unavailing, we turn
to the question of whether the “special needs” exception
justifies this class of warrantless searches. Contrary to the
dissent’s contention, it does not. Under the special needs
exception, “suspicionless searches may be upheld if they are
conducted for important non-law enforcement purposes in
contexts where adherence to the warrant-and-probable cause
requirement would be impracticable.” Friedman v. Boucher,
580 F.3d 847, 853 (9th Cir. 2009) (emphasis omitted)
UNITED STATES V. FOWLKES 11
(citation ommitted). To meet its burden of proving that the
special needs exception justifies this search, the government
must demonstrate that its interests were sufficient to outweigh
the constitutional rights of the arrestee. See Bull v. City and
Cnty. of S.F., 595 F.3d 964, 975 (9th Cir. 2010) (en banc).
We must balance “the need for the particular search against
the invasion of personal rights that the search entails” by
“consider[ing] the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating
it, and the place in which it is conducted.” Bell v. Wolfish,
441 U.S. 520, 559 (1979).
The government has a strong interest in preventing
contraband from entering its prisons and jails, but to satisfy
the special needs exception, the government must also
demonstrate that “adherence to the warrant-and-probable
cause requirement would be impracticable.” Friedman,
580 F.3d at 853 (internal quotation marks ommitted). The
government does not meet this burden.
In Bull, we addressed whether suspicionless visual body
cavity searches may be performed without a warrant during
the jail intake process. 595 F.3d at 968–69. 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
12 UNITED STATES V. FOWLKES
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
explicitly noted: “There are no allegations that the detainees
here were touched in any way as part of the searches.” Id. at
1515.
Neither of the concerns that animated our reasoning in
Bull or the Court’s reasoning in Florence is present in this
case. First, the government does not contend that it is
necessary to physically penetrate the body cavities of every
person booked into the Long Beach City Jail. Instead, it
seeks to justify the warrantless intrusion into one inmate’s
body cavity. 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. The relatively
small numbers of inmates concealing contraband in their
body cavities shows there is not a “special need” for officers
UNITED STATES V. FOWLKES 13
to conduct warrantless searches into inmates’ body cavities in
general. These small numbers and the technological
advancements that facilitate nearly immediate access to
warrants,2 render the burden placed on the government to
obtain a warrant negligible. Because officers likely will be
able to establish probable cause based on their visual
observations of the small number of individuals whom they
suspect of secreting contraband, the time, feasibility, and
practicability concerns underlying Bull and Florence do not
apply here.
B.
Cementing the Fourth Amendment violation in this case
is the unreasonableness of the manner in which the search
was executed. “Even 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. Urgent
government interests are not a license for indiscriminate
police behavior.” 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 such an abuse cannot be
condoned.” (quoting Bell, 441 U.S. at 560)).
2
“[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.
14 UNITED STATES V. FOWLKES
The conduct of the search here was patently unreasonable.
In determining whether an individual search is reasonable, we
evaluate the “totality of the circumstances,” McNeely, 133 S.
Ct. at 1559, including “the scope of the particular intrusion,
the manner of its conduct, and the justification for initiating
it.” Cameron, 538 F.2d at 258 (internal quotation marks
omitted).
First, Sergeant Gibbs evinced an intent to conduct any
body cavity search he thought necessary long before he saw
the plastic bag protruding from Fowlkes’s rectum or was
privy to any other possible justification for such an intrusion.
Gibbs, suspecting that Fowlkes had contraband in his person,
made his way to the strip search room in the basement armed
with his protective gloves, a stun gun taser, and additional
officers—in short, everything he needed to conduct a cavity
search, except a warrant.
Second, the scope of the search intruded beyond the
surface of Fowlkes’s body, interfering with his bodily
integrity. As the 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. There, the Court
upheld a warrantless blood draw by hospital personnel under
“special facts” where there was no time to obtain a warrant
because the amount of alcohol in the blood dissipates when
the drinking stops and the evidence of alcohol would
disappear. See id. at 770–71. However, in doing so, the
Court also noted, “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.” Id. at 769–70. The Court has subsequently
described the interest in bodily integrity as implicating the
UNITED STATES V. FOWLKES 15
“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).
Third, the manner in which this search was conducted was
unreasonable. “[T]he fourth amendment imposes a stricter
standard on the ‘means and procedures’ of a body search than
does the due process clause.” Cameron, 538 F.2d at 258. In
evaluating whether the manner in which a search is conducted
is reasonable, 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 searches3 by failing to conduct
the search “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
suspicious objects from an arrestee’s rectum or how to
evaluate whether such removal could cause serious physical
harm or death. The manner of this search is the very sort the
3
The dissent is incorrect in suggesting that the physical search was
conducted in accordance with the jail’s written policy.
16 UNITED STATES V. FOWLKES
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 searches does invite
an unjustified element of personal risk—a risk that Fowlkes
experienced first-hand and one that is constitutionally
intolerable.4
In Cameron, then-Judge Anthony M. Kennedy explained,
“[a]ny body search, 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.” 538 F.2d at 258.
Specifically, he noted:
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
visual searches and physical searches 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
[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. As in the case before us, the 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. In 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 there was no effort to minimize the potential for
internal physical trauma to Fowlkes or the emotional
humiliation he suffered. Schmerber is again instructive.
There 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. Here by
contrast, 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 and bent over at the time), Sergeant
Gibbs used a stun-gun taser to shock Fowlkes in an apparent
effort to subdue him before conducting the physical search.
Cf. Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010);
18 UNITED STATES V. FOWLKES
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’s rectum.5
Such conduct is a far cry from Cameron’s directive to
“allay the anxieties and concerns of the suspect,” or
contemplate whether any “less intrusive means of obtaining
the evidence may properly have been considered.” Cameron,
538 F.2d at 258. As the Fourth Circuit recently held, “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.” United States v. Edwards, 666 F.3d
877, 884 (4th Cir. 2011). There, the court determined that the
manner in which an officer removed a plastic bag that an
arrestee had tied around his penis was unreasonable. 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-
5
The dissent suggests that it is immaterial that the materials lodged
inside of Fowlkes’ body were unidentified, because they were indisputably
contraband. 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—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.
UNITED STATES V. FOWLKES 19
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.
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.
C.
Finally, numerous jurisdictions have concluded in similar
circumstances that such warrantless searches violate the
Fourth Amendment. See, e.g., Meeks v. City of Minneapolis,
822 F. Supp. 2d 919 (D. Minn. 2011) (granting summary
judgement 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
20 UNITED STATES V. FOWLKES
(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 (Va. Ct. App. 2000) (holding that a search in
which officer asked suspect to bend over, inspected his anus,
instructed him to cough, then manually removed plastic bag
protruding from suspect’s anus violated suspect’s Fourth
Amendment rights).
The lack of a warrant coupled with the unreasonable and
dangerous methods used during the body cavity search
compel our conclusion that this search violated Fowlkes’s
Fourth Amendment rights and that the district court should
have suppressed the evidence.
III.
Although the district court erred in failing to suppress the
evidence seized from within Fowlkes’s body, it appropriately
denied Fowlkes’s 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
UNITED STATES V. FOWLKES 21
denying him a Franks6 hearing because the affidavit in
support of the wiretap contained material misrepresentations
and omissions. Because any technical deficiencies in the
wiretap application do not warrant suppression and because
Fowlkes’s 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).
6
“[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
Fourth Amendment requires that a hearing be held at the defendant’s
request.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
22 UNITED STATES V. FOWLKES
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.
§ 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
UNITED STATES V. FOWLKES 23
cause.” Franks, 438 U.S. at 155–56. Even if we accept as
true all of Fowlkes’s allegations regarding misstatements and
omissions in Koeppen’s affidavit, Fowlkes must still “show
that the affidavit purged of those falsities and supplemented
by the omissions would not be sufficient to support a finding
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 ounces 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
24 UNITED STATES V. FOWLKES
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’s Cedar
Avenue apartment. Officers intercepted a voicemail
suggesting that Fowlkes paid rent for the apartment. They
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
UNITED STATES V. FOWLKES 25
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
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. 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’s assertion that the affidavit contained
material misrepresentations and omissions is unavailing. As
the district court correctly found, some of Fowlkes’s
allegations lack evidentiary support. The other errors he
points to appear simply to be typographical errors, which do
not alter the substance of the affidavit.
C.
Finally, the district court correctly denied Fowlkes’s
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
26 UNITED STATES V. FOWLKES
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
operating permit on the car Fowlkes was driving, which
provided the basis for the Terry stop. 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 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’s motion to
suppress the evidence found in the car.
UNITED STATES V. FOWLKES 27
IV.
The district court did not clearly err when it found,
following its grant of Fowlkes’s 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).
“[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 citations 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 only able to observe the arrest 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’s 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 a mistrial as a factor
in the district court’s finding that the government lacked the
28 UNITED STATES V. FOWLKES
requisite intent to trigger double jeopardy and prevent a
retrial).
V.
For the foregoing reasons, we affirm in part and reverse
in part. We vacate Fowlkes’s 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.7
AFFIRMED, REVERSED, VACATED, and
REMANDED.
RESTANI, Judge, dissenting in part.
The majority opinion departs from the record presented to
us on appeal to craft a blanket rule that ultimately may prove
difficult to administer, at the expense of jailhouse security.1
7
Because we remand for re-sentencing consistent with this opinion, we
decline to address Fowlkes’s challenge to the propriety of his original
sentence under the Fair Sentencing Act of 2010.
1
As discussed infra, it is difficult to tell at this juncture how the
majority’s new rule will play out, in part because these issues were not
clearly presented below, resulting in a sparse record that does not discuss
statistics involving the frequency of cases like Fowlkes’ within this
particular jail or jail system. The motion to suppress consisted of one
paragraph of argument and one-sentence descriptions of three cases. It
also focused on the visual strip search, mentioning the removal of the
contraband only in passing.
UNITED STATES V. FOWLKES 29
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.2
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.3
One such unfounded speculation is the majority’s
suggestion of a nefarious, pre-search intent of Sergeant Gibbs
Although the majority supports the administrability of its rule by
citing to some statistics, these are not on the record of the present case,
relate to completely different prison systems, and do not address directly
the actual circumstances presented. See Maj. Op. at 11–13.
2
I concur in the reasoning of the majority opinion with respect to all
other issues raised on appeal.
3
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.
30 UNITED STATES V. FOWLKES
to engage in a body cavity search of Fowlkes. See Maj. Op.
at 14. The opinion makes much of the fact that Gibbs “made
his way to the strip search room in the basement4 armed with
his protective gloves, a stun gun taser, and additional
officers.” Id. Not only is this discussion 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).5
The majority also ignores an important fact in describing
the search in this case. 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
4
The strip search room appears to have been on the sixth floor of the
jail.
5
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.
UNITED STATES V. FOWLKES 31
undisclosed plastic baggie, and b) it was almost certainly
drugs.6 Officer Harris described the bag 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 they were confronted with an exigent
circumstance.” Maj. Op. at 10. 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.
6
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
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.
32 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 a warrant was
required.
“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.
Here, Fowlkes was strip 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.”7 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 v. Wolfish, 441 U.S. 520, 547 (1979)) (noting that
7
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).
UNITED STATES V. FOWLKES 33
prison policies must be evaluated in the light of the prison’s
primary objective of institutional security).
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. The majority here
ignores the applicability of the special needs exception,
summarily dismissing this assertion. Although King involved
government needs and privacy intrusions different from the
ones present in this case, it demonstrates that the analysis
should focus on the balance between the government’s needs
and the individual’s privacy concerns, instead of merely a
determination that a bodily intrusion occurred.8 The
government’s interests were particularly strong here where
contraband that needed to be seized came into plain view
during the booking process, and there was a reasonable
concern that Fowlkes would attempt to destroy the evidence.
Additionally, when contraband is revealed during a lawful
strip search initiated to prevent the introduction of
contraband, there are few, if any, facts for a magistrate to
8
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 above, 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.
34 UNITED STATES V. FOWLKES
consider. See King, 133 S. Ct. at 1969–70 (“The need for a
warrant is perhaps least when the search involves no
discretion that could properly be limited by the ‘interpolation
of a neutral magistrate between the citizen and the law
enforcement officer.’” (quoting Treasury Emps. v. Von Raab,
489 U.S. 656, 667 (1989)) (brackets omitted)). The
contraband here was already in plain sight; this is not a
situation where a magistrate must consider various facts to
determine the likelihood evidence will be found in a
particular place before the intrusion occurs. Cf. Schmerber,
384 U.S. at 770 (noting a magistrate should determine the
likelihood that evidence of guilt will be found before a search
occurs). This simply is also not a case where the search
requires the government to probe inside the subject’s body
cavity based on the belief that contraband might be concealed
inside.
Additionally, because contraband includes any
unauthorized item, Florence, 132 S. Ct. at 1519, the officers
have no discretion to permit the unauthorized object,
protruding or otherwise, in the jail. The officers also have no
discretion to decide who will be subject to such a search
because all felony arrestees classified for entry into the
general population are subject to the visual search, and the
officers have no control over which visual search will reveal
protruding contraband. Cf. Al Haramain Islamic Found., Inc.
v. U.S. Dep’t of Treasury, 686 F.3d 965, 992–93 (9th Cir.
2012) (finding special needs exception did not apply in part
because seizure at issue was not limited to a “well-defined”
class of persons, such as probationers or public employees).
Similarly, because the type of search here occurs only after
contraband is revealed in plain sight during a lawful strip
search, there is little concern that this type of search will
occur randomly or arbitrarily. See Skinner v. Ry. Labor
UNITED STATES V. FOWLKES 35
Execs.’ Ass’n, 489 U.S. 602, 621–22 (1989) (noting a warrant
can help assure individuals that a search is not random or
arbitrary). Thus, in the present context, a warrant serves little
purpose because the presence of contraband is readily
apparent, there are no facts for a magistrate to weigh in
deciding the probability that contraband will be discovered,
and the officers are provided no discretion in deciding
whether to recover the contraband.9
The argument that a warrant is required because there is
an intrusion into the body implicates only the first step in the
analysis, i.e. whether a search occurred, and the majority fails
to articulate sufficiently why the balancing test under the
special needs exception should weigh in Fowlkes’ favor,
given the relatively minimal additional invasion10 of privacy
caused by the removal of the plastic bag and the
government’s heightened interest in recovering the
contraband that was already protruding. 11 Thus, I believe the
9
Fowlkes argues that a magistrate could ensure that the procedure is
performed in a medically appropriate manner. Magistrates are accustomed
to making probable cause determinations and may not possess the medical
expertise necessary to determine in a reasonable amount of time what
manner of search is medically appropriate. Garnering specific medical
evidence seems inconsistent with the standard ex parte procedure.
10
I do not read the majority’s opinion as taking issue with the clearly
established rule that a visual strip search, even without suspicion of
concealment, is permissible under these circumstances. See Florence,
132 S. Ct. at 1515, 1518.
11
For this reason, I find the majority’s reliance on the series of cases
cited on pages 19–20 of its opinion to be inapposite, as they are outside of
the jail context, do not deal with facts analogous to the present case, or do
not engage in the balancing test required under the special needs
exception. Under Bull, these cases are distinguishable because “[c]ases
36 UNITED STATES V. FOWLKES
lack of a warrant did not render the search here, including the
removal of the protruding plastic bag, a violation of the
Fourth Amendment.
III.
Although the majority appears to conclude that the search
was per se unreasonable without a warrant, it goes on to
examine, in dicta, the reasonableness of the method of
seizure.
Under the Fourth Amendment, “[e]ven if a warrant is not
required, a search . . . must be reasonable in its scope and
manner of execution.” King, 133 S. Ct. 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).12 To determine the reasonableness
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.
12
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
UNITED STATES V. FOWLKES 37
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 which it is conducted.” Bell,
441 U.S. at 559.
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.13 At the same time, the context of the search
diminished Fowlkes’ reasonable expectation of privacy. 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
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.
13
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).
38 UNITED STATES V. FOWLKES
inspection revealed the contraband in plain sight. Given the
government’s interest in preventing the introduction of
contraband into the facility, I believe that while 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.
Here, 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, 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
UNITED STATES V. FOWLKES 39
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)).
On the suppression record before us, which demonstrates
the object was removed without any intrusion into the anal
cavity,14 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 or adopt the apparent blanket rule of the
majority prohibiting all such extractions.15
14
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, the need for medical
training is less relevant when a protruding object is removed than when
the discovery and removal of an object requires penetration and probing
of the anal or rectal cavity.
15
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
40 UNITED STATES V. FOWLKES
IV.
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”16
of recovering the contraband alluded to by the majority. See
Maj. Op. at 19. The majority mentions these alternatives only
with respect to its conception of a reasonable method of
seizure, and not its requirement that the officers obtain a
search warrant prior to removing protruding objects from
body cavities. 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
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.
16
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 41
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
was readily available to assist the officers in removing the
baggie and what she would have done differently. Without
such information, I am hesitant to impose the blanket rule
apparently endorsed by the majority that all removals of
protruding objects must be performed by medical personnel,
even when the detainee is noncompliant during a strip search.
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
Turner 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.