Search &Seizure: The facts in this case are disturbing because of the body part searched, and therefore the discussion is brief. Police officers arrested George, and when they took him to a hospital for a strip search they observed a bag containing white powder resembling cocaine emerging from his rectum Concealing a bag in the rectum is a common practice among drug addicts and dealers. Based on George’s conduct, an issue arose whether he was experiencing a possible epileptic seizure, but this is a customary diversion tactic among drug users, and police do not ordinarily believe this ruse. Eventually the doctor at the hospital examined George and used a forceps to remove the bag containing cocaine. The doctor testified a rupture of the bag would result in death.
According to the author of the 9th Circuit opinion, who wrote an extensive discussion of the testimony in depositions and discovery (a civil rights suit, not a criminal prosecution) as though he were cross examining the officers and the doctor, he found some discrepancies. (he called them “backtracking”) and that was enough to deny defense motions for summary judgment. This author, who has never tried a criminal case, and does not realize officers cannot remember every detail of an arrest, found the anal search by the doctor non consentual and unreasonable under the Fourth Amendment.
The author ignores the possibility of a death – inducing rupture of the cocaine and informs the doctor and the police how to do their job: do nothing and wait a couple days until the addict moves his bowels; or dies. Characterizing rectal searches as violative of the Fourth Amendment, the author says that in the absence of consent, just wait and see whether the suspect ruptures the bag and dies.
Note: this is the same judge who has rarely voted for a death penalty case and a dissenting judge in Henry v. Ryan, 2014 WL 4440435– an unrelated case now 28 years old. The procedural posture of Henry is preposterous.