- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 08-25-2014
- Case #: 11-50273
- Judge(s)/Court Below: Circuit Judge Wardlaw for the Court; Circuit Judge Murguia; Partial Dissent by Judge Restani
- Full Text Opinion
Mark Tyrell Fowlkes was arrested when marijuana and cocaine base was found in a vehicle Fowlkes was driving. Fowlkes was transported to Long Beach City Jail where Sergeant Michael Gibbs conducted a strip search witnessed by five officers. During the search, Fowlkes made some hand movements near his anus, which caused some of the officers to suspect he had something inside his rectum. After Fowlkes was handcuffed and tased, the officers observed an apparent plastic bag within Fowlkes’s rectum. Wearing plastic gloves, Gibbs removed a plastic bag containing drugs from Fowlkes’s rectum. Fowlkes was convicted of drug possession with the intent to distribute and drug distribution. On appeal, the surviving issue is whether the forcible removal of the plastic bag from Fowlkes’s rectum violated Fowlkes’s Fourth Amendment rights because the officer had no medical training and had not obtained a warrant. The Ninth Circuit held that the forcible removal of drugs from an arrestee’s body cavity requires a warrant and, that personnel with medical training execute the warrant. Here, Gibbs did not obtain a warrant although no exigent circumstances were present because Fowlkes was arrested, detained within the police department, handcuffed, and observed by several officers. Additionally, the facts do not indicate a medical emergency threatened Fowlkes’s health. In fact, Gibbs violated the jail’s body cavity search policy because he lacked the appropriate training and failed to use sanitary conditions. The motion to suppress the evidence collected as a result of the body cavity search should have been suppressed because the search violated Fowlkes’s Fourth Amendment rights. AFFIRMED, REVERSED, VACATED, and REMANDED.