By Amanda Bronstad, The National Law Journal

The “brutal and physically invasive” removal of a package containing cocaine during a body-cavity search of a suspected drug dealer without a warrant violated his Fourth Amendment rights, a federal appeals court has ruled.

Mark Tyrell Fowlkes, appealing his conviction on drug charges, claimed that police officers lacking medical training or a warrant forcibly removed a plastic bag of cocaine during the search at a jail in Long Beach, Calif., in violation of his right against unreasonable searches and seizures.

On Monday, a split panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the officers should have had a warrant and that the actual search was unreasonable.

“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,” Judge Kim McLane Wardlaw wrote in the majority opinion.

Thomas Sleisenger of the Law Offices of Thomas P. Sleisenger in Los Angeles, who represents Fowlkes, said the decision should have a “sobering effect on the techniques and protocols the jails use.”

“Hopefully, they’ll look to this case and be more circumspect before they attempt to extract something from someone’s body cavity without considering obtaining a warrant,” he said.

He said the decision, which reversed a portion of his client’s conviction stemming from the jailhouse search, could reduce the eight years of supervised release imposed during sentencing. Fowlkes already has served his prison sentence of three years and 10 months.

Thom Mrozek, a spokesman for the U.S. Attorney’s Office for the Central District of California, which prosecuted the case, declined to comment.

The majority opinion contrasted the case with the U.S. Supreme Court’s 2012 decision in Florence v. Board of Chosen Freeholders, when the court said that warrantless strip searches didn’t automatically run afoul of the Fourth Amendment.

Following his arrest, Fowlkes was taken to a small room with five Long Beach Police Department officers. One officer said Fowlkes was attempting to push drugs into his body cavity just before the search, so he stunned him with a Taser gun. Then the officers handcuffed Fowlkes.

Claiming he could see a plastic bag protruding from Fowlkes’ anus, the officer put on protective gloves to remove it, according to the opinion. The bag, once removed, was covered in blood.

“This case dealt with an actual extraction, so it was definitely unreasonable, if not barbaric,” Sleisenger said. “The problem is that they could see some object, but they didn’t know how large the object was. Turned out the object was a lot larger than they thought.”

In a dissent, U.S. Court of International Trade Judge Jane Restani, sitting by designation, said the search, contrary to the majority opinion’s view, was not a “brutal, unnecessary police action.” Officers did not need a warrant because they had reasonable concerns that Fowlkes was attempting to destroy evidence, she wrote.

“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,” she wrote.

The panel unanimously affirmed rulings denying Fowlkes’ motions to suppress evidence obtained through the use of wiretaps and cocaine seized from his apartment and car. The panel also declined to dismiss the indictment based on double-jeopardy ground following an earlier mistrial.

Photo: Jason Doiy/ALM

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