of Appeals Office of Appellate Courts
Ellison, Attorney General, Saint Paul, Minnesota; and Michael
O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt,
Assistant County Attorney, Minneapolis, Minnesota, for
Cathryn Middlebrook, Chief Appellate Public Defender,
Jennifer Workman Jesness, Assistant State Public Defender,
Saint Paul, Minnesota, for appellant.
determining whether a search conducted within a person's
body is reasonable, a court considers the extent to which the
procedure may threaten the safety or health of the person,
the extent of the intrusion upon the person's dignitary
interests in personal privacy and bodily integrity, and the
community's interest in fairly and accurately determining
the guilt or innocence of the individual.
extreme and substantial intrusion of appellant's
dignitary rights by a coerced anoscopy and the risks that the
procedure posed to appellant's health and safety outweigh
the community's interest in retrieving potential evidence
that appellant possessed a controlled substance.
case requires us to determine whether a body cavity search
performed by forcing the appellant to be strapped down and
sedated and to undergo an invasive anoscopy against his will
was reasonable under the Fourth Amendment to the United
States Constitution. We conclude that forcing appellant
Guntallwon Karloyea Brown to undergo an anoscopy against his
will and under sedation in the presence of nonmedical
personnel is a serious invasion of Brown's dignitary
interests in personal privacy and bodily integrity that
outweighs the State's need to retrieve relevant evidence
of drug possession. Accordingly, we reverse the court of
appeals' decision. Because we hold that the evidence
retrieved from the search must be suppressed, we remand to
the district court for a new trial.
August 8, 2015, the Minneapolis Police Department was
investigating the sale of crack cocaine by utilizing a
confidential informant. The police and the confidential
informant set up a controlled buy from Brown. Officers gave
the confidential informant buy money and the confidential
informant successfully bought a quantity of crack cocaine
from Brown. The police later observed Brown perform a
hand-to-hand transaction with a third party. After witnessing
the transaction, the police arrested Brown for selling drugs.
the arrest, a police officer witnessed Brown "shoving
his hands down his pants, possibly concealing
something." After Brown was transported to the station
house, officers saw Brown "grinding his buttocks against
the seat [of a chair]" in a "back and forth
motion," "grinding his cheeks into the chair
rail," and "taking his hands and shoving-kind of
between his legs, shoving upwards."
police officer observing Brown had handled "multiple
cases where [individuals] conceal narcotics and contraband
down their pants," and Brown's behavior led the
officer to believe that he "was attempting to jam
narcotics up his rectum." After getting approval from
his supervisor, the officer conducted a strip search of
Brown. During the strip search, the police "looked
between [Brown's] cheeks" and saw "a clear
plastic [b]aggie sticking out of [Brown's] anus."
The officer, believing this baggie contained an undetermined
amount of crack cocaine, decided that a body-cavity search
was required and applied for a search warrant. The
application "request[ed] a warrant to transport Brown to
a medical facility and have the baggie removed" from
Brown's rectum. A judge signed a warrant and authorized a
search "ON THE PERSON OF BROWN."
officer took Brown to North Memorial Hospital to remove the
baggie. Brown was first given the option of removing the
baggie himself. He refused. Officers then presented the
warrant to Dr. Christopher Palmer, an emergency-room doctor.
Dr. Palmer, after consulting with a lawyer for North
Memorial, did an external body search of Brown, including the
anal area. Dr. Palmer did not see the baggie. Dr. Palmer
offered Brown a laxative to remove the drugs. Brown refused.
police then asked Dr. Palmer to force Brown to take the
laxative. Dr. Palmer refused to do so. Dr. Palmer also
refused to perform an anoscopy as requested by the police or to
call another doctor who might perform the anoscopy. Dr.
Palmer refused any interventions beyond the external search
because he did not feel that the warrant allowed the
procedure. Dr. Palmer did tell the officers that he was
"willing to comply with any Court order that
specifically designated the appropriate interventions."
Dr. Palmer refused to perform medical procedures based on the
first warrant, the officer who requested the first warrant
wrote a more specific warrant and decided to take Brown to a
different hospital. The second warrant, signed by the same
judge, authorized a search of "THE DESCRIBED
PERSON" and directed hospital staff to "use any
medical/physical means necessary to have Brown vomit or
deficate [sic] the contents of his stomach or physically by
any means necessary remove the narcotics from the anal cavity
so Officers can retrieve the narcotics." (Emphasis
added.) The officer testified that he added this language
because he is not a doctor and does not know any specific
medical terms. He therefore used the phrase "any means
necessary" so the doctor could decide how to remove the
drugs safely. The police took Brown to Hennepin County
Medical Center (HCMC), showed both warrants to Brown, and
again requested that he remove the drugs himself. Brown
police then presented the warrant to Dr. Paul Nystrom, an
emergency-medicine doctor at HCMC. Dr. Nystrom spoke with the
on-call deputy county attorney from the civil division of the
Hennepin County Attorney's Office who advised Dr. Nystrom
that he could execute the warrant. Dr. Nystrom gave four
options to Brown: (1) Brown could remove the baggie himself;
(2) Dr. Nystrom could administer an enema, which would give
Brown the urge to defecate; (3) Dr. Nystrom could perform an
anoscopy with Brown under sedation; or (4) Dr. Nystrom could
sedate Brown, place him on a ventilator, and intubate him
with a nasogastric tube through which a laxative could be
pumped into Brown's stomach to clear his bowels. Dr.
Nystrom told Brown that the first two options were
preferable, but required his cooperation. Brown did not
speaking with Brown a number of times and explaining the four
options, Dr. Nystrom told Brown that he was going to leave
the room and begin preparations for the sedation and
anoscopy. When Brown further refused to speak, even after
being given additional time to consider his options, Dr.
Nystrom proceeded to perform the anoscopy. There is no
dispute that Brown was of sound mind and could make his own
medical decisions and give his own consent to any procedure.
Nystrom had the hospital staff strap Brown down and place an
I.V. to administer a sedative. While sedation was not
necessary to perform the anoscopy, Dr. Nystrom felt it should
be used "to make [the anoscopy] less painful, less
uncomfortable." There is no suggestion that the sedative
was administered because Brown was uncooperative. After
moving Brown to a procedure room, Dr. Nystrom placed a
speculum into Brown's rectum and examined his anal
cavity. The doctor described the speculum as "not
comfortable." Two officers remained in the room and
watched the intrusion into Brown's body cavity. Dr.
Nystrom was able to locate the plastic baggie and remove it
with a special type of forceps. The forceps is "like a
pinchers of some sort that has . . . a five- to six-inch arm
on it that opens and closes." The doctor gave the baggie
to the police, which law enforcement test results later
showed held 2.9 grams of cocaine. Dr. Nystrom and the nursing
staff did not observe any bleeding, tearing, or abrasions
caused by the procedure.
Nystrom testified that he understood the language used in the
search warrant- "any means necessary"-to mean
"[a]nything reasonable, any reasonable means
necessary." Importantly, Dr. Nystrom testified that
"normal elimination" (waiting for the baggie to
come out through natural processes) could be used and that no
medical emergency existed when the procedure was performed.
he was originally arrested for selling drugs, the State
ultimately charged Brown with one count of fifth-degree
possession of a controlled substance, Minn. Stat. §
152.025, subd. 2(1) (2018). Brown moved to suppress the
evidence of the drugs at an evidentiary hearing and raised a
number of constitutional objections. Relevant to our review
here, he argued that the search, even though conducted
pursuant to a valid search warrant, was unreasonable. Brown
relied on the balancing test announced by the Supreme Court
of the United States in Winston v. Lee, 470 U.S. 753
order, the district court noted that "there is a certain
odiousness twisted up with the thought of police using the
immense power of the government to literally invade a
person's body," and such "unease is only
aggravated when the judiciary paints its imprimatur on this
kind of action by sanctioning it with . . . a warrant."
But, after analyzing the facts using the Winston
framework, the district court concluded that despite
"the extreme intrusiveness of the police action here . .
. on balance, the scales tip in favor of allowing the
evidence." After a jury trial, Brown was convicted of
fifth-degree drug possession under Minn. Stat. §
152.025, subd. 2(1).
appealed his conviction. The court of appeals, after
independently evaluating the Winston factors, agreed
with the district court that the anoscopy was a reasonable
search. State v. Brown, 915 N.W.2d 896, 903
(Minn.App. 2018). We granted Brown's petition for review.
Fourth Amendment guarantees the "right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const.
amend. IV; see also Minn. Const. art. I, §
"[T]he ultimate touchstone of the Fourth Amendment is
reasonableness." Riley v. California, 573 U.S.
373, 381 (2014) (citation omitted) (internal quotation marks
omitted). Searches "which are not justified in the
circumstances, or which are made in an improper manner,"
are not reasonable. Winston, 470 U.S. at 760
(citation omitted) (internal quotation marks omitted).
search was unreasonable, the evidence obtained during the
search is not admissible in court. State v. Rhode,
852 N.W.2d 260, 263 (Minn. 2014) ("Evidence obtained
from an unreasonable search in violation of the Fourth
Amendment is inadmissible." (citing Mapp v.
Ohio, 367 U.S. 643, 655 (1961))); see also State v.
Mathison, 263 N.W.2d 61, 63 (Minn. 1978). When reviewing
a pretrial order on a motion to suppress, we "review the
district court's factual findings under [a] clearly
erroneous standard . . . [and] review the district
court's legal determinations . . . de novo."
State v. Milton, 821 N.W.2d 789, 798 (Minn. 2012).
begin with a discussion of Winston because it is the
case that sets the framework for the question presented. In
Winston, the United States Supreme Court considered
whether a state may compel a suspect in an attempted armed
robbery to undergo surgery to obtain evidence of a crime
contained within the suspect's body. 470 U.S. at 758. The
case arose from an attempted robbery. The alleged robber,
Lee, was shot by his intended victim during the robbery and
the bullet lodged underneath his skin beneath his left
collarbone. Id. at 755-56. The State sought to
recover the bullet to demonstrate that the bullet had been
fired from the gun used by Lee's intended victim.
Id. at 765. The State sought a court order to
surgically remove the bullet as evidence of Lee's guilt.
Id. at 756.
Court concluded that surgery to remove the bullet was an
unreasonable search under the Fourth Amendment. Id.
at 766. The Court observed that intrusions into the body are
different from other searches and implicate the "most
personal and deep-rooted expectations of privacy."
Id. at 760. "A compelled surgical intrusion
into an individual's body for evidence . . . implicates
expectations of privacy and security of such magnitude that
the intrusion may be 'unreasonable' even if likely to
produce evidence of a crime." Id. at 759.
Accordingly, the Court stated that "[t]he reasonableness
of surgical intrusions beneath the skin depends on a
case-by-case approach, in which the individual's
interests in privacy and security are weighed against
society's interests in conducting the procedure."
Id. at 760. It set forth a three-factor balancing
test calling for consideration of (1) "the extent to
which the procedure may threaten the safety or health of the
individual," (2) "the extent of intrusion upon the
individual's dignitary interests in personal privacy and
bodily integrity," and (3) "the community's
interest in fairly and accurately determining guilt or
innocence." Id. at 761-62. No one single
factor is dispositive.
the Fourth Amendment, the Winston balancing test is
the appropriate framework for analyzing whether a search of a
body cavity using an invasive medical procedure like an
anoscopy is reasonable. We turn to applying the
Winston balancing test to the forced anoscopy of
first Winston factor assesses the extent of the risk
of the procedure to Brown's health and safety.
Winston, 470 U.S. at 761. The Supreme Court has said
that "[n]otwithstanding the existence of probable cause,
a search for evidence of a crime may be unjustifiable it if
endangers the life or health of the suspect."
Id. In Winston, the Court described a
spectrum of harm ranging from the relatively limited risk of
the blood draw in Schmerber v. California, 384 U.S.
757, 771-72 (1966) (holding that taking the petitioner's
blood did not violate petitioner's Fourth Amendment right
to be free from unreasonable searches), to the indeterminate
health and safety risk in Winston of an exploratory
surgery to recover the bullet. Winston, 470 U.S. at
anoscopy poses health and safety risks to the patient
including potential bleeding, tearing, and bowel perforation,
though the risks of a properly performed anoscopy are
minimal. If the procedure had injured Brown, the injury would
have been obvious to the doctor and could have been handled
immediately. But because minor health and safety risks do
exist, this factor tips slightly in Brown's favor.
disagree with the dissent that a low-level health risk favors
the State or a finding of reasonableness. Even a low-level
risk is still a risk to the suspect. A lower risk to safety
and health simply means the factor does not weigh heavily in
favor of the suspect and offers only slight support to a
conclusion that the search was unreasonable. Stated another
way, our task is to weigh the protected interests of the
suspect-avoiding risks to health and safety and preserving
fundamental individual dignity-against the need of the State
to obtain evidence. The fact that a search method poses a low
risk to health or safety does not weigh in favor of a
conclusion that a search is reasonable; it weighs against
such a conclusion.
State argues that we should also consider the potential
health and safety risks of the baggie breaking and causing an
overdose. It asserts that those risks weigh in favor of
conducting the anoscopy and a conclusion that the search was
disagree. The focus of the first Winston factor is
on the risk the procedure poses to the suspect. The
State erroneously confuses the risk of the baggie rupturing
with the risk of the medical procedure. The decision to
undergo an invasive procedure to avoid a medical risk rested
solely with Brown who was alert and fully capable of
consenting to the anoscopy.Cf. Winston, 470 U.S. at
765 ("When conducted with the consent of the patient,
surgery . . . is ...