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State v. Brown

Supreme Court of Minnesota

August 14, 2019

State of Minnesota, Respondent,
v.
Guntallwon Karloyea Brown, Appellant.

          Court of Appeals Office of Appellate Courts

          Keith Ellison, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County Attorney, Minneapolis, Minnesota, for respondent.

          Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

         SYLLABUS

         1. When 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.

          2. The 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.

         Reversed and remanded.

          OPINION

          THISSEN, JUSTICE.

         This 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.

         FACTS

         On 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.

         During 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."

         The 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."

         The 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.

         The 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[1] 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."

         After 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, [2]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 refused.

         The 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 reply.

         After 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.

         Dr. 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.

         Dr. 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.

         Although 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 (1985).

         In its 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).

         Brown 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.

         ANALYSIS

         The 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, § 10.[3] "[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).

         If a 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).

         I.

         We 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.

         The 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.[4] No one single factor is dispositive.

         Under 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.[5] We turn to applying the Winston balancing test to the forced anoscopy of Brown.

         II.

         A.

         The 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 766.

         An 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.

         We 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.

         The 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 reasonable.

         We 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.[6]Cf. Winston, 470 U.S. at 765 ("When conducted with the consent of the patient, surgery . . . is ...


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