Monday, October 12, 2015

Case o' The Week: A Gruesome Fowkles Tale - Fowlkes, Fourth Amendment and Body Cavity Searches

 Talk to enough clients, hear enough stories, and we think we know what’s going on behind jail doors.
 We don’t.  United States v. Fowlkes, 2015 WL 5667555 (9th Cir. Sept. 28, 2015) (on panel rehearing), decision available here.

Players:  Decision by Judge Wardlaw, joined by Judge Murgia and Court of Int’l Trade Judge Restani, dissenting in part.

Facts: A wiretap lead feds and cops to Fowlkes. Id. at *1. He was arrested in his apartment, and a gun, cocaine, a scale and .9mm were found. Id. Fowlkes was released from police custody. Id.
  A week or so later, after witnessing an apparent drug sale, cops pulled Fowlkes over for a traffic stop. Id. Asserting they saw drugs, the cops arrested Fowlkes and took him to Long Beach City jail for processing. Id.
   Five officers observed a strip search, where Fowlkes, naked, was told to bend over, spread his buttocks, and cough. Id. Fowlkes instead allegedly made a quick movement towards his buttocks and was forcing or “pushing an item inward.” Id. A sergeant testified that he saw an object protruding from Fowlkes’ anus. Id.
   The officers hit Fowlkes with the taser, he was handcuffed, officers braced him against the wall, and saw what appeared to be a plastic bag partially protruding from Fowlkes’ rectum. Id. at 2. There was no warrant, no medical personnel, no move to a sanitary location, and the officers didn’t allow Fowlkes to pass the item naturally. Instead, Sergeant Michael Gibbs forcibly pulled out a golf-ball sized bag covered in blood. Id. at *2.
  Fowlkes was indicted on drug charges; the district court denied the motion to suppress. Id.

Issue(s): “Fowlkes raises a number of claims on appeal, but only one has merit: that the forcible removal of an unidentified item of unknown size from Fowlkes’s rectum by officers without medical training or a warrant violated his Fourth Amendment rights.” Id. at *1.

Held:Because we conclude that the evidence obtained from this brutal and invasive seizure should have been suppressed, we vacate Fowlkes’ conviction in part, vacate his sentence, and remand to the district court.Id. at *1.

Of Note: The reversal on a gruesome and outrageous jail search overshadows a disappointing Title III holding. Id. at *10. The wiretap statute requires the government to identify the officer authorizing the application: the affiant failed to do so here. Id. at *11. Echoing the Supreme’s decision in Chavez, the Ninth holds that this is “not a technical deficiency that requires suppression.” Id. Yet another fang pulled from the increasingly toothless tiger of Title III statutory requirements.

How to Use: Judge Wardlaw dodges the issue of whether a warrant is required to conduct this type of search. Id. at *5 (but see id. at *8 (considering failure to get a warrant in reasonableness inquiry)). Instead, she lays out in careful detail what it was that made this particular search unreasonable: the fact that it was a cavity search, that it wasn’t done in sanitary conditions, and that no medical personnel were involved. Id. at *5-*6. These searches aren’t illegal per se: instead, they trigger a “totality” reasonableness inquiry. Turn to the detailed Fowkles’ reasonableness inquiry for cavity-search cases: it is the new leading decision in the Ninth.
For Further Reading: Is the Fair Sentencing Act of 2010 retroactive? Back in July of 2011, that was still a hot issue. 
   One of the early defense victories was a pro se litigant, who convinced CD Cal District Judge Snyder that the FSA should apply in his case. The defendant in this early FSA litigation? 
   Mark Tyrell Fowlkes. 
  See United States v. Fowlkes, 2011 WL 2650016 (CD Cal. July 1, 2011) (statement of reasons regarding sentence imposed); see also “Court Holds Fair Sentencing Act’s Sentencing Amendments Retroactive,” available here

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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