United States v. Mark Fowlkes
804 F.3d 954
9th Cir.2015Background
- DEA and Long Beach PD intercepted calls and surveilled Mark Fowlkes in Sept 2006, leading to arrests and searches of his apartment (2.6g cocaine, scale, handgun) and a traffic stop where drugs were observed in his car.
- At jail intake after a September 13 arrest, officers conducted a strip/visual cavity search; Sgt. Gibbs observed a plastic bag partly protruding from Fowlkes’ rectum.
- Gibbs tased Fowlkes, who was handcuffed and restrained by five officers, then—without medical personnel, warrant, lubricant, or anesthesia—manually extracted the bag; photos showed blood on the bag.
- Fowlkes was indicted on drug and firearm counts; he moved to suppress wiretap evidence, apartment and car searches, and the contraband taken from his body; the district court denied suppression and convicted him on drug counts after retrial.
- On appeal the Ninth Circuit majority affirmed all rulings except it held the forcible extraction from Fowlkes’ rectum was an unreasonable manner of seizure under the Fourth Amendment, requiring suppression of that evidence, vacating the related conviction and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Legality of rectal extraction/seizure | The manual removal of an unidentified item from Fowlkes’ rectum by non-medical officers, without warrant or exigency and accompanied by a taser, was physically invasive and unreasonable under the Fourth Amendment | Officers argue the item was visible/protruding during a permissible visual cavity search, posed a risk of destruction, and removal by hand was minimal and reasonable in jail-intake context | Majority: Seizure was unreasonably conducted (considering scope, manner, and lack of exigency/medical safeguards); evidence must be suppressed; conviction on that count vacated. Dissent: removal was minimal, non-probing, and reasonable given institutional security. |
| 2) Wiretap technical defects / Franks hearing | Fowlkes contended the wiretap application had technical/signature errors and omissions justifying suppression or a Franks hearing | Government: affidavit satisfied Title III requirements; any technical signature discrepancy is not a substantial statutory defect; Franks not warranted because alleged misstatements wouldn’t negate probable cause | Held: Denial of suppression and denial of Franks hearing affirmed. |
| 3) Warrantless entry to apartment / warrant probable cause | Entry/search of apartment was unlawful and warrant lacked probable cause | Government: intercepted calls gave probable cause and showed exigent circumstances to prevent destruction of evidence; warrant later supported by magistrate | Held: Denial of suppression affirmed; entry and warrant supported by probable cause and exigency. |
| 4) Traffic stop and vehicle search | Traffic stop and search violated Fourth Amendment | Government: stop valid for traffic violation; plain view of suspected drugs and collective knowledge provided probable cause for vehicle search under automobile exception | Held: Denial of suppression affirmed; stop and vehicle search were lawful. |
Key Cases Cited
- Schmerber v. California, 384 U.S. 757 (U.S. 1966) (bodily intrusions implicate heightened Fourth Amendment concerns; medical procedures by non‑medical personnel are problematic)
- Bell v. Wolfish, 441 U.S. 520 (U.S. 1979) (searches of detainees must be reasonable in scope and manner; abusive searches impermissible)
- Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc) (suspicionless visual body cavity searches at intake may be permissible given practical security needs)
- Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (U.S. 2012) (blanket strip/search policies for detainees entering detention facilities upheld under reasonableness/administrative concerns)
- United States v. Cameron, 538 F.2d 254 (9th Cir. 1976) (manner of extracting contraband from a detainee’s body must minimize physical and emotional trauma; method can render an otherwise justified seizure unreasonable)
- United States v. Edwards, 666 F.3d 877 (4th Cir. 2011) (removal method—using a knife to cut a bag tied to an arrestee—was unreasonable and posed unnecessary risk)
- Maryland v. King, 133 S. Ct. 1958 (U.S. 2013) (even when a warrant isn’t required, searches must be reasonable in scope and manner)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (procedural standard for requiring an evidentiary hearing when affidavit contains alleged deliberate or reckless falsehoods)
- United States v. Chavez, 416 U.S. 562 (U.S. 1974) (not all technical Title III defects mandate suppression; suppression requires failures that substantially implement statutory protections)