Lead Opinion
Opinion by Judge WARDLAW; Partial Dissent by Judge RESTANI
ORDER
Appellee’s January 22, 2015 Petition for Panel Rehearing is GRANTED. Accordingly, the Opinion and Partial Dissent filed on August 25, 2014 are withdrawn, and a new opinion and partial dissent are filed. See Fed. R.App. P. 40(a)(4)(A).
OPINION
Mark Tyrell Fowlkes appeals his conviction for drug distribution and possession with intent to distribute. 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’ rectum by officers without medical training or a warrant violated his Fourth Amendment rights. Because we conclude that the evidence obtained from this brutal and physically invasive seizure should have been suppressed, we vacate Fowlkes’ conviction in part, vacate his sentence, and remand to the district court.
I.
A.
Drug Enforcement Administration (“DEA”) agents and Long Beach Police Department (“LBPD”) officers obtained warrants for wiretaps on two phones (Target Telephones # 1 and # 2) in July and August of 2006. On September 3, 2006, officers intercepted communications pursuant to the wiretap, which led them to conclude that Fowlkes was arranging a drug deal. Based on that information, LBPD officers placed Fowlkes under surveillance and witnessed what appeared to be a drug deal between Fowlkes and two other individuals, Shaun Lee and Elaine Watson. Lee walked away from the deal, but officers stopped him and fоund he possessed 0.61 grams of crack cocaine.
On September 4, 2006, the LBPD and DEA intercepted several more phone calls, leading them to conclude that Fowlkes was planning to destroy or remove contraband from his apartment. Within an hour of the last phone call, officers arrived at the apartment. Upon entry, they saw Fowlkes and another individual, Latoya Marshall, as well as a 9mm handgun. The officers handcuffed Fowlkes and Marshall and conducted a protective sweep of the apartment. After securing a warrant, officers searched the apartment and found approximately 2.6 grams of crack cocaine, a digital scale, and the loaded 9mm handgun. Fowlkes was subsequently released from police custody.
On September 13, 2006, after witnessing what appeared to be a narcotics transac
At intake, the officers strip searched Fowlkes in the jail’s strip search room, a five by six enclosure with three concrete walls and. an opening in the fourth wall. Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and “assistance” in the form of additional officers because he thought Fowlkes might have drugs. The officers instructed Fowlkes to remove his clothing and face the far wall as they watched him. Fowlkes was instructed to bend over, spread his buttocks, and cough, but according to Sergeant Gibbs, Fowlkes instead moved his hand toward his right buttock. Instructed to repeat the procedure, Fowlkes made a quick movement to his buttocks area with his hand and appeared to Gibbs “to be forcing or forcibly pushing an item inward.” Officer Harris testified that he believed it was possible Fowlkes was attempting to push something into his anus. However, he did not actually see any object Fowlkes could have been pushing, and he acknowledged that there was no other way for Fowlkes to comply with the directive other than by reaching back and putting his fingers towards his anus. For his part, Sergeant Gibbs testified that he saw an object protruding from Fowlkes’ anus and that he believed Fowlkes appeared “to be forcing or moving an object or further secreting an object” inside his rectum to destroy evidence.
To prevent that, Gibbs “delivered a drive stun tase to the center portion of the defendant’s back.” Fowlkes’ arms went straight into the air, and the officers handcuffed him. Fowlkes began to “squirm[ ]” and “struggle],” and the officers “lean[ed] him against the wall, ... brace[d] his body up against the wall” so that “[h]e end[ed] up being bent over.” With Fowlkes in this position, the officers testified that they could see what appeared to be a plastic bag partially protruding from Fowlkes’ rectum.
Officers continued to “brac[e] [Fowlkes] up against the wall” to prevent him from resisting. At this point, Fowlkes was handcuffed and incapacitated by five male officers. Fowlkes had no ability to destroy or further secrete what was in the plastic bag. Neither Sergeant Gibbs nor the other officers could tell what, if anything, the plastic bag contained while it remained in Fowlkes’ rectum. Nor could they determine how large it was or how far it extended into Fowlkes’ body. Despite this, and despite the fact that none of the officers had any relevant medical training, the officers did not attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally. Instead, Sergeant Gibbs forcibly “retrieved” the bag. He put on the protective gloves he had brought along to the “search” and pulled the object from Fowlkes’ rectum without the assistance of anesthesia, lubricant, or medical dilation. Sergeant Gibbs testified that he was able to remove the object using his thumb and index finger without penetrating Fowlkes’ anal cavity. Officer Harris testified that the removal itself was a difficult, abrasive procedure:
I watched the entire process of him removing it in his fingers. [The object] went from a dime size to a penny size to a nickel size to a quarter size to somewhat near a golf ball size as it was taken out.
Officer Harris further testified that he could “see blood and what looked to be feces” on the plastic bag after it had been removed. Photographs of the object that are included in the appellate record confirm that the object was covered in blood.
B.
On June 6, 2008, the government filed an indictment charging Fowlkes with three counts of drug possession and distribution and two related firearm counts. Before trial, Fowlkes moved to suppress all of the evidence obtained in the case pursuant to the wiretap, the evidence seized from the searches of his apartment and car, and the drugs found within his person during the body cavity search at the jail. The district court denied each of these motions.
On July 8, 2008, a jury trial commenced, but it ended two days later when Fowlkes requested a mistrial after Federal Marshals arrested a key defense witness outside of the courtroom doors, but within earshot and possible view of the jury. Fowlkes subsequently filed a motion to dismiss the indictments on double jeopardy or due process grounds because the government’s misconduct had goaded him into requesting the mistrial. On September 17, 2008, the district court denied the motion.
On November 4, 2008, Fowlkes’ retrial began, and on November 20, the jury found Fowlkes guilty of the three drug-related counts. The court sentenced Fowlkes to time served (forty-six months) and supervised release for eight years.
Fowlkes claims the district court erred by denying his motions to: (1) suppress the evidence obtained through the wiretaps because the application for the warrant was technically deficient, and, at the least, the district court should have held a Franks hearing; (2) suppress evidence seized from his apartment because the officers’ warrantless entry was unlawful and the warrant authorizing the search was unsupported by probable cause; (3) suppress the cocaine base and marijuana seized from his car because the initial stop and subsequent search of his car whs unlawful; (4) suppress the evidence extracted from his rectum at the jail because this evidence was retrieved in an unreasonable manner, in violation of his Fourth Amendment rights; (5) dismiss the indictment on a claim of evidence tampering;
We affirm the district court’s rulings except the denial of Fowlkes’ motion to suppress the cocaine seized from within his body at the Long Beach City Jail. We therefore reverse the conviction on the count predicated on that evidence.
II.
“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley,
A.
The LBPD’s warrantless visual strip search of Fowlkes during the jail intake process was not unreasonable. The government has a strong interest in preventing cоntraband from entering its prisons and jails, and in the jail intake process, we have recognized that “adherence to the warrant-and-probable cause requirement would be impracticable.” Friedman v. Boucher,
Similarly, in Florence v. Board of Chosen Freeholders, — U.S.-,
By contrast, searches that require intrusion into a person’s body implicate greater constitutional concerns. See Bouse v. Bussey,
Here, the LBPD officers went beyond the visual cavity search found reasonable in Bull. They seized an unidentified object of unknown size from Fowlkes’ rectum, subjecting him to a physically invasive, painful experience and thereby implicating his “most personal and deep-rooted expectations of privacy.” Lee,
B.
Having properly framed the officers’ conduct as a warrantless, physically invasive seizure of actual (not merely suspected) contraband, we must determine whether that conduct was unreasonable under the Fourth Amendment. We conclude that it was.
In reaching this conclusion, we need not and do not determine whether a warrant is required to seize evidence discovered during a visual strip search from an inmate’s body because the officers’ conduct here was unreasonable for other reasons. As the Supreme Court recently reiterated, “[e]ven if a warrant is not required, а search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.” Maryland v. King, — U.S. -,
The scope of the seizure intruded beyond the surface of Fowlkes’ body, interfering with his bodily integrity. As the Supreme Court explained in Schmerber, “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity agаinst unwarranted intrusion by the State.”
Likewise, the manner in which this seizure was conducted supports the conclusion that it was unreasonable. In making this determination, we consider a variety of factors including hygiene, medical training, emotional and physical trauma, ánd the availability of alternative methods for conducting the search. See Vaughan v. Ricketts,
As an initial matter, the officers violated the jail’s own written policy for body cavity searches by failing to remove the evidence “under sanitary conditions” and by not using a “Physician, Nurse Practitioner, Registered Nurse, Licensed Vocational Nurse, or Emergency Medical Technician.” There is no evidence that any of the officers had mеdical or any other relevant training on how to safely remove suspicious objects from an arrestee’s rectum or how to evaluate whether such removal could cause serious physical harm or death.
We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentarysort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
In Cameron, then-judge Anthony M. Kennedy explained that Cameron, like Fowlkes, was in a humiliating and dangerous situation: “[T]he person accused of concealing contraband within his body is faced with the real prospect that the most intimate portions of his anatomy will be invaded and that he will suffer resulting pain or even physical harm.”
After detailing the unique dangers, fears, and concerns faced by detainees like Fowlkes, we held that the process for removing suspected contraband from a detainee’s body, “if it is to comport with the reasonableness standard of the fourth amendment, must be conducted with regard for the subject’s privacy and be designed to minimize emotional and physical trauma.” Id. We further clarified that “[i]n a situation thus laden with the potential for fear and anxiety, a reasonable search will include, beyond the usual procedural requirements, reasonable steps to mitigate the anxiety, discomfort, and humiliation that the suspect may suffer.” Id.
Here, the LBPD officers did not take adequate steps to minimize Fowlkes’ physical trauma. They did not, for example, use lubrication or ensure that the removal was conducted under sanitary conditions; they did not seek the guidance or assistance of medical pеrsonnel; and they did not assure themselves that removing the object from Fowlkes’ rectum was safe— indeed they did not know the size, shape, or substance of the object. Further, they did nothing to mitigate his anxiety or emotional trauma. They did not, for example, offer him options for removing the contraband or secure his compliance; they did not (and could not) assure him that the removal was safe or being conducted by a trained professional; and they did not (and could not) assure him that the procedure was legal and in keeping with LBPD policy rather than an arbitrary show of force.
Far from taking steps to minimize physical harm and mitigate anxiety, as required by Cameron, the officers’ actions potentially increased the physical and emotional trauma Fowlkes suffered. Despite undisputed testimony by the officers themselves that Fowlkes posed no threat, much less an immediate threat to himself or the officers, and was not a flight risk (he was naked, bent over, and in handcuffs at the time), Sergeant Gibbs used a stun-gun ta-
These aсtions stand in stark contrast to the conduct found reasonable in Schmerber and are much more like the conduct found unreasonable by the Fourth Circuit in Edwards. In Schmerber, the Court explicitly considered that the blood draw in question “involves virtually no risk, trauma, or pain,” and that it “was performed in a reasonable manner” because “blood was taken by a physician in a hospital environment according to accepted medical practices.”
As in Edwards and Cameron, the officers here should have done more to “allay the anxieties and concerns of the suspect,” and should have considered “less intrusive means of obtaining the evidence.” Cameron,
Moreover, although we do not hold that a warrant was required, we must “consider that the government failed to obtain a warrant” in “evaluating the reasonableness of the manner in which the search [or seizure] was conducted.” Cameron,
Just as the scope of the intrusion into Fowlkes’ privacy and the manner in which the seizure was conducted suggest that the officers acted unreasonably, the justifications- — or lack thereof — for seizing the evidence in the chosen manner reinforce our conclusion that the officers acted unreasonably. See Cameron,
Similarly, the record contains no evidence that a medical emergency existed. See Cameron,
Further, the practicability concerns underlying Bull and Florence are absent here. While we have approved suspicion-less visual strip searches in the prison intake context given the government’s need to keep contraband out of prisons
The relatively small numbers of inmates concealing contraband in their body cavities undercuts any argument that it would be impractical to take additional “steps to mitigate the anxiety, discomfort, and humiliation that ... suspeet[s] [like Fowlkes] may suffer.” Cameron,
In the end, the LBPD conducted a warrantless forcible seizure of an unidenti-fled item of unknown size from Fowlkes’ rectum by non-medical personnel who (1) did nothing to assure that the removal was safe and performed under sanitary conditions; (2) were aided by the use of a taser but not by lubricant; (3) seized the object in the absence of exigent circumstances; and (4) acted in violation of LBPD policy. No single factor is dispositive, but under the totality of the circumstances presented here, we conclude that the manner of this seizure was unreasonable. See Cameron,
C.
Finally, numerous jurisdictions have concluded in similar circumstances that such warrantless conduct violates the Fourth Amendment. See, e.g., Meeks v. City of Minneapolis,
This persuasive authority reinforces our conclusion that the seizure of evidence from Fowlkes’ rectum, under the totality of the circumstances, violated his Fourth Amendment rights, and that the district court therefore should have suppressed the evidence.
III.
Although the district court erred in failing to suppress the evidence seized from within Fowlkes’ body, it properly denied Fowlkes’ remaining motions.
A.
Fowlkes asserts that an apparent discrepancy between the person who prepared the government’s application for the wiretap and the person who signed it renders the interception of the wire communications “unlawful” and mandates suppression of any evidence obtained as a result of that wiretap. At a minimum, he claims the district court erred in denying him a Franks
Title III of the Omnibus Crime Control and Safe Streets Act of 1.968, 18 U.S.C. §§ 2510-2520, governs wiretapping by law enforcement. United States v. Garcia-Villalba,
Here, any technical deficiency éaused by one AUSA signing for another does not constitute a failure to satisfy such a statutory requirement. The affidavit prepared by Agent Jonathan Koeppen in support of the wiretap application satisfies the statutory requirements of 18 U.S.C. § 2518(1)—it was prepared in writing by an investigative or law enforcement officer, it stated Koeppen’s authority to make an application, it provided a full and complete statement of the facts and circumstances relied upon, and it was signed under oath. We have previously implied that an affidavit attached to a wiretap application can fulfill the requirements of 18 U.S.C. § 2518(1) in lieu of the application itself. See Garcia-Villalba,
The only statutory requirement that Koeppen’s affidavit failed to meet was to identify the officer authorizing the application, as required under 18 U.S.C. § 2518(1)(a). The Supreme Court, however, has held that misidentification of the authorizing officer in the wiretap application is not a technical deficiency that requires suppression. Chavez,
The district court did not err in denying a Franks hearing because Fowlkes has not shown that “the allegedly false statements] [were] necessary to the finding of probable cause.” Franks,
B.
Fowlkes also asserts that the district court erred in denying his motion to suppress the 2.6 grams of cocaine seized from his apartment because the officers’ war-rantless entry was unlawful and the warrant authorizing the search was unsupported by probable cause. As the district court correctly found, however, probable cause coupled with exigent circumstances justified the officers’ warrantless entry, and the warrant itself was supported by probable cause. See United States v. Alaimalo,
Probable cause justifying a warrantless entry requires the government to show a “fair probability that contraband or evidence of a crime” was in the residence. Illinois v. Gates,
Exigent circumstances include “those circumstances that would cause a reasonable person to believe that entry ... was necessary to prevent ... the destruction of relevant evidence.” United States v. Howard,
Finally, the magistrate judge did not clearly err in finding probable cause sufficient to support the search warrant for the apartment. See United States v. Krupa,
C.
Finally, the district court correctly denied Fowlkes’ motion to suppress the cocaine base seized from his car. An officer may conduct a traffic stop if the officer has “probable cause to believe that a traffic violation has occurred.” Whren v. United States,
The search of the car was likewise appropriate under the automobile exception to the warrant requirement, which allows police officers to “conduct a war-rantless search of a vehicle if they have probable cause to believe that it contains contraband.” United States v. Pinela-Hernandez,
IV.
The district court did not clearly err when it found, following its grant of Fowlkes’ request for a mistrial, that the government had not “goad[ed]” him into making the request. See United States v. Lun,
Fowlkes asserts that the government’s conduct in arresting Marshall, a witness who had just testified for the defense, immediately outside the courtroom doors and within sight and hearing of the jury, goaded him into requesting the mistrial. The trial court, after two days of evidentia-ry hearings, found it could not “conclude that the arrest of Ms. Marshall was done in bad faith or with the intention to secure a mistrial.” The evidence supports the district court’s finding “that the government did not intentionally effectuate Ms. Marshall’s arrest so as to bring it to the attention of the jury.” Indeed, the jury
V.
For the foregoing reasons, we affirm in part and reverse in part. We vacate Fowlkes’ conviction and sentence on Count V, which was predicated on the drugs unconstitutionally seized from his body cavity, and remand for rе-sentencing consistent with this decision.
AFFIRMED, REVERSED, VACATED, and REMANDED.
Notes
. Because the evidence found within Fowlkes’ body was seized in an unreasonable manner and thus should have been suppressed, we need not resolve Fowlkes' other allegations of discovery violations or chain of custody issues pertaining to that evidence.
. Whether the officers' conduct here is labeled a "search” or a "seizure” is immaterial to the legal analysis. We use the term "seizure” because Sergeant Gibbs saw a plastic bag protruding from Fowlkes’ anus and had probable cause to believe it was contraband. Thus, there was no need for a "search” as that word is commonly understood; all that remained was to seize evidence that had already been found. We have in some opinions, including Cameron, referred to this conduct as a search. Semantics aside, this case is like Cameron because the officers’ actions are challenged not because the officers lacked sufficient certainty that evidence was located inside Fowlkes’ body, but instead because, even assuming sufficient certainty, the manner of removing the evidence was unreasonable. Where the probability of finding evidence in the place to be searched is at issue,
. The dissent argues that, in the absence of medical testimony regarding the dangers presented by the seizure here, we can only speculate about medical necessity. Dissent at 975, n. 8. While there is no testimony on the issue, however, LBPD policy suggests that when physical intrusion into a body cavity is necessary, medical personnel, rather than LBPD officers, should perform the task.
. As the dissent correctly notes, we have applied Schmerber to both visual and physical body cavity searches. See Fuller v. M.G. Jewelry,
.The dissent suggests that it is immaterial that the materials lodged inside of Fowlkes' body were unidentified, because they were indisputably contraband. See Dissent at 972-73. But knowing that an object is contraband is not the same as knowing the object can be safely removed. The officers' lack of information about the object-its precise size, shape, and texture; whether the surrounding plastic was abraded; whether the inside of Fowlkes' rectal cavity was injured; and whether the substance inside could potentially poison him-highlights the heightened “personal risk” inherent in the physical search. See Schmerber,
. To be clear, our holding does not preclude touching of the defendant or seizure of contraband from a suspect’s rectum in all cases. As in Edwards, we hold only that the particular manner of seizing evidence employed by the LBPD in this case was unreasonable.
. These facts show that Gibbs had time to take additional precautions, and thus they are relevant in assessing the objective reasonableness of Gibbs’ conduct.
. The dissent contends that Gibbs' testimony constitutes evidence from which officers might reasonably have inferred that the evidence protruding from Fowlkes’ anus woúld be destroyed if they did not seize it. Dissent at 973. Gibbs’ testimony, however, only proves that he subjectively believed evidence might be destroyed if he did not seize the baggie quickly; the record remains devoid of evidence suggesting that Gibbs’ subjective belief was objectively reasonable.
. "[A]dvances in the 47 years since Schmerber was decided ... allow for the more expeditious processing of warrant applications, particularly in contexts ... where the evidence offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based оn sworn testimony communicated by telephone .... And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications.... ” McNeely,
. The Government has not argued that the instant Fourth Amendment violation warrants a remedy other than suppression, so we do not consider alternative sanctions for the officers' conduct.
. "[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks v. Delaware,
. Fowlkes was sentenced to time served with an eight-year term of supervised release, of which he has served approximately four years. The district court made this term subject to a review of the Fair Sentencing Act of 2010. We therefore decline to reach Fowlkes’ challenge to the propriety of his original sentence under the Fair Sentencing Act of 2010, and leave that issue in the hands of the district court.
Dissenting Opinion
dissenting in part.
Because I believe the facts found by the district court, which the majority does not contend were clearly erroneous, render the warrantless search and seizure rеasonable under the totality of the circumstances, I dissent from the majority’s decision to suppress the evidence seized during the jailhouse search.
I.
The majority begins its discussion of the present case by choosing to describe the facts surrounding the jailhouse search in the most unfavorable light, at times engaging in wholesale speculation, to portray this case as one involving brutal, unnecessary police action. I believe it is helpful to clarify some of the more important factual considerations in order to fairly lay out the context the court must consider in evaluating the reasonableness of the police actions at issue.
The majority opinion makes much of the fact that Gibbs “brought along his taser, gloves and ‘assistance’ in the form of additional officers because he thought Fowlkes might have drugs” and “retrieved a taser from his vehicle and put on latex gloves.” See Maj. Op. at 958-59, 965-66. Not only is this insinuation of an improper pre-search intent irrelevant under the objective test used to evaluate the reasonableness of the search, but Gibbs provided testimony, which the trial court appeared to credit, plausibly explaining all of his actions. Gibbs testified that he wore
The majority also downplays an important fact in describing the search in this case. See id. at 961-62. 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. Instead, testimony from Officer Harris made clear that the officers knew that the object protruding from Fowlkes’ body cavity was unmistakably contraband for two reasons: a) it was an undisclosed plastic baggie, and b) it was almost certainly drugs.
Finally, the majority asserts that “the record is devoid of any evidence from which the officers might reasonably have inferred that evidence would be destroyed if they took the time to secure a warrant and summon medical personnel.” Id. at 966. Contrary to this assertion, Gibbs testified during the evidentiary hearing on the motion to suppress that he was concerned the evidence could be destroyed or adulterated by Fowlkes. In fact, Gibbs explained that during past searches, he had witnessed defendants, who had secreted drugs into their body cavities, attempt to crush and swallow them during the strip search. Moreover, Gibbs explained that it was not uncommon for arrestees to become physically violent in order to prevent recovery of the contraband once it fell out. Thus, contrary to the majority’s conclusion, Gibbs’ testimony indicates that it was objectively reasonable to believe that Fowlkes might destroy the evidence. See Maj. Op. at 966 n. 8.
II.
Having set out the facts, tethered to the record before us, I turn now to the majority
Under the Fourth Amendment, “[e]ven if a warrant is not required, a search ... must be reasonable in its scope and manner of execution.” Id. at 1970. The reasonableness analysis is fact-intensive and requires considerations of issues such as privacy, hygiene, and the training of those conducting the search. See Vaughan v. Ricketts,
Although the majority is correct that under Schmerber v. California,
Additionally, unlike in Carpenter,
The only evidence on the record suggesting that the removal caused Fowlkes any pain or discomfort is a picture of the plastic bag after it was removed, which shows substances that appear to be blood and feces on the bag. Fowlkes argues the officers planted the plastic bag in the strip search room and denied that it was recovered from his body cavity. Thus, there is no testimony from Fowlkes as to the existence of the plastic bag inside of him or the manner of its removal, and thеre is nothing on the record demonstrating that the possible presence of blood on the bag was caused by the officers’ conduct, as opposed to Fowlkes’ own conduct of forcing the plastic bag into his anal cavity, or his attempt to push the bag further into his anal cavity during the search. See Thompson v. Souza,
At the same time, the context of the search diminished Fowlkes’ reasonable expectation of privacy and provided a strong justification for the search. Here, Fowlkes was strip searched pursuant to a blanket LBPD policy that all individuals
On the suppression record before us, which demonstrates the object was removed without any intrusion into the anal cavity,
For the reasons above, I believe the seizure of the small baggie of obvious contraband during a constitutionally permissible strip search of a criminal detainee was reasonable under the totality of the circumstances. In concluding, however, it is worth passing upon the “alternative methods”
I suppose the officers could have placed Fowlkes in an isolation cell, handcuffed, partially clothed, and under constant surveillance, allowing them to respond immediately when the baggie worked its way the other inch or so out of Fowlkes’ body. This hardly seems to be, per se, a less intrusive or offensive condition in which to place a detainee. See, e.g., Montoya de Hernandez,
With respect to removal, certainly a medical professional is -always preferable, but it remains a mystery whether one was readily available to assist the officers in removing the baggie and what he or she would have done differently. Without such information and based on the totality of the circumstances, the lack of medical personnel did not render the seizure unreasonable. See Florence,
Accordingly, I respectfully dissent.
. I concur in the reasoning of the majority opinion with respect to all other issues raised on appeal.
. Of course, as an appellate court, we are not to engage in independent fact finding, deferring instead to the findings of the district court unless they are clearly erroneous. In seemingly making new factual findings, the majority appears dissatisfied with the lack of clear factual findings in the district court's order. If this is so, the remedy would be to remand to the district court, not to engage in our own weighing of the disputed facts, without the benefit of live testimony.
. The majority's statement that Fowlkes posed no threat at all to the officers simply is not supported by the record, although it was acknowledged that Fowlkes was not physically aggressive, only verbally aggressive, prior to the search. Maj. Op. at 964-65.
. Contraband refers to any unauthorized item, not just illegal items, including lighters, matches, currency, and pens. See Florence v. Bd. of Chosen Freeholders, -U.S.-,
. As the majority notes at footnote 2, whether a police action is termed a “search” or a "seizure” is immaterial to the legal analysis. Accordingly, the dissent uses the terms interchangeably.
. In Fuller v. M.G. Jewelry, we stated that Schmerber's reference to “intrusions into the body" applies to "all searches that invade the interior of the body ... [including] a visual intrusion into a body cavity.”
. The majority relies on the Fourth Circuit’s opinion in United States v. Edwards,
. In Carpenter, two judges concurred in the two sentence per curiam opinion to limit the holding to the particular facts of that case. See
. My views are not directed to any due process claim in a separate action under 42 U.S.C. § 1983, stemming from the officers’ failure to follow the jail’s own regulations. See Marsh v. Cnty. of San Diego,
. For this reason, I find thе majority’s reliance on the series of cases cited on pages 962-63 of its opinion to be inapposite, as they are outside of the jail context and do not deal with facts analogous to the present case. Under Bull, these cases are distinguishable because "[cjases that address searches of arres-tees at the place of arrest, searches at the stationhouse prior to booking or placement in a holding cell, or searches pursuant to an evidentiary criminal investigation do not control our review.”
. The removal of a protruding object raises different, and less grave, considerations for health than when contraband is fully inserted inside a cavity and can only be located and removed through digital penetration and probing. The actual probing for the inserted object may itself cause medical harm distinct from the removal of the item, and the officers may have no idea as to its shape, size, or location. Thus, without evidence we cannot assume a need for medical training when a protruding object is removed.
.Additionally, the facts in this case do not include those that we found, when combined with others, render the manner of removing an item unreasonable. For example, in Vaughan, we found a digital rectum search was performed unreasonably when conducted on an unsanitary table by medical assistants who were not trained in involuntary rectal searches, the assistants did not wash their hands between searches, and the search was visible to other inmates and prison personnel, including female prison officials. Vaughan,
. As the majority concedes, the existence of a less-intrusive alternative "does not, in itself, render the search unreasonable.” United States v. Montoya de Hernandez,