728 F.3d 535 (6th Cir. 2013), 11-6311, United States v. Booker

Docket Nº:11-6311
Citation:728 F.3d 535
Opinion Judge:ROGERS, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FELIX BOOKER, Defendant-Appellant
Attorney:Robert L. Jolley, Jr., JOLLEY & ELDRIDGE, Knoxville, Tennessee, for Appellant. Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. Robert L. Jolley, Jr., JOLLEY & ELDRIDGE, Knoxville, Tennessee, for Appellant. Alexandra Hui, UNITED STATES ATTORNEY'S OFFICE, Kno...
Judge Panel:Before: GILMAN, GIBBONS, and ROGERS, Circuit Judges. ROGERS, J., delivered the opinion of the court, in which GILMAN, J., joined. GIBBONS, J., delivered a separate dissenting opinion. JULIA SMITH GIBBONS JULIA SMITH GIBBONS, Circuit Judge, dissenting.
Case Date:August 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 535

728 F.3d 535 (6th Cir. 2013)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

FELIX BOOKER, Defendant-Appellant

No. 11-6311

United States Court of Appeals, Sixth Circuit

August 26, 2013

Argued: October 9, 2012.

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:10-cr-44-1--Robert Leon Jordan, District Judge.

ARGUED:

Robert L. Jolley, Jr., JOLLEY & ELDRIDGE, Knoxville, Tennessee, for Appellant.

Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Robert L. Jolley, Jr., JOLLEY & ELDRIDGE, Knoxville, Tennessee, for Appellant.

Alexandra Hui, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: GILMAN, GIBBONS, and ROGERS, Circuit Judges. ROGERS, J., delivered the opinion of the court, in which GILMAN, J., joined. GIBBONS, J., delivered a separate dissenting opinion.

OPINION

Page 536

ROGERS, Circuit Judge.

Felix Booker was convicted of possession of a five-ounce rock of crack cocaine,

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which he had hidden in his rectum. Police officers, reasonably suspecting that Booker had contraband hidden in his rectum, took Booker to an emergency-room doctor. The doctor, using a procedure that Booker did not consent to, intubated Booker for about an hour, rendered him unconscious for twenty to thirty minutes, and paralyzed him for seven to eight minutes. Using a finger, the doctor found and removed the crack cocaine, and turned it over to the police. Even though the doctor may have acted for entirely medical reasons, the unconsented procedure while Booker was under the control of the police officers must, in the circumstances of this case, be attributed to the state for Fourth Amendment purposes. The unconsented procedure, moreover, shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process. The evidence resulting from the procedure should accordingly have been excluded, and Booker's conviction must be reversed.

I.

At approximately 11:50 a.m. on August 12, 2010, Daniel Steakley, a K-9 officer with the Oak Ridge Police Department (" ORPD" ), pulled over a car with expired tags. William Booker, the defendant's brother, drove the car; Felix Booker rode in the front passenger's seat. While speaking with William Booker, Steakley smelled marijuana. William Booker denied that there were illegal drugs in the car and told Steakley he was free to search the vehicle. Prior to conducting the search, Steakley went to the police cruiser to check William Booker's driver's license status and to ascertain the existence of any outstanding warrants with the police dispatcher. As Steakley did so, he noticed Felix Booker " moving around, as if he was attempting to conceal something." This was not the first encounter between Felix Booker and Steakley. In 2009, Steakley had arrested Booker and recovered thirteen bags of marijuana that Booker hid in his crotch.

After completing the driver's license and outstanding warrants checks, Steakley utilized his trained drug-sniffing dog. The dog alerted near the front passenger-side door of the car where Felix Booker was seated. Steakley asked Booker to exit the car and patted him down. During the search, Steakley noticed that Booker " cl[e]nched his butt[ocks] together" when he patted him in that area, but the pat-down produced no drugs. However, Steakley did feel two large bulges in Booker's pockets which turned out to be large amounts of currency. During the search of the front passenger's seat, Steakley recovered three small plastic bags: one that contained .06 grams of marijuana, another that contained " a green plant-type residue," and a third covered with a " powder residue." Steakley also noticed marijuana " ground up into the floor" of the passenger-side seat.

Steakley arrested Felix Booker for felony possession of marijuana, despite being unable to recover enough marijuana to justify such an arrest under Tennessee law. See Tenn. Code Ann. § 39-17-418(b) ( defining marijuana possession below 14.175 grams as a misdemeanor offense); § 40-7-118(b)(1) ( authorizing citation, but not arrest, when an officer witnesses a misdemeanor). Steakley handcuffed Booker with his hands behind his back and placed him in the cruiser of another ORPD officer, Lewis Ridenour, so that Booker could be taken to the police station. Ridenour left the scene at approximately 12:19 p.m. The officers allowed William Booker to depart without issuing a citation for his expired plates and without trying to recover the marijuana in the floorboard.

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Ridenour and Booker arrived at the police station at 12:21 p.m., followed shortly thereafter by Steakley. Steakley placed Booker in an interview room at the station. After Steakley read Booker his Miranda rights, Booker offered to forfeit the money Steakley found in Booker's pockets in order to be released on citation, while claiming that he earned the cash pouring concrete. Ridenour also noticed that Booker was " fidget[ing] and try[ing] to put his hands in the back of his pants," prompting Ridenour to move Booker's handcuffs from his back to his front. When Ridenour stepped out of the interview room for a moment, Booker slammed the door shut and leaned against the door to barricade it. Ridenour, Steakley, and a police sergeant forced themselves into the interview room and wrestled Booker to the ground to regain control over him. The officers searched the room for contraband, patted down Booker a second time, and shook his pants by pulling them up until they were loose and jarring them to dislodge any articles jammed " inside of his pants or in [his] boxers." The officers did not find anything.

Ridenour next took Booker to the Anderson County Detention Facility in Clinton, Tennessee, arriving at approximately 1:20 p.m. According to Ridenour, Booker fidgeted throughout the drive. Upon arrival, Ridenour discussed Booker's situation with Jerry Shelton, a sheriff's deputy. The detention facility did not have a policy of strip searching all new detainees, and there is no indication whether Booker was going to be placed in the general population of the facility. However, based on suspicion, Shelton agreed to strip search Booker to determine if he was concealing contraband in his buttocks. Shelton and another officer took Booker into a small room where newly booked inmates typically showered, asked him to remove his clothing, and performed a visual inspection of his body. Shelton asked Booker to bend over and spread his buttocks; when Booker complied, Shelton claimed he could see " a small string protruding from [Booker's] anus." Id. at 109. After Shelton asked Booker about the object, Booker moved his hand to cover the area and tried to push the object further into his rectum. This led to another altercation during which Booker had to be restrained by officers. Shelton's supervisor ordered him to take Booker to a hospital immediately.

At 2:28 p.m., sheriff's deputies transported Booker to Methodist Medical Center in Oak Ridge. Booker was shackled and covered only in a blanket because the officers did not believe there was sufficient time to get him dressed. Shelton rode in the backseat alongside Booker, and said Booker was " squirmish" and " trying to go to the rear end of his body and force something further up into" his rectum. In the meantime, Officer Steakley had traveled separately to the hospital. Before Booker arrived, Steakley told Dr. Michael LaPaglia, the attending physician in the emergency room, that Steakley strongly suspected that Booker had drugs in his rectum.

This was not the first time that officers had brought a suspect to LaPaglia so that he could perform a digital rectal examination, that is, a procedure in which a physician inserts a finger into the patient's anus to probe the rectum. This was the third time that officers with the Anderson County Sheriff's Department had sought LaPaglia's assistance with this type of procedure within three years.

At 2:50 p.m., the cruiser arrived at the hospital. Although Booker denied having anything in his rectum, had no physical symptoms, and had normal vital signs, LaPaglia proceeded without waiting. According

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to LaPaglia, the possibility of an individual hiding drugs in his rectum raised " a number of concerns" because " [t]he rectum is a part of the body that absorbs drugs very readily," and at a high dosage, such absorption may be fatal. LaPaglia asserts that this is true even when a person does not initially manifest symptoms of drug absorption, since " the drug could possibly not be absorbed enough at that time for [a physician] to see any signs of the drug." In the presence of Steakley, Ridenour, Shelton, and an unnamed officer, LaPaglia " explained to [Booker] what my position was as an emergency physician and that there was suspicion that he had some sort of drug in his rectum and that as an emergency physician I had to assure that he did not, and if he did, that I had to remove it because his life could be in danger."

Booker--still naked and handcuffed--denied hiding drugs in his rectum and refused to submit to a digital rectal examination. LaPaglia replied that Booker " really did not have a choice because if my suspicion was high enough to think that he had some sort of dangerous substance in his rectum, then it was my duty to get it out." LaPaglia recalled that the officers did not direct him to do anything to Booker. During the suppression motion hearing, LaPaglia reiterated that his " duty" was medical in nature:

Q. . . . . In a situation where you suspect somebody to have narcotics inside them, can you in such a life-threatening situation take...

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