State v. Brown, A17-0870

• Decision Date: 29 May 2018
• Docket Number: A17-0870
• Citation: 915 N.W.2d 896
• Parties: STATE of Minnesota, Respondent, v. Guntallwon Karloyea BROWN, Appellant.
• Court: Minnesota Court of Appeals

915 N.W.2d 896

STATE of Minnesota, Respondent,
v.
Guntallwon Karloyea BROWN, Appellant.

A17-0870

Court of Appeals of Minnesota.

Filed May 29, 2018
Review Granted August 7, 2018

Lori Swanson, Attorney General, St. 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 Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Connolly, Judge.

HALBROOKS, Judge

On appeal from his conviction of fifth-degree possession of a controlled substance, appellant argues that the district court erred by denying his motion to suppress evidence removed from appellant’s rectum by a medical doctor. Appellant argues that the medical procedure was unreasonable under Winston . We affirm.

FACTS

In the course of a narcotics investigation focused on crack cocaine, Minneapolis police

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set up a controlled buy from appellant Guntallwon Karloyea Brown. After a successful purchase by a confidential informant, officers observed Brown make two hand-to-hand transactions with third parties. During a subsequent investigative stop, an officer saw Brown "shoving his hands down his pants," which suggested that he might be concealing something. Brown was arrested.

At the police station, police observed Brown "grinding his buttocks" against his chair in a back and forth motion. Brown then stood up, straddled the chair rail, and ground his butt cheeks into it. An officer told Brown to stop, believing that he was "attempting to jam narcotics up his rectum." After moving Brown into an interview room, the officer observed Brown "taking his hands and shoving ... kind of between his legs, shoving upwards." Based on his training and experience, the officer believed that Brown was trying to insert something into his rectum. A strip search revealed clear plastic sticking out of Brown’s anus. Based on all of the above information, police applied for and obtained a warrant authorizing a search of Brown’s person and transported him to North Memorial Hospital to execute it. In the emergency department, Christopher Palmer, M.D., performed an external body search and did not see anything protruding from Brown’s anus. Dr. Palmer offered Brown a liquid laxative, but he refused it. After consulting the hospital’s legal counsel, Dr. Palmer declined to administer a laxative or perform any procedure to remove the suspected narcotics without Brown’s consent.

Police then applied for and obtained a more specific search warrant from the same district court judge who had granted the first warrant. The second warrant expressly authorized hospital staff to "use any medical/physical means necessary to have Brown vomit or defecate the contents of his stomach or physically by any means necessary remove the narcotics from the anal cavity so Officers can retrieve the narcotics." Police transported Brown to the emergency department at Hennepin County Medical Center (HCMC), where Paul Nystrom, M.D., reviewed the warrant and consulted the hospital’s legal counsel about his rights and obligations. Dr. Nystrom understood the warrant to authorize the removal of the narcotics through any medically reasonable means but not to compel him to act if he was ethically opposed. His assessment was that leaving cocaine in the rectum had the potential to cause serious complications or death, but that no medical emergency existed at the time.

Dr. Nystrom offered Brown four options to remove the suspected narcotics: (1) Brown could remove the bag himself, (2) Dr. Nystrom could administer an enema,¹ (3) Dr. Nystrom could sedate Brown and perform an anoscopy, or (4) Dr. Nystrom could put Brown on a ventilator and insert a nasogastric tube to deliver a laxative that would "eventually clear his bowels." After explaining the different procedures and associated risks, Dr. Nystrom recommended options one or two. Dr. Nystrom told Brown that if he did not select an option, they would proceed with a sedated anoscopy. Brown remained silent.

After giving Brown time to consider his options, and because the first two options required Brown’s participation, which was not forthcoming, Dr. Nystrom elected to proceed with the third option—sedation and anoscopy. Dr. Nystrom concluded that, absent Brown’s cooperation, anoscopy was the safest and most conservative means of removal. He described the procedure

915 N.W.2d 899

as the insertion of a speculum in the rectum to allow inspection of the four quadrants. The procedure is typically done to look for internal bleeding or hemorrhoids, but can also be used to remove a foreign body. Dr. Nystrom explained that the speculum is "like the size of a large bowel movement, so it’s not comfortable," but it allows visualization of "whatever it is you’re worried about." The procedure takes "a couple of minutes," and then the speculum is removed. He testified that although sedation is not always required for anoscopy, relaxation makes the procedure, "less painful, less uncomfortable."

After another medical doctor sedated Brown intravenously with Propofol, Dr. Nystrom inserted the anoscope and conducted a visual inspection, but he did not immediately see anything. Taking a second look, he saw the edge of a plastic bag. Using Magill forceps, Dr. Nystrom removed the bag and handed it to police. Later testing confirmed that the bag contained 2.9 grams of crack cocaine.

The state charged Brown with fifth-degree crack-cocaine possession under Minn. Stat. § 152.025, subd. 2(a)(1) (2014). Brown moved to suppress the evidence, arguing that the procedure by which the cocaine was removed violated his constitutional right against unreasonable searches and seizures. At a Rasmussen hearing, Dr. Palmer and Dr. Nystrom both testified. The district court denied Brown’s suppression motion, applying the three-factor Winston test and concluding that, although it was a close call, the procedure was reasonable under the circumstances. After a jury trial, Brown was convicted. This appeal follows.

ISSUE

Under the circumstances presented in this case, did an unconsented sedated anoscopy violate Brown’s right to be free from unreasonable searches?

ANALYSIS

Brown argues that the district court erred by denying his motion to suppress the crack-cocaine evidence, reasoning that under the Supreme Court’s decision in Winston , the anoscopy procedure was an unreasonable search. In reviewing a district court’s pretrial ruling on a suppression motion, appellate courts review factual findings for clear error and legal determinations de novo. State v. Gauster , 752 N.W.2d 496, 502 (Minn. 2008).

The United States Constitution and the Minnesota Constitution prohibit unreasonable searches and seizures. U.S. Const. amend. IV ; Minn. Const. art. I, § 10. "The Fourth Amendment protects expectations of privacy." Winston , 470 U.S. at 758, 105 S.Ct. at 1615 (quotation omitted). "[T]he ultimate touchstone of the Fourth Amendment is reasonableness." Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (quotation omitted). The Fourth Amendment does not forbid all bodily intrusions. Winston , 470 U.S. at 760, 105 S.Ct. at 1616. But some bodily intrusions implicate expectations of privacy of such a magnitude that a search may be unreasonable even if it is supported by probable cause. Id. at 759, 105 S.Ct. at 1616. The Fourth Amendment’s "proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Id. at 760, 105 S.Ct. at 1616.

Assuming threshold probable-cause and search-warrant requirements are met,² Winston...