State v. Palmer
| Decision Date | 27 November 1987 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 751 P.2d 975,156 Ariz. 315 |
| Parties | The STATE of Arizona, Appellee, v. Franklin C. PALMER, Appellant. 4720-2. |
| Court | Arizona Court of Appeals |
Appellant was found guilty by a jury of promoting prison contraband, a class 5 felony. He admitted his prior convictions and the trial court sentenced him to the presumptive term of 5 years' imprisonment, the sentence to be served consecutively to that he was already serving. The contraband consisted of a shotgun shell which had been removed from appellant's rectum.
On appeal, appellant asserts that the shotgun shell constituted the fruit of an illegal and unreasonable search and seizure and that the trial court erred by denying his motion to suppress. He additionally argues that the place and circumstances of the digital searches which preceded the forced extraction of the shotgun shell from his rectum constituted cruel and unusual punishment. We affirm.
Appellant is an inmate at the Arizona State Prison in Florence. The testimony at the evidentiary hearing on appellant's motion to suppress revealed that after intelligence personnel at the prison became aware of explosive contraband in Cell Block Six, the prison administrator was contacted and the intelligence officer received permission to conduct body searches of specific inmates. All 12 inmates, including appellant, in appellant's "pod" of Cell Block Six were to undergo body cavity searches. The intelligence officer testified that he authorized an initial digital rectal search and, if that search revealed the presence of an object, the inmate would be x-rayed. Finally, if the inmate did not voluntarily give up or excrete the object, it would be removed. An initial digital rectal search was performed on appellant by a correctional medical assistant. Appellant was then escorted to a medical examining room where a medical doctor performed a second digital search. During the search, the doctor felt the presence of an object and ordered an x-ray of appellant's pelvic area. The x-ray revealed the presence of a foreign object believed to be a shotgun shell.
Following the x-ray, appellant was transported to the central unit hospital's emergency room. A second doctor, trained in sigmoidoscopy examinations, first performed a rectal examination which consisted of the insertion of a small scope to determine the nature of the foreign object. Appellant refused to submit to that examination and, eventually, was forced to lay on the table by corrections officers. Appellant finally agreed to position himself on the table so that the item could be removed, and the doctor removed the shotgun shell which had been wrapped in tissue paper and a condom. During the procedure, appellant testified that he suffered severe pain and discomfort and, following the removal, he suffered some bleeding.
Searches of other inmates revealed balloons filled with gunpowder and a detonator cord, and subsequent searches led to the discovery of blasting caps and a homemade zip gun capable of shooting a shotgun shell. Other inmates had consented to voluntarily pass or remove the contraband they possessed. One other inmate, who did not immediately excrete his contraband, was placed in an isolation cell and eventually passed a balloon filled with gunpowder.
Appellant complains of the initial digital rectal search, claiming that it was not done in private and that 25 to 30 officers, as well as someone with a video camera, witnessed the search. He also testified that he was not afforded the option to voluntarily pass the contraband, but rather, was subjected to forced removal as an example to persuade the other inmates to volunteer.
Corrections officers testified that the first digital rectal search took place in an area which was not readily visible to other inmates or to persons other than the necessary security personnel. We will not disturb the trial court's ruling on a motion to suppress evidence absent clear error. State v. Wright, 125 Ariz. 36, 607 P.2d 19 (App.1979). Following the evidentiary hearing, it is for the trial court to resolve any factual conflicts in the evidence. State v. Hocker, 113 Ariz. 450, 556 P.2d 784 (1976), overruled on other grounds, State v. Jarzab, 123 Ariz. 308, 599 P.2d 761 (1979). In denying the motion to suppress, the court implicitly determined that the initial probe was performed in accordance with the testimony of the corrections officers. We find no reason to disturb that determination.
Appellant also claims that the manner in which the shell was removed in the emergency room, as well as the refusal of prison personnel to allow him to voluntarily pass it, constituted an unreasonable search and seizure. Again, it was for the trial court to...
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