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February 13, 2012 in
[Dr. Emmette] Flynn stated that he did not ask for Gray’s consent for the proctoscopic exam and that at the time he made the decision, he had not reviewed the search warrant or Gray’s medical history. For Gray’s proctoscopic exam, two sedatives (Versed and Etomidate) were administered to Gray intravenously. Though the doctors later testified at the suppression hearing that the risks associated with the sedatives were low, Gray was placed on a number of monitors to measure Gray’s cardiovascular status during the examination. The sedatives carry with them a risk of respiratory depression or arrest. Proctoscopy also has associated risks, including pain and potential anal bleeding or perforation. Flynn admitted that proctoscopic exams are usually not conducted on uncooperative patients. At the time that the doctors decided to perform the proctoscopic exam, there were other less intrusive means available to try to recover the suspected drugs, including a cathartic or an enema—neither of which would have involved sedation.
Dr. Emmette Flynn’s search was unreasonable (“the proctoscopy here was a greater affront to Gray’s dignitary interest than full-on exploratory surgery”), but the seizure by the police of the fruits of the search was permissible under the good-faith exception.
Fifth Circuit opinion here.
Disgusting.
So what’s to stop the government from having this done again in the future? “Good faith” is one of the biggest holes in the Fourth Amendment — maybe not the biggest, but one of them.
The Fifth Circuit should just label their “good faith” and “harmless error” analysis as the “Well, He Was Guilty Anyway” analysis. Same same.
This ruling is absolutely nuts. But it isn’t surprising coming from the 5th circuit, which has probably had more of its rulings reversed than any other appeals courts. One would think they would be embarrassed by so many reversals and start using common sense to arrive at their decisions.
Please excuse my ignorance on my following question as I don’t practice criminal law:
Because there is now a ruling stating the proctoscope was an unreasonable search, will it let later defendants beat the good-faith exception?
That’s an excellent question. And since it meshes so well with Rick Horowitz’s, I am going to give him a chance to answer it.
Theoretically, yes, but I don’t think it will, in practice. For another, the “good faith” loophole means that if some judge is — how shall we put this delicately — “inattentive” enough to sign off on the warrant, but without “abandoning his judicial role,” then how can the cops be blamed for relying upon it?
So the trial-level judge ignores the new case law; the cops get to rely on the fact that the judge signed the warrant; and, as here, the appellate court doesn’t want to let the bad guy get away.
That’s why I’m saying “good faith” is one of the biggest holes in the Fourth Amendment. Theoretically, there are exceptions to the “good faith” rule, but in practice, they don’t seem to get much traction.
That was supposed to say “for one thing,” not “for another.” Sorry for not proof-reading better. I’ve been working on a writ all day and I’m tired.
I’m with James. My experience with good faith in federal law comes mostly in the area of reasonable state actors’ beliefs in qualified immunity analysis. It seems to me (and I am probably wrong) that the Court is saying a proctoscopic exam is an unreasonable search in light of available and less invasive procedures, but a reasonable police officer could have thought it was reasonable so it’s okay, just don’t do it again.
I am more interested in the strip searches of the other prisoners. What was the justification for those searches? (I don’t think it is mentioned in the opinion; I’m just asking what you think.)
Justification? They’re prisoners.
I’m really not trying to be flip, but when you say “They’re prisoners“, does that mean the Fourth Amendment does not apply, or does it mean any search is per se reasonable?
I was being flippant. The Supreme Court is considering the issue. Florence v. Board of Chosen Freeholders.
That is the most disgusting appellate opinion I have ever read in my live, both literally and figuratively, if that police conduct does not warrant suppression, then I have no idea whwat would!