Laxatives
Case Analysis
May
24, 2006
The
decision reverses what was a burdensome and unnecessary process for the State
when prosecuting narcotics cases after the defendant swallowed the evidence.
Expert
testimony should not be required to establish the obvious: laxatives are a safe
and effective means of inducing defecation; and the sooner a suspect who has swallowed
narcotics can be induced to defecate, the lesser the risk that the packaging may
rupture, destroying the narcotics and endangering the life of the suspect.
Simple
FDA approval of the laxative in question should be more than sufficient for a
court to find that the laxative is both safe and effective, and that any risk
is “negligible,” as the court in this case found.
The
question is the scope of the following statement by the court: “Although
we conclude that the search in this case was reasonable, this is not to say that
the administration of a laxative in all future cases will be reasonable. It bears
repeating that we arrive at our conclusion based on the totality of circumstances
presented.”
The
court could merely be espousing a general statement of the law — the court
shies away from broad statements of law in Fourth Amendment cases and prefers
to emphasize the “totality of the circumstances” — or it could
be genuinely concerned that future cases will be distinguishable.
The
potential bases for distinguishing the case are few, though. Of course, if the
officers don’t have a probable cause to believe a suspect actually ingested
narcotics, the search could be held unlawful. In such a case, however, the search
would be suppressed because the search was the fruit of an unlawful arrest; application
of the three-factor test in Winston v. Lee, 470 U.S. 753 (1985), would be unnecessary.
As
noted, whatever laxative a particular hospital employs, it is FDA-guaranteed to
be effective and safe. The possibility that the packaging will rupture and the
suspect will overdose as a result will always be present. Chemical inducement
of a bowel movement will always decrease that risk.
The
dissent of Chief Justice Abrahamson suggests some possible bases for distinguishing
the case: “Medical treatment requires an individual approach. Nothing on
the record indicates that the defendant was asked about any medical condition
he might have that might be affected by a laxative, about any allergy to laxatives,
about the nature of the plastic bag, or about its contents.”
Suppose
that a suspect does object to taking the laxative, citing one of these concerns,
without being specifically asked about them.
Clearly,
the suspect wouldn’t have swallowed the package in the first place if its
contents were not illegal; thus, a self-serving statement by the suspect as to
the contents would not be a reasonable ground for distinguishing the case at bar.
A
statement about the nature of the packaging should also be considered irrelevant.
What could the suspect possibly say that would make the search unreasonable? —
“The heroin’s packaging is guaranteed by the manufacturer not to be
dissolved by stomach acid.”? Officers can’t reasonably be expected to
withhold the administration of laxatives because of a self-serving statement of
this nature, either.
That
leaves medical conditions and allergies as the only plausible reasons why the
search would be unlawful.
For
guidance on these questions, a good source for analogy is the decision authorizing
the forcible extraction of blood in all drunk driving cases, State v. Bohling,
173 Wis.2d 529, 494 N.W.2d 399 (1993).
The court
approved warrantless blood draws under the following circumstances: (1) the blood
draw is taken to obtain evidence of intoxication from a person lawfully arrested
for a drunk-driving related violation or crime; (2) there is clear indication
that the blood draw will produce evidence of intoxication; (3) the method used
to take the blood sample is a reasonable one and performed in a reasonable manner;
and (4) the arrestee presents no reasonable objection to the blood draw. Id.,
494 N.W.2d at 400.
As
is apparent, the first three Bohling circumstances roughly correlate to the three-factor
test in Winston. Thus, a strong argument can be made for engrafting the fourth
circumstance onto the Winston test, assuming, as we safely can, that the forcible
administration of laxatives is even more intrusive than a blood draw.
In
actual practice, however, defendants are as unlikely to be successful in actually
presenting a “reasonable objection” to the laxative as they have been
in presenting reasonable objections to blood draws. Thus, while Bohling provides
precedent for arguing that the case at bar may be distinguishable, it will be
a rare case in which it will be applicable.
-
David Ziemer
Click
here for Main Story.
David
Ziemer can be reached by email.
