Giving
laxatives is lawful search
By
David Ziemer
Wisconsin Law Journal
May
24, 2006
| What
the court held Case:
State of Wisconsin v. Tomas R. Payano-Roman, No. 2004AP1029-CR. Issue:
Can police administer laxatives to a suspect they saw ingest a package that they
have probable cause to believe is narcotics, without obtaining a warrant? Holding:
Yes. If the three-factor test in Winston v. Lee is satisfied, such a search is
reasonable. Counsel:
For Plaintiff: Timothy A. Provis; For Petitioner: Stephen W. Kleinmeier. |
The warrantless
administration of laxatives to a suspect to recover a baggie of heroin from his
stool is a search under the Fourth Amendment, but it is a reasonable one.
In
so holding on May 18, the Wisconsin Supreme Court reversed a published decision
of the court of appeals, State v. Payano-Roman, 2005 WI App 118, 284 Wis.2d 350,
701 N.W.2d 72.
In
2002, two Milwaukee County officers were investigating drug trafficking. When
they approached Tomas R. Payano-Roman, who matched an informant’s description
of the trafficker, Payano-Roman put a clear plastic baggie containing a white
substance in his mouth, and swallowed it. Based on the packaging, the officers
believed it was heroin.
An
ambulance conveyed Payano-Roman to a hospital, where staff stated that policy
was to admit the patient, because ingestion could lead to an overdose.
Hospital
personnel administered a liquid laxative for Payano-Roman to drink every 20 to
30 minutes. A portable toilet was provided, and the next morning, Payano-Romano
had a bowel movement in the toilet, while an officer observed.
The
officer examined the stool and recovered a baggie, the contents of which were
later determined to be heroin.
Payano-Roman
was charged with possession of heroin, and moved unsuccessfully to suppress the
evidence. After pleading guilty, he appealed, and the court of appeals reversed.
The
Wisconsin Supreme Court accepted review, and reversed the court of appeals, in
a decision by Justice Ann Walsh Bradley. Chief Justice Shirley S. Abrahamson dissented,
in an opinion joined by Justice Louis B. Butler, Jr.
The
court held that a search did occur, even though the laxative was administered
by hospital personnel, and it was hospital policy to administer laxatives to prevent
overdose.
The
court wrote, “There can be no question on this record that one purpose of
the laxative procedure was medical treatment. However, when we consider all the
circumstances of this case, we conclude that the medical purpose of the procedure
cannot insulate the simultaneous evidence-gathering purpose from Fourth Amendment
scrutiny.”
Nevertheless,
the court held the search was legal, applying the three-factor balancing test
set forth in Winston v. Lee, 470 U.S. 735 (1980).
Under
that test, courts examine: (1) the extent to which the procedure may threaten
the safety or health of the individual; (2) the extent of the intrusion upon the
individual’s dignitary interests in personal privacy and bodily integrity;
and (3) the community’s interest in fairly and accurately determining guilt
or innocence.
Addressing
the first factor, the court found that any threat to Payano-Roman’s health
was “negligible.”
Rejecting
the court of appeals’ determination that expert medical evidence should have
been presented by the state, the court wrote, “we are satisfied that the
record in this case demonstrates that administration of the laxative was medically
appropriate and presented no appreciable risk to Payano-Roman’s safety or
health. Rather, the evidence showed that the procedure was medically indicated
to preserve his safety and health.”
Turning
to the second factor, the court concluded that the administration of laxatives
was a significant intrusion on Payano-Roman’s dignity interests in personal
privacy and bodily integrity.
The
court wrote, “The Supreme Court has recognized that ‘[t]here are few
activities in our society more personal or private than the passing of urine.’
The same must be said for the human body’s other primary excretory function
(citations omitted).”
However,
the court added, “we note that Payano-Roman’s bodily integrity would
have been compromised if the baggie containing heroin had ruptured while inside
him.
Waiting
until he passed the baggie, without the administration of the laxative, would
have apparently lengthened the time that he was exposed to this danger.”
Turning
to the third factor, the court determined that administration of the laxatives
served the community’s interest in fairly and accurately determining guilt
or innocence.
The
court found that there was clear evidence that narcotics would be recovered, and
that the administration of laxatives was an effective means of recovering it.
Although
the court found the record inconclusive as to the likelihood that the heroin in
the baggie would have been destroyed, absent the administration of the laxative,
evidence did suggest that there was an increased risk that the baggie would rupture,
resulting in the absorption of some or all of the heroin into Payano-Roman’s
system.
The
court added, “it cannot be ignored that Payano-Roman’s situation was
self-created insofar as he swallowed the baggie of heroin in an apparent attempt
to conceal or dispose of evidence. In our view, this should be a consideration
in the balancing of the Winston factors.”
Finally,
the court noted that the officers acted, at least in part, out of concern for
Payano-Roman’s well-being, and that, had they not sought medical attention
for Payano-Roman, they may have been derelict in their duties.
Accordingly,
the court affirmed.
The
Dissent
Chief Justice
Abrahamson dissented, noting that six hours lapsed between the arrest and the
administration of the laxative, yet the officers did not attempt to get a search
warrant.
Abrahamson
wrote, “The argument that the evidence might be lost unless an expedited
search occurred does not constitute exigent circumstances under the facts of the
instant case. … If the officers were concerned about the defendant’s
health why did it take them so long to act? Furthermore, six hours was more than
enough time to get a warrant. Yet the officers failed to secure a warrant during
this six-hour period.”
Abrahamson
also cited substantive due process: “Individuals have a constitutional right
to refuse medical treatment. This right is often analyzed under general privacy
principles, but more properly is analyzed under the Fourteenth Amendment liberty
guarantee. … No authority is cited for the proposition that an arrest negates
the need for a person’s consent for medical treatment or for a showing of
medical necessity.”
Finally,
Abrahamson stressed the need for an individualized determination of necessity,
asserting, “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.”
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David
Ziemer can be reached by email.
