Law Office of Tim Powers
An examination of a defendant with a proctoscope, under sedation, pursuant
to a warrant, obtained on the belief that the suspect was concealing crack
cocaine in his rectum was not reasonable under the Fourth Amendment.
The Fifth Circuit noted compelling reasons to justify departure from its
normal "good-faith first approach" and held the search unreasonable
due to the "exceeding affront to the defendant's dignitary interest
and society's diminished interest in that specific procedure in light
of other less-invasive means."
The Fifth Circuit held that the procedure conducted in this case was a
greater affront to the defendant's dignity than exploratory surgery.
Though the defendant was sedated, he was still conscious while being probed
in a highly personal and private area. The evidence could have instead
been recovered by a catheter or an enema.
Having said all that, the Court of Appeals still held that the evidence
was admissible because the officers were acting in good faith upon a search
warrant. [United States v. Gray, cause number 10-1 1150, February 1, 2012.]
This case is a perfect example of the erosion of the Fourth Amendment.
Even when the Fifth Circuit finds that a defendant's Fourth Amendment
rights have been violated, there is no consequence for law enforcement.
The law enforcement authorities were operating under the "good-faith
exception," which is essentially an end-run around honest, legitimate
enforcement of the Fourth Amendment. Without enforcing the exclusionary
rule under the Fourth Amendment, the Fourth Amendment has no teeth.
The Fifth Circuit could've saved itself a whole lot of time by writing
an opinion in
United States v. Gray that was addressed to law enforcement and said "That's not very
nice, but it's okay."
If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton County criminal case or arrest
in Denton County, contact the offices of Tim Powers today. There is no
charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult