Extraction of contraband from arrestee’s sensitive area deemed unconstitutional for failure to involve trained medical personnel

Olushola Akinmboni v. United States (decided November 19, 2015).

Players: Associate Judges Glickman, Blackburne-Rigsby, and McLeese.  Opinion by Judge McLeese.  Vincent A. Jankoski for Mr. Akinmboni.  Trial Judge: Ronna L. Beck.

Facts:  MPD arrested Mr. Akinmboni and transported him to a Superior Court cellblock, where the deputy marshal on duty searched him for weapons and contraband.  When the deputy felt a (foreign) object in Mr. Akinmboni’s groin area, the deputy took Mr. Akinmboni to a private area to conduct a strip search.  The deputy confiscated a baggie of marijuana from near Mr. Akinmboni’s groin.  In addition, a plastic baggie, later found to contain marijuana, was protruding from Mr. Akinmboni’s anus.  When Mr. Akinmboni removed the baggie, it revealed yet another baggie that the deputy directed him to remove.  When he did so, a third baggie appeared.  In total, Mr. Akinmboni removed five baggies from his anus, each containing contraband.  At no point during the extractions did the deputy seek the involvement of trained medical personnel.  Mr. Akinmboni was later charged with and convicted for possessing the various baggies of contraband.

Issue: Whether the deputy violated the Fourth Amendment by requiring Mr. Akinmboni to extract baggies from his anus without the involvement of trained medical personnel.

Holding: Yes. The government bears the burden to show that searches and seizures are reasonable both in scope and execution.  Determining whether the manner of search or seizure is reasonable requires balancing the government’s needs against the invasiveness of the intrusion.  Where a search or seizure involves removing items from a sensitive area, the reasonableness of the method depends in part on hygiene, training, emotional and physical trauma, and the availability of alternate methods.  Here, as in United States v. Fowlkes, No. 11-50273, 2015 WL 5667555 (9th Cir. Sept. 28, 2015), State v. Barnes, 159 P.22d 589 (Ariz. Ct. App. 2007), and United States ex rel. Guy, v. McCauley, 385 F. Supp. 193 (E.D. Wis. 1974), the Government has not shown that the extraction of baggies from Mr. Akinmboni’s anus was reasonable without medical personnel, in light of known risks to his health and safety. 

Of Note:

• This case may be cited as general authority for the proposition that the government bears the burden of establishing the reasonableness of its searches and seizures.  The Court was unwilling to infer reasonableness from a number of circumstances identified by the government, going as far as to question whether the U.S. Marshals Service’s policy authorizing the deputy’s behavior adequately accounted for the prisoner safety concerns at issue.  See Op. at 15 (“[T]he United States presented no information about the rationale or basis for the policy in question.”).

• MPD already requires that body cavity searches be conducted by medical professionals.  See General Order 502-01, “Transportation and Searches of Prisoners,” at 9, available at https://go.mpdconline.com/GO/GO_502_01.pdf (last accessed, Nov. 19, 2015).

• Finally, while this case focused on the  constitutionality of the deputy’s orders in light of the fact that no medical professional was present, the Court made clear that such presence is neither necessary nor sufficient in all cases for a sensitive cavity extraction to be deemed constitutional.  Op. at 14-15.  WC

Read full opinion here.