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Arrest — Search Incident to Arrest — “Laxative Search”

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118
For Payano-Roman: Timothy A. Provis

Issue: Whether post-arrest administration of a laxative, in order to recover a substance the arrestee had swallowed was an unreasonable intrusion, such that the result was suppressible.


¶36      More helpful than border search jurisprudence is Winston v. Lee, 470 U.S. 753 (1985), the case under which the State makes its backup argument.

¶37      In Winston, the United States Supreme Court applied a three-factor balancing test to determine the reasonableness of a search involving a medical procedure that intruded on a criminal suspect’s bodily integrity.  Under that test, courts examine (1) the extent to which the procedure may threaten the safety or health of the individual and (2) the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity.  Winston, 470 U.S. at 761-62.  They then weigh these two factors against (3) the community’s interest in fairly and accurately determining guilt or innocence.  Id. at 762.[10]  The balance “is a delicate one admitting of few categorical answers.”  Id. at 760.

¶38      We agree with the court of appeals, Payano-Roman, and the State in its backup argument that Winston provides a useful framework for the case at bar.

¶42        … The State bears the burden of proof as to the reasonableness of the search. …

The court concludes that this laxative search was reasonable: medical staff, not police, made the decision; administration was medically acceptable, ¶¶44-46; though the “laxative procedure” was indeed “a significant intrusion on his dignitary interests,” his bodily integrity would have been compromised had the baggie with the substance the police wanted to recover ruptured before being passed, ¶52; and, “there was a clear indication that administration of the laxative would produce evidence of a crime,” ¶54. Of note: “courts should generally not assume, without evidence, that a particular procedure is medically indicated in a given case. A review of the case law suggests that what is medically indicated may, as one might expect, vary under the circumstances. … Thus, in many cases, it may be necessary for the State to call one or more appropriate medically qualified witnesses,” ¶¶47-48. Though no such medical evidence was produced in this instance, the record nonetheless demonstrated that administering the laxative was both medically appropriate and also presented “no appreciable risk” to safety or health, ¶48. Whether this will be taken to mean that giving a laxative is always and necessarily appropriate remains to be seen.The dissent stresses that 6 hours elapsed between arrest and administration of the laxative—plenty of time to get a warrant, ¶64. This is a point not discussed by the majority. Instead, the majority simply seems to assume that reasonableness of the procedure provides its own justification for avoiding warrant procedure. (More accurately, the majority just doesn’t address the problem, so one can only assume that this is what the majority is saying.)Winston v. Lee, it is worth mentioning, involved a court order authorizing the intrusion, in that instance surgical retrieval of a bullet. It is true that the exigent circumstances / emergency doctrine is an exception to the warrant requirement, but the majority does no more than briefly allude to that doctrine and then press on under the distinct search-incident rationale, ¶¶32-33. To the extent that he majority is saying that a bodily intrusion, incident to arrest, may be deemed reasonable without regard to whether a search warrant could have been obtained, a cert-worthy issue may be presented.


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