Where there’s a forced digital rectal insertion, Michael LaPaglia seems to be close at hand, along with a couple of cops smiling at the mere thought of Vaseline and latex reminding a perp that they can do anything they want, including the warrantless search of a guy’s rectum. Oh yes, this happens. And happens.
Dr. LaPaglia appears to have an affinity for helping the police whenever his peculiar services are needed, which doesn’t seem to bother any of his medical colleagues too much, I might add. Without the help of a physician, the police might have to get their own hands dirty. Ew. Thank goodness there are physicians willing to manage the hard work of inserting their fingers into the rectums of unwilling patients in search of…evidence.
Despite the obvious belief of those who fully grasp the depth of need of digital rectal searches whenever a cop decides that a guy’s anus needs to be taught a lesson, the 6th Circuit doesn’t see the practice as savory. From Judge John Rogers in United States v. Felix Booker (just to avoid confusion with the other Booker):
This was not the first time that officers had brought a suspect to LaPaglia so that he could perform a digital rectal examination, that is, a procedure in which a physician inserts a finger into the patient’s anus to probe the rectum. This was the third time that officers with the Anderson County Sheriff’s Department had sought LaPaglia’s assistance with this type of procedure within three years.
A specialist! LaPaglia’s mother must be so proud. And LaPaglia, filled with the virtue of his mission, explained to Booker that, well, he owned his butt.
Booker—still naked and handcuffed—denied hiding drugs in his rectum and refused to submit to a digital rectal examination. LaPaglia replied that Booker “really did not have a choice because if my suspicion was high enough to think that he had some sort of dangerous substance in his rectum, then it was my duty to get it out.”
Booker did what anyone subject to forcible rectal entry would do, he clenched his butt cheeks.
LaPaglia warned Booker that if he did not cooperate, LaPaglia would administer muscle relaxants or, if necessary, paralyze Booker in order to perform the rectal examination.
And so he did, ultimately rendering Booker unconscious, intubating him and diving in for evidence.
Booker’s motion for suppression was denied, as the Eastern District of Tennessee magistrate judge, whose decision was adopted in full by the district court judge, ”concluded that the digital rectal examination was lawful because it was not a ‘search’ under the Fourth Amendment, and even if it was a ‘search,’ LaPaglia and the officers acted reasonably under the circumstances.” Apparently, this is what’s considered reasonable in Tennessee.
Fortunately, the 6th Circuit sits in cosmopolitan Cincinnati.
A comparison of this case to Rochin v. California, 342 U.S. 165 (1952), and Winston v. Lee, 470 U.S. 753 (1985), shows that the digital rectal examination was unreasonable. In Rochin, . . . police directed a doctor to force “an emetic solution through a tube into Rochin’s stomach against his will.” . . . The Court said the deputies’ conduct “shocks the conscience” and was “too close to the rack and screw to permit constitutional differentiation.”
Forced paralysis, intubation, and digital rectal examination is at least as shocking as stomach pumping. The main legal difference is that Rochin analyzed the practice under the “fundamental fairness” standard of the Due Process Clause of the Fourteenth Amendment, while Booker bases his challenge on the Fourth Amendment’s prohibition of “unreasonable searches,” which applies to the states via the Due Process Clause of the Fourteenth Amendment. See Wolf v. Colorado, 338 U.S. 25, 28 (1949). However, this difference is immaterial because investigative conduct that would shock the conscience for purposes of the Due Process Clause is “unreasonable” for purposes of the Fourth Amendment.
The only thing missing at the outset of the analysis is a boldfaced ”WTF?” What is somewhat surprising about the opinion is that Judge Rogers believed it necessary to go to any analytical length to hold the obvious, that no suspect should ever be forced to endure Dr. Michael LaPaglia’s happy finger up his rectum. It seems sufficient to merely assert that this shocks the conscience without further explanation.
Notably, the government argued that the evidence shouldn’t be suppressed because LaPaglia wasn’t a state actor and was just having too much fun doing digital rectal exams on his own so that suppression would serve its deterrent affect. The court disagreed:
In this case, the rule will obviously deter the behavior of the officers who seek to use willing “independent” doctors to probe in cases where a government-directed investigating doctor could not. Indeed, the evidence that this was the third time in three years that LaPaglia assisted the police suggests recurring behavior.
For those of you sputtering but, but, but, how could society possibly survive if we let a drug dealer get away with it, bear in mind that what goes in must eventually come out. There is always the opportunity for the police to enjoy a “monitored bowel movement,” or of course an x-ray might offer a clue as to whether there is anything secreted in the suspect’s anus. But then, that would take all the fun out of it for LaPaglia and the cops.
On the other hand, as long as we’re considering things that threaten the survival of society, one has to wonder why the medical community doesn’t take issue with Dr. LaPaglia’s extracurricular digital delights. One might think that other physicians in his hospital would find his conduct a bit distasteful, and question whether it was medically ethical for LaPaglia to be such a tool for law enforcement and bring disrepute on the profession. But apparently, his medical brethren aren’t terribly concerned by sound of snapping latex.
H/T Spencer Neal