Tim Powers

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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 an attorney.