Sixth Circuit Finds that Forcible Cavity Search “Shocks the Conscience”

By Zachary Margulis-Ohnuma

After being arrested with a negligible amount of marijuana, police suspected fidgety Felix Booker was hiding something more. Police transported Booker to a hospital where he was medicinally paralyzed and intubated against his will for eight minutes while the physician performed a cavity search without his consent. They turned up a five gram cocaine rock which led to Booker’s conviction for possession with intent to distribute.

The U.S. Court of Appeals for the Sixth Circuit, however, found that the doctor’s involuntary search violated Booker’s rights under the Fourth Amendment. That means the evidence found as a result of the search gets thrown out, so Booker’s conviction was reversed. Not only did the panel majority call the government’s actions “so unreasonable as to shock the conscience,” Judge John Rogers wrote that the physician’s actions constitute medical battery. The Sixth Circuit opinion adds to a short list of cases where courts have actually faulted police for conscience-shocking conduct.  It does so under the “modern” rubric of the Fourth Amendment prohibition against unreasonable searches and seizures, as opposed to the Supreme Court’s old approach, which invalidated such conduct under more general principles of due process.