United States v. Mark Fowlkes

dissenting in part.

The majority opinion departs from the record presented to us on appeal to craft a blanket rule that ultimately may prove difficult to administer, at the expense of jailhouse security. 1 Because I believe the *766 facts found by the district court, which the majority does not contend were clearly erroneous, render the warrantless search and seizure reasonable under the totality of the circumstances, I dissent from the majority’s decision to suppress the evidence seized during the jailhouse search.

I.

The majority begins its discussion of the present case by choosing to describe the facts surrounding the jailhouse search in the most unfavorable light, at times engaging in wholesale speculation, to portray this case as one involving brutal, unnecessary police action. I believe it is helpful to clarify some of the more important factual considerations in order to fairly lay out the context the court must consider in evaluating the reasonableness of the police actions at issue.

One such unfounded speculation is the majority's suggestion of a nefarious, presearch intent of Sergeant Gibbs to engage in a body cavity search of Fowlkes. See Maj. Op. at 758. The…

Opinion by Judge WARDLAW; Partial Dissent by Judge RESTANI.

OPINION

Mark Tyrell Fowlkes appeals his conviction for drug distribution and possession with intent to distribute. Fowlkes raises a number of claims on appeal, but only one has merit: that the forcible removal of drugs from Fowlkes’s rectum' by officers without medical training or a warrant violated his Fourth Amendment rights. Because we conclude that the evidence obtained from this brutal and physically invasive search should have been suppressed, we vacate Fowlkes’s conviction in part, vacate his sentence, and remand to the district court.

I.

A.

Drug Enforcement Administration (“DEA”) agents and Long Beach Police Department (“LBPD”) officers obtained warrants for wiretaps on two phones (Target Telephones # 1 and # 2) in July and August of 2006. On September 3, 2006, officers intercepted communications pursuant to the wiretap, which led them to conclude that Fowlkes was arranging a drug deal. Based on that information, LBPD officers placed Fowlkes under surveillance and witnessed what appeared to be a drug deal between Fowlkes and two other individuals, Shaun Lee and Elaine Watson. Lee walked away from the deal,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50273 Plaintiff-Appellee, D.C. No. v. 2:07-cr-00497-

CAS-

MARK TYRELL FOWLKES, AKA

Mark Fowlkes, AKA Marq Tyrell Fowlkes, AKA Shawn Walls, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted May 7, 2013—Pasadena, California

Filed August 25, 2014

Before: Kim McLane Wardlaw and Mary H. Murguia, Circuit Judges, and Jane A. Restani, Judge.*

Opinion by Judge Wardlaw; Partial Dissent by Judge Restani

* The Honorable Jane A. Restani, Judge for the U.S. Court of International Trade, sitting by designation. SUMMARY**

Criminal Law

Affirming in part, reversing in part, and remanding, the panel held that the forcible removal of drugs from the defendant’s rectum during a body cavity search at the Long Beach Jail, without medical training or a warrant, violated the defendant’s Fourth Amendment rights, and the evidence obtained from this brutal and physically…