United States v. Mark Fowlkes

Opinion by Judge WARDLAW; Partial Dissent by Judge RESTANI

ORDER

Appellee’s January 22, 2015 Petition for Panel Rehearing is GRANTED. Accordingly, the Opinion and Partial Dissent filed on August 25, 2014 are withdrawn, and a new opinion and partial dissent are filed. See Fed. R.App. P. 40(a)(4)(A).

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 an unidentified item of unknown size from Fowlkes’ 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 seizure should have been suppressed, we vacate Fowlkes’ 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…

dissenting in part.

Because I believe the 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.

The majority opinion makes much of the fact that Gibbs “brought along his taser, gloves and ‘assistance’ in the form of additional officers because he thought Fowlkes might have drugs” and “retrieved a taser from his vehicle and put on latex gloves.” See Maj. Op. at 958-59, 965-66. Not only is this insinuation of an improper pre-search intent irrelevant under the…

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, ORDER AND Defendant-Appellant. OPINION

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 September 28, 2015

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

The panel granted a petition for panel rehearing, withdrew an opinion and partial dissent filed August 25, 2014, and filed a new opinion and partial dissent in an appeal from a conviction for drug distribution and possession with intent to distribute.

The panel affirmed in part and reversed in part – vacating a…