May 30, 2018
Mr. Brown’s Anus
So you have been arrested by the police and they have a suspicion you have drugs up your butt. What happens next? Luckily, the MN COA published a case that answers this cavernous question once and for all. The case is called State v. Brown, but could possibly be called, State v. Green, depending if asparagus was consumed prior. Here are the sticky facts. Minneapolis PD arranged for a Confidential Informant. After the transaction was complete the police observed Brown reaching down his pants. They believed he was trying to conceal something. I would argue he didn’t wipe very well. At the police station, police observed Brown “grinding his buttocks” against his chair in a back and forth motion. Again, I would argue that he was twerking.
Brown then stood up, straddled the chair rail, and ground his butt cheeks into it. An officer told Brown to stop, believing that he was “attempting to jam narcotics up his rectum.” Then the officer observed Brown “taking his hands and shoving . . . kind of between his legs, shoving upwards.” The officer believed that Brown was trying to insert something into his rectum. A strip search revealed clear plastic sticking out of Brown’s anus. Again, back to the single ply toilet paper argument.
The officers applied for a search warrant and took Brown the hospital. In the emergency department, Christopher Palmer, M.D., performed an external body search and did not see anything protruding from Brown’s anus.Dr. Palmer offered Brown a liquid laxative, but he refused it. After consulting the hospital’s legal counsel, Dr. Palmer declined to administer a laxative or perform any procedure to remove the suspected narcotics without Brown’s consent.
Police then applied for and obtained a more specific search warrant from the same district court judge who had granted the first warrant. The second warrant expressly authorized hospital staff to “use any medical/physical means necessary to have Brown vomit or defecate the contents of his stomach or physically by any means necessary remove the narcotics from the anal cavity so Officers can retrieve the narcotics.” Police transported Brown to the emergency department at Hennepin County Medical Center (HCMC) ( to hopefully a more liberal anus removal facility), where Paul Nystrom, M.D., reviewed the warrant and consulted the hospital’s legal counsel about his rights and obligations. Dr. Nystrom understood the warrant to authorize the removal of the narcotics through any medically reasonable means but not to compel him to act if he was ethically opposed. His assessment was that leaving cocaine in the rectum had the potential to cause serious complications or death, but that no medical emergency existed at the time.
Dr. Nystrom offered Brown four options to remove the suspected narcotics: (1) Brown could remove the bag himself, (2) Dr. Nystrom could administer an enema,1(3) Dr. Nystrom could sedate Brown and perform an anoscopy, or (4) Dr. Nystrom could put Brown on a ventilator and insert a nasogastric tube to deliver a laxative that would“eventually clear his bowels.” After explaining the different procedures and associated risks, Dr. Nystrom recommended options one or two. Dr. Nystrom told Brown that if he did not select an option, they would proceed with a sedated anoscopy. Brown remained silent. Remember that 5th amendment here, kids.
Dr. Nystrom elected to proceed with the third option—sedation and anoscopy. Dr. Nystrom concluded that, absent Brown’s cooperation, anoscopy was the safest and most conservative means of removal. He described the procedure as the insertion of a speculum in the rectum to allow inspection of the four quadrants. The procedure is typically done to look for internal bleeding or hemorrhoids, but can also be used to remove a foreign body. Dr. Nystrom explained that the speculum is “like the size of a large bowel movement, so it’s not comfortable,” but it allows visualization of “whatever it is you’re worried about.” The procedure takes “a couple of minutes,” and then the speculum is removed. He testified that although sedation is not always required for anoscopy, relaxation makes the procedure, “less painful, less uncomfortable.”
After another medical doctor sedated Brown intravenously with Propofol, Dr. Nystrom inserted the anoscope and conducted a visual inspection, but he did not immediately see anything. Taking a second look, he saw the edge of a plastic bag. Using Magill forceps, Dr. Nystrom removed the bag and handed it to police. Later testing confirmed that the bag contained 2.9 grams of crack cocaine.
The state charged Brown with fifth-degree crack-cocaine possession under Minn. Stat. § 152.025, subd. 2(a)(1) (2014). Brown moved to suppress the evidence, arguing that the procedure by which the cocaine was removed violated his constitutional right against unreasonable searches and seizures.
Here is the law:
Winston articulates three factors that courts should consider when determining whether a medical-procedure search is reasonable: (1) “the extent to which the procedure may threaten the safety or health of the individual,” (2) “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” and (3) “the community’s interest in fairly and accurately determining guilt or innocence.” 470 U.S. at 761-62, 105 S. Ct. at 1617-18.
- Dr. Nystrom testified that it was safe and the equivalent of a large bowel movement, which can sometimes be relieving.
- The district court properly determined that “the procedure was demeaning, humiliating, and an infringement on Brown’s dignitary interests.” This factor favors a conclusion that the procedure was unreasonable.
- The district court found that the community has a strong interest in prosecuting those who sell illegal drugs on street corners. Brown does not dispute this finding. Significantly, unlike in Winston, the evidence sought here was the state’s only direct evidence of crack-cocaine possession.
After balancing the three Winston factors, the COA conclude that the district court properly determined, in a comprehensive and thoughtful decision (nice job Judge Hoyos), that the anoscopy procedure was reasonable under the circumstances.
So there you. The lesson here is drugs are bad but if you have them up your butt don’t act like a bear scratching an itch on a tree.