Administering laxatives is unlawful search

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The Wisconsin Court of Appeals held on May 10 that it violated a suspect’s Fourth Amendment rights to administer him laxatives until he expelled a bag of heroin.

On April 12, 2002, Milwaukee Police Officers Corey Parker and Scott Stiff were conducting surveillance based on a tip that a person was trafficking cocaine and possibly heroin out of a blue Toyota Tercel.

During the surveillance, they observed Tomas R. Payano-Roman walk up to the blue Tercel and crouch into the driver’s side of the car. The officers approached Payano-Roman, and announced that they were police. They then observed Payano-Roman place a plastic baggie containing a white substance into his mouth, and swallow it.

The officers arrested Payano-Roman for possession of a controlled substance, and he was taken to the hospital in an ambulance. At the hospital, he was handcuffed to the bed.

A nurse told the officers that administering a liquid laxative would speed up the process by which things would be passed through his system. The laxative was administered about six times. Eventually, the police recovered a plastic bag containing heroin from Payano-Roman’s feces, and he was charged with possession of heroin.

Payano-Roman moved to suppress the evidence based on a violation of the Fourth Amendment, but Reserve Judge Russell W. Stamper denied the motion. Payano-Roman then pleaded guilty and appealed the denial of the suppression motion.

The court of appeals reversed in a decision by Judge Ted E. Wedemeyer.

The court first concluded that the administration of the laxatives was a state action, rather than a private action by hospital personnel.

Noting that no medical personnel testified that the administration of the laxatives was necessary to protect Payano-Roman’s health, the court concluded, "Without this medical evidence, the record suggests that the only reason to administer the laxatives was to recover the evidence. Under these circumstances, there can be but one reasonable conclusion — that the medical personnel acted as agents on behalf of the police."

Turning to whether the search was reasonable, the court examined three factors: (1) the extent to which the procedure may threaten the safety or health of the individual; (2) the extent of the 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. Winston v. Lee, 470 U.S. 753, 761-62 (1985).

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Addressing the first factor, the court noted there was neither any evidence from any medical personnel concerning the risk to Payano-Roman from ingestion of the suspected heroin, nor any testimony as to the health risks associated with ingesting large amounts of laxatives over the course of a 12-hour period. However, because the burden is on the State to justify a warrantless intrusion, the court concluded the absence of evidence on this factor weighs against the State.

The court found the second factor also weighs against the State, because the intrusion required Payano-Roman to defecate in the presence of the officers: "Our society is one in which defecation is a private matter, not often done in the presence of others." The State argued that the medical risk to Payano-Roman was greater than any intrusion on his dignity, but the court iterated that no medical personnel testified to any such risk at the suppression hearing.

Finally, the court found the third factor — the community’s interest in fairly and accurately determining guilt or innocence — also weighs against the State, because there was no neutral judicial evaluation of the necessity for the search. Again, the court emphasized the absence of any medical evidence that the search was necessary for Payano-Roman’s health

Accordingly, the court reversed.

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David Ziemer can be reached by email.