Laxatives Case Analysis

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In weighing each of the three factors from Winston v. Lee, 470 U.S. 753, 761-762 (1985), the court rests its holding on but one fact — the State presented no qualified medical testimony at the suppression hearing as to the risks to Payano-Roman from ingesting large quantities of heroin.

Thus, the holding in this case may be distinguished in future case, provided the State presents evidence of such risk.

In presenting such evidence, however, the focus needs to be broader than just that risk, but should include consideration of the various options facing officers: warrantless administration of laxatives; obtaining a warrant to administer laxatives; letting nature take its course; and releasing the suspect.

The first factor is "the extent to which the procedure may threaten the safety or health of the individual." Presumably, this factor will always weigh in favor of the State if medical testimony is presented. Whatever risk laxatives may pose, it cannot outweigh the risk of leaving the drugs in the suspect’s stomach until nature runs its course.

Evidence in the form of police testimony should also be presented on the common means of packaging controlled substances.

Alimentary canal smuggling is a common means of trafficking controlled substances. The smuggler swallows balloons filled with controlled substances at the point of origin, and upon reaching the destination, defecates the goods. See U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985).

In smuggling, however, it is expected on the part of the smugglers that the balloons will remain intact during their trip through the alimentary canal. In a street level transaction, the controlled substance may not be packaged in a balloon designed to survive the trip intact, and the risk of rupture of the packaging could be significantly greater.

However, some drug dealers package their wares so that they can be swallowed. U.S. v. Vasquez, 966 F.2d 254, 256 (7th Cir. 1992), for example, involved prosecution of a gang known as the "Balloon People," who packaged their heroin in balloons, so that, if there was a police raid, the dealers could swallow the goods, both preserving, and concealing, the heroin. Police testimony concerning the packaging of drugs, and whether such practices are common or rare, is relevant to the inquiry.

In State v. Thompson, 222 Wis.2d 179, 585 N.W.2d 905 (Ct.App.1998), for example, the defendant swallowed drugs during a traffic stop to avoid arrest, and ultimately had to have his stomach pumped at the hospital when one of the packages broke.

In a street-level bust, the risk to the suspect’s health is necessarily greater than in the smuggling context, because the packaging may not be intended to survive a trip through the alimentary canal, while it will always be in the smuggling context.

Smugglers also sometimes ingest charcoal to absorb the stomach acid that could dissolve the balloons. In a street-level bust, there is no opportunity for that, and again, the risk to the suspect of dissolution and overdose is greater.

It is not clear why the court found medical evidence relevant to the second factor — the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity. Even if the officers don’t administer a laxative, they will still put the suspect in a dry cell and inspect his feces. Medical testimony is irrelevant to the question whether it is intrudes on the suspect’s dignity to expedite the process with laxatives.

However, medical testimony is relevant to the third factor — the community’s interest in fairly and accurately determining guilt or innocence. It cannot reasonably be disputed that, as the officers saw Payano-Roman ingest heroin or cocaine, the community has an interest in the officers recovering it.

An important, but unconsidered question, in the case at bar is "when?" If the officers do not administer the laxative, but put the suspect in a dry cell to let nature take its course, it could take days for the process to complete.

Many of the cases that involve the ingestion of drugs arise in the smuggling context, either at the border or in prisons. The difference is that, at the border, or in a prison, the suspect can be placed in a dry cell indefinitely while nature takes its course. In the arrest context, the length of time that it takes could become an unreasonable detention.

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The court briefly touched on this consideration in a footnote discussing the inevitable discovery doctrine: "The State [argues] that if Payano-Roman had simply been taken to jail, his bowel movements would have been monitored there and the heroin would have been discovered anyway. We are not persuaded. We conclude that inevitable discovery is not applicable here because of the invasion of the body. If we were to rule as the State suggests, there would be no incentive for the police to respect the bodily integrity of persons in custody because they could always argue inevitable discovery."

However, this discussion misses the point. If nature doesn’t take its course quick enough, the suspect may have be released because there will be no probable cause to support issuance of a criminal complaint. Thus, officers have a need to expedite the process that is directly
relevant to the third factor, and this factor should weigh in favor of the State.

In future cases, when medical testimony is elicited, the witness should be questioned not just as to the danger of rupture of the packaging, but the likelihood that the drugs will not be passed before the time the suspect must be released for lack of evidence.

– David Ziemer

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David Ziemer can be reached by email.