Giving laxatives is lawful search

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The warrantless administration of laxatives to a suspect to recover a baggie of heroin from his stool is a search under the Fourth Amendment, but it is a reasonable one.

In so holding on May 18, the Wisconsin Supreme Court reversed a published decision of the court of appeals, State v. Payano-Roman, 2005 WI App 118, 284 Wis.2d 350, 701 N.W.2d 72.

In 2002, two Milwaukee County officers were investigating drug trafficking. When they approached Tomas R. Payano-Roman, who matched an informant’s description of the trafficker, Payano-Roman put a clear plastic baggie containing a white substance in his mouth, and swallowed it. Based on the packaging, the officers believed it was heroin.

An ambulance conveyed Payano-Roman to a hospital, where staff stated that policy was to admit the patient, because ingestion could lead to an overdose.

Hospital personnel administered a liquid laxative for Payano-Roman to drink every 20 to 30 minutes. A portable toilet was provided, and the next morning, Payano-Romano had a bowel movement in the toilet, while an officer observed.

The officer examined the stool and recovered a baggie, the contents of which were later determined to be heroin.

Payano-Roman was charged with possession of heroin, and moved unsuccessfully to suppress the evidence. After pleading guilty, he appealed, and the court of appeals reversed.

The Wisconsin Supreme Court accepted review, and reversed the court of appeals, in a decision by Justice Ann Walsh Bradley. Chief Justice Shirley S. Abrahamson dissented, in an opinion joined by Justice Louis B. Butler, Jr.

The court held that a search did occur, even though the laxative was administered by hospital personnel, and it was hospital policy to administer laxatives to prevent overdose.

The court wrote, “There can be no question on this record that one purpose of the laxative procedure was medical treatment. However, when we consider all the circumstances of this case, we conclude that the medical purpose of the procedure cannot insulate the simultaneous evidence-gathering purpose from Fourth Amendment scrutiny.”

Nevertheless, the court held the search was legal, applying the three-factor balancing test set forth in Winston v. Lee, 470 U.S. 735 (1980).

Under that test, courts examine: (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.

Addressing the first factor, the court found that any threat to Payano-Roman’s health was “negligible.”

Rejecting the court of appeals’ determination that expert medical evidence should have been presented by the state, the court wrote, “we are satisfied that the record in this case demonstrates that administration of the laxative was medically appropriate and presented no appreciable risk to Payano-Roman’s safety or health. Rather, the evidence showed that the procedure was medically indicated to preserve his safety and health.”

Turning to the second factor, the court concluded that the administration of laxatives was a significant intrusion on Payano-Roman’s dignity interests in personal privacy and bodily integrity.

The court wrote, “The Supreme Court has recognized that ‘[t]here are few activities in our society more personal or private than the passing of urine.’ The same must be said for the human body’s other primary excretory function (citations omitted).”

However, the court added, “we note that Payano-Roman’s bodily integrity would have been compromised if the baggie containing heroin had ruptured while inside him.

Waiting until he passed the baggie, without the administration of the laxative, would have apparently lengthened the time that he was exposed to this danger.”

Turning to the third factor, the court determined that administration of the laxatives served the community’s interest in fairly and accurately determining guilt or innocence.

The court found that there was clear evidence that narcotics would be recovered, and that the administration of laxatives was an effective means of recovering it.

Although the court found the record inconclusive as to the likelihood that the heroin in the baggie would have been destroyed, absent the administration of the laxative, evidence did suggest that there was an increased risk that the baggie would rupture, resulting in the absorption of some or all of the heroin into Payano-Roman’s system.

The court added, “it cannot be ignored that Payano-Roman’s situation was self-created insofar as he swallowed the baggie of heroin in an apparent attempt to conceal or dispose of evidence. In our view, this should be a consideration
in the balancing of the Winston factors.”

Finally, the court noted that the officers acted, at least in part, out of concern for Payano-Roman’s well-being, and that, had they not sought medical attention for Payano-Roman, they may have been derelict in their duties.

Accordingly, the court affirmed.

The Dissent

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Chief Justice Abrahamson dissented, noting that six hours lapsed between the arrest and the administration of the laxative, yet the officers did not attempt to get a search warrant.

Abrahamson wrote, “The argument that the evidence might be lost unless an expedited search occurred does not constitute exigent circumstances under the facts of the instant case. … If the officers were concerned about the defendant’s health why did it take them so long to act? Furthermore, six hours was more than enough time to get a warrant. Yet the officers failed to secure a warrant during this six-hour period.”

Abrahamson also cited substantive due process: “Individuals have a constitutional right to refuse medical treatment. This right is often analyzed under general privacy principles, but more properly is analyzed under the Fourteenth Amendment liberty guarantee. … No authority is cited for the proposition that an arrest negates the need for a person’s consent for medical treatment or for a showing of medical necessity.”

Finally, Abrahamson stressed the need for an individualized determination of necessity, asserting, “Medical treatment requires an individual approach. Nothing on the record indicates that the defendant was asked about any medical condition he might have that might be affected by a laxative, about any allergy to laxatives, about the nature of the plastic bag, or about its contents.”

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David Ziemer can be reached by email.