                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0251p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 11-6311
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 FELIX BOOKER,
                                                N
                  Appeal from the United States District Court
               for the Eastern District of Tennessee at Knoxville.
             No. 3:10-cr-44-1—Robert Leon Jordan, District Judge.
                              Argued: October 9, 2012
                       Decided and Filed: August 26, 2013
           Before: GILMAN, GIBBONS, and ROGERS, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Robert L. Jolley, Jr., JOLLEY & ELDRIDGE, Knoxville, Tennessee, for
Appellant. Debra A. Breneman, UNITED STATES ATTORNEY’S OFFICE,
Knoxville, Tennessee, for Appellee. ON BRIEF: Robert L. Jolley, Jr., JOLLEY &
ELDRIDGE, Knoxville, Tennessee, for Appellant. Alexandra Hui, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
     ROGERS, J., delivered the opinion of the court, in which GILMAN, J., joined.
GIBBONS, J. (pp. 20–25), delivered a separate dissenting opinion.
                                _________________

                                     OPINION
                                _________________

       ROGERS, Circuit Judge. Felix Booker was convicted of possession of a five-
ounce rock of crack cocaine, which he had hidden in his rectum. Police officers,
reasonably suspecting that Booker had contraband hidden in his rectum, took Booker to
an emergency-room doctor. The doctor, using a procedure that Booker did not consent


                                          1
No. 11-6311        United States v. Booker                                         Page 2


to, intubated Booker for about an hour, rendered him unconscious for twenty to thirty
minutes, and paralyzed him for seven to eight minutes. Using a finger, the doctor found
and removed the crack cocaine, and turned it over to the police. Even though the doctor
may have acted for entirely medical reasons, the unconsented procedure while Booker
was under the control of the police officers must, in the circumstances of this case, be
attributed to the state for Fourth Amendment purposes. The unconsented procedure,
moreover, shocks the conscience at least as much as the stomach pumping that the
Supreme Court long ago held to violate due process. The evidence resulting from the
procedure should accordingly have been excluded, and Booker’s conviction must be
reversed.

                                             I.

       At approximately 11:50 a.m. on August 12, 2010, Daniel Steakley, a K-9 officer
with the Oak Ridge Police Department (“ORPD”), pulled over a car with expired tags.
William Booker, the defendant’s brother, drove the car; Felix Booker rode in the front
passenger’s seat. While speaking with William Booker, Steakley smelled marijuana.
William Booker denied that there were illegal drugs in the car and told Steakley he was
free to search the vehicle. Prior to conducting the search, Steakley went to the police
cruiser to check William Booker’s driver’s license status and to ascertain the existence
of any outstanding warrants with the police dispatcher. As Steakley did so, he noticed
Felix Booker “moving around, as if he was attempting to conceal something.” This was
not the first encounter between Felix Booker and Steakley. In 2009, Steakley had
arrested Booker and recovered thirteen bags of marijuana that Booker hid in his crotch.

       After completing the driver’s license and outstanding warrants checks, Steakley
utilized his trained drug-sniffing dog. The dog alerted near the front passenger-side door
of the car where Felix Booker was seated. Steakley asked Booker to exit the car and
patted him down. During the search, Steakley noticed that Booker “cl[e]nched his
butt[ocks] together” when he patted him in that area, but the pat-down produced no
drugs. However, Steakley did feel two large bulges in Booker’s pockets which turned
out to be large amounts of currency. During the search of the front passenger’s seat,
No. 11-6311        United States v. Booker                                        Page 3


Steakley recovered three small plastic bags: one that contained .06 grams of marijuana,
another that contained “a green plant-type residue,” and a third covered with a “powder
residue.” Steakley also noticed marijuana “ground up into the floor” of the passenger-
side seat.

        Steakley arrested Felix Booker for felony possession of marijuana, despite being
unable to recover enough marijuana to justify such an arrest under Tennessee law. See
Tenn. Code Ann. § 39-17-418(b) (defining marijuana possession below 14.175 grams
as a misdemeanor offense); § 40-7-118(b)(1) (authorizing citation, but not arrest, when
an officer witnesses a misdemeanor). Steakley handcuffed Booker with his hands behind
his back and placed him in the cruiser of another ORPD officer, Lewis Ridenour, so that
Booker could be taken to the police station. Ridenour left the scene at approximately
12:19 p.m. The officers allowed William Booker to depart without issuing a citation for
his expired plates and without trying to recover the marijuana in the floorboard.

        Ridenour and Booker arrived at the police station at 12:21 p.m., followed shortly
thereafter by Steakley. Steakley placed Booker in an interview room at the station.
After Steakley read Booker his Miranda rights, Booker offered to forfeit the money
Steakley found in Booker’s pockets in order to be released on citation, while claiming
that he earned the cash pouring concrete. Ridenour also noticed that Booker was
“fidget[ing] and try[ing] to put his hands in the back of his pants,” prompting Ridenour
to move Booker’s handcuffs from his back to his front. When Ridenour stepped out of
the interview room for a moment, Booker slammed the door shut and leaned against the
door to barricade it. Ridenour, Steakley, and a police sergeant forced themselves into
the interview room and wrestled Booker to the ground to regain control over him. The
officers searched the room for contraband, patted down Booker a second time, and shook
his pants by pulling them up until they were loose and jarring them to dislodge any
articles jammed “inside of his pants or in [his] boxers.” The officers did not find
anything.

        Ridenour next took Booker to the Anderson County Detention Facility in
Clinton, Tennessee, arriving at approximately 1:20 p.m. According to Ridenour, Booker
No. 11-6311        United States v. Booker                                         Page 4


fidgeted throughout the drive. Upon arrival, Ridenour discussed Booker’s situation with
Jerry Shelton, a sheriff’s deputy. The detention facility did not have a policy of strip
searching all new detainees, and there is no indication whether Booker was going to be
placed in the general population of the facility. However, based on suspicion, Shelton
agreed to strip search Booker to determine if he was concealing contraband in his
buttocks. Shelton and another officer took Booker into a small room where newly
booked inmates typically showered, asked him to remove his clothing, and performed
a visual inspection of his body. Shelton asked Booker to bend over and spread his
buttocks; when Booker complied, Shelton claimed he could see “a small string
protruding from [Booker’s] anus.” Id. at 109. After Shelton asked Booker about the
object, Booker moved his hand to cover the area and tried to push the object further into
his rectum. This led to another altercation during which Booker had to be restrained by
officers. Shelton’s supervisor ordered him to take Booker to a hospital immediately.

       At 2:28 p.m., sheriff’s deputies transported Booker to Methodist Medical Center
in Oak Ridge. Booker was shackled and covered only in a blanket because the officers
did not believe there was sufficient time to get him dressed. Shelton rode in the backseat
alongside Booker, and said Booker was “squirmish” and “trying to go to the rear end of
his body and force something further up into” his rectum. In the meantime, Officer
Steakley had traveled separately to the hospital. Before Booker arrived, Steakley told
Dr. Michael LaPaglia, the attending physician in the emergency room, that Steakley
strongly suspected that Booker had drugs in his rectum.

       This was not the first time that officers had brought a suspect to LaPaglia so that
he could perform a digital rectal examination, that is, a procedure in which a physician
inserts a finger into the patient’s anus to probe the rectum. This was the third time that
officers with the Anderson County Sheriff’s Department had sought LaPaglia’s
assistance with this type of procedure within three years.

       At 2:50 p.m., the cruiser arrived at the hospital. Although Booker denied having
anything in his rectum, had no physical symptoms, and had normal vital signs, LaPaglia
proceeded without waiting. According to LaPaglia, the possibility of an individual
No. 11-6311        United States v. Booker                                             Page 5


hiding drugs in his rectum raised “a number of concerns” because “[t]he rectum is a part
of the body that absorbs drugs very readily,” and at a high dosage, such absorption may
be fatal. LaPaglia asserts that this is true even when a person does not initially manifest
symptoms of drug absorption, since “the drug could possibly not be absorbed enough at
that time for [a physician] to see any signs of the drug.” In the presence of Steakley,
Ridenour, Shelton, and an unnamed officer, LaPaglia “explained to [Booker] what my
position was as an emergency physician and that there was suspicion that he had some
sort of drug in his rectum and that as an emergency physician I had to assure that he did
not, and if he did, that I had to remove it because his life could be in danger.”

       Booker—still naked and handcuffed—denied hiding drugs in his rectum and
refused to submit to a digital rectal examination. LaPaglia replied that Booker “really
did not have a choice because if my suspicion was high enough to think that he had some
sort of dangerous substance in his rectum, then it was my duty to get it out.” LaPaglia
recalled that the officers did not direct him to do anything to Booker. During the
suppression motion hearing, LaPaglia reiterated that his “duty” was medical in nature:

       Q.      . . . . In a situation where you suspect somebody to have narcotics
               inside them, can you in such a life-threatening situation take any
               lack of consent at face value?
       A.      No.
       Q.      Why not?
       A.      As an emergency physician, if someone’s life is in danger and .
               . . I feel that the person is not aware of the danger, then I have to
               take control of the situation and do what I need to do to save their
               life or prevent any harm to them.

LaPaglia warned Booker that if he did not cooperate, LaPaglia would administer muscle
relaxants or, if necessary, paralyze Booker in order to perform the rectal examination.

       At this point, LaPaglia claims that Booker gave oral consent to a rectal
examination. There is nothing in the medical record indicating consent, and none of the
other witnesses present (Registered Nurse Tammy Jones, Officer Steakley, Deputy
Shelton, and Booker) testified that any consent was given. Not even LaPaglia contended
that Booker consented to the paralyzation procedure.
No. 11-6311        United States v. Booker                                        Page 6


       LaPaglia first performed the rectal examination on Booker without medication.
But Booker contracted his anal and rectal muscles while LaPaglia was attempting to
examine him, preventing LaPaglia from inserting a finger in Booker’s anus. As LaPaglia
said, “If an individual does not want you to enter their rectum, you are not going to.”
Id. at 140. LaPaglia ordered a nurse to inject muscle relaxants into Booker’s left
buttock. On the second attempt, Booker remained uncooperative and LaPaglia could not
complete the examination, but he could feel a foreign object inside Booker’s rectum,
convincing LaPaglia that completion of the rectal examination was imperative. Finally,
LaPaglia directed an emergency room nurse, Tammy Jones, to administer a sedative and
a paralytic agent to Booker intravenously, and had him intubated to control his
breathing. At 4:12 p.m., Booker was intubated. He remained intubated for about an
hour, unconscious for twenty to thirty minutes, and paralyzed for seven to eight minutes.
While Booker was paralyzed, LaPaglia removed a rock of crack cocaine, greater than
five grams, from Booker’s rectum. LaPaglia then turned over the crack rock to Officer
Steakley, who took it for evidence.

       A federal grand jury indicted Booker on one count of possession with intent to
distribute more than five grams of cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(B).
Booker moved to suppress the crack cocaine on Fourth Amendment grounds. He argued
that Steakley lacked probable cause to arrest him for marijuana possession and that his
post-arrest treatment was unreasonable under the Fourth Amendment. Among other
reasons, Booker asserted that the digital rectal examination was an unreasonable
invasion of his personal privacy, dignity, and liberty to refuse medical treatment.

       After holding an evidentiary hearing on the motion, at which Steakley, Ridenour,
Shelton, LaPaglia, Jones, and Booker all testified, the magistrate judge recommended
denying Booker’s motion. The magistrate judge found that all aspects of the traffic stop
complied with the Fourth Amendment, and concluded that the digital rectal examination
was lawful because it was not a “search” under the Fourth Amendment, and even if it
was a “search,” LaPaglia and the officers acted reasonably under the circumstances. The
No. 11-6311        United States v. Booker                                         Page 7


district judge adopted the magistrate judge’s recommendations in full. See United States
v. Booker, No. 3:10-CR-44, 2010 WL 4884675, at *5–*8 (E.D. Tenn. Nov. 24, 2010).

       A jury convicted Booker as charged on February 2, 2011. This appeal followed.

                                             II.

       Booker’s Fourth Amendment rights were violated. The officers brought Booker
to LaPaglia and stood by while LaPaglia performed a highly intrusive and dehumanizing
procedure on Booker without his consent. On the facts of this case, LaPaglia’s actions
are attributable to the state government and were so unreasonable as to shock the
conscience. Because this conduct is sufficiently deliberate and culpable, suppression of
the evidence was a proper remedy.

                                    A. State Action

       First, the officers’ participation, knowledge, and custody created a sufficiently
close nexus to make LaPaglia’s conduct attributable to the police.           The Fourth
Amendment provides that “[t]he right of the people to be secure in their persons . . .
against unreasonable searches . . . shall not be violated.” U.S. Const. amend. IV. This
provision is understood to refer to searches by, or made possible by, government
officers. It is true that, as the Supreme Court stated in United States v. Jacobsen, 466
U.S. 109, 113 (1984), the Fourth Amendment is “wholly inapplicable to a search or
seizure, even an unreasonable one, effected by a private individual not acting as an agent
of the Government or with the participation or knowledge of any governmental official.”
(internal quotation marks omitted). But that is not the case here.

       When police officers bring a suspect in custody to a purportedly independent
actor, and stand by without interfering while the actor unlawfully batters the subject in
a way that the police clearly could not, it can hardly be argued that resulting evidence
is admissible. In some circumstances this must be true no matter what the intent of the
independent actor. Otherwise, for instance, police could take a suspect to a local town
thug who enjoyed beating people up, and let the suspect take a pounding until he gave
the location of the loot. This would make no more sense than putting the suspect in a
No. 11-6311           United States v. Booker                                                    Page 8


lion’s cage, and saying that the lion, in scratching the suspect, was acting independently
because it did not intend to help the police. In these situations, of course, the police
could not merely stand by, and if they did so, their actions would incur Fourth
Amendment responsibility. A contrary rule would eviscerate fundamental Fourth
Amendment protections.

         As the Supreme Court has indicated, whether a private individual’s conduct is
imputed to the government “turns on the degree of the Government’s participation in the
private party’s activities, a question that can only be resolved ‘in light of all the
circumstances.’” Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614–15 (1989)
(quoting Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971)). LaPaglia must be
treated as a government agent for Fourth Amendment purposes because the suspect was
in the physical control of the police, the police knew what LaPaglia was going to do, the
police knew that Booker did not consent, and a reasonable police officer would know
that the doctor did not, independent of police direction, have the legal authority to
intubate and paralyze the suspect without his consent.

         The Government does not really contest that Booker was in the physical control
of the police, or that the police knew what LaPaglia was going to do.

         The district court did suggest that Booker consented, but nothing in the record
reflects that Booker authorized the performance of the digital rectal examination with
paralysis and intubation.1 Despite the absence of anything indicating consent in the
medical record or in the testimony of any other witness who was present during the
procedure (Registered Nurse Tammy Jones, Officer Steakley, Deputy Shelton, or
Booker), the district court appears to have credited LaPaglia’s testimony that Booker
consented. However, the Report and Recommendation’s statement that Booker “agreed
to submit to a [digital rectal examination]” does not make any indication of the scope of
the consent that Booker gave.


         1
           The Report and Recommendation states “LaPaglia asked the Defendant for his consent to a
digital rectal examination (‘DRE’). The Defendant initially refused, but then agreed to submit to a DRE.”
Report and & Recommendation, 10. The district court adopted the Report and Recommendation “in its
entirety.” Booker, 2010 WL 4884675, at *8.
No. 11-6311        United States v. Booker                                            Page 9


       To find that Booker gave informed consent to intubation and the use of
paralyzing drugs is not possible based on the record. According to LaPaglia’s testimony,
he explained the situation to Booker as follows:

       A: I told him that I needed to do a rectal exam. I asked him if I could do
       so. Initially he said, no. I explained to him that at this point in the
       Emergency Room he really did not have a choice because if my
       suspicion was high enough to think that he had some sort of dangerous
       substance in his rectum, then it was my duty to get it out. And that we
       could do it a number of different ways. I told him that I would prefer if
       he cooperated and allow me to do the rectal exam, but if he did not
       cooperate, then I was going to be forced to administer medications to
       relax him so that I can do the rectal exam.
                I further explained that if that did not work, then I would have to
       go to the extreme and actually paralyze him in order to do the rectal
       exam. I told him that I did not want to go that far. I would rather that
       he cooperate and we just do the rectal exam and get it over with. At that
       point he agreed to do the rectal exam.
       ....
       Q. What happened during this exam?
       A. The patient got into the proper position. I prepared to do the rectal
       exam. He would not allow me to do so. He contracted his anal and
       rectal muscles so that I could not get my finger inside of his rectum.
       Q. This was absent any sort of sedation?
       A. Correct.
       Q. Then what happened?
       A. As I initially told him, if he did not cooperate, I was going to have to
       give him medication to sedate him in order to do the exam. After the
       initial attempt to do the exam which failed, I then ordered the nurse to
       administer ten milligrams of a drug called Midazolam which usually
       sedates an adult enough to relax all of their musculature so I can do the
       exam.
       Q. Did you in fact sedate the defendant?
       A. I did.
       Q. What happened after he was sedated?
       A. I waited approximately ten to 15 minutes for the medicine to take full
       effect. I reattempted the rectal exam.
       Q. What happened on your reattempt?
       A. I was more successful in getting into his rectum at that point because
       he was sedated and with the tip of my finger I could feel a foreign object
       in his rectum. He was still conscious enough to contract his muscles
       enough so that I could not do a complete rectal exam and remove the
       object.
       Q. So what step did you take next?
No. 11-6311         United States v. Booker                                       Page 10


       A. At that point I was convinced beyond any doubt that there was
       something in his rectum and that I had to do whatever was necessary to
       get it out. I went to the next step which I had explained previously to the
       patient and that was to do paralysis. I administered a combination of
       medications which paralyze every muscle in the body and I also had to
       stick a tube down his lungs in order to take over his breathing, basically
       to control his physiology and keep him alive while he was paralyzed.

(Emphasis added.)

       LaPaglia directly testified that consent was not given for the use of the paralyzing
drug, Succinylcholine. In response to defense counsel’s question, “Did Mr. Booker
consent for you to use [Succinylcholine] in order to remove this object?”, LaPaglia
answered “No.”

       Viewing the evidence in the light most favorable to the Government, it appears
that the most that Booker may have verbally consented to was an undrugged digital
rectal examination as a way to avoid being paralyzed by LaPaglia. LaPaglia went
beyond even the broadest view of consent and used a paralyzing drug which he admitted
Booker did not consent to. On the entire evidence, Booker did not consent to a digital
rectal examination with paralysis and intubation.

       Finally, no reasonable police officer could believe that, without direction from
the police, and over the clear refusal to consent by a conscious and competent patient,
a doctor could lawfully go ahead and perform such a procedure. Even if LaPaglia was
motivated by benevolent medical ideals, his actions in paralyzing and intubating Booker
and performing a rectal examination without his express or implied consent constitute
medical battery. Indeed, under Tennessee law, there is medical battery if “the patient
[did not] authorize performance of the procedure.” Blanchard v. Kellum, 975 S.W.2d
522, 524 (Tenn. 1998). There is of course a privilege generally recognized in tort law
for doctors to deliver medically indicated emergency care when the patient cannot make
the choice pro or con, often because the patient is unconscious. Dan B. Dobbs, The Law
of Torts, § 106, at 247 (2000); see also Restatement (Second) of Torts § 892D & cmt. a.
Tennessee apparently accepts this exception to the consent requirement. See Ray v.
Scheibert, 484 S.W.2d 63, 71 (Tenn. Ct. App. 1972). In this case, however, not only was
No. 11-6311        United States v. Booker                                       Page 11


Booker conscious when he was presented to LaPaglia, but Booker’s statements in no
way indicate authorization of the intubate-and-paralyze procedure. This distinguishes
Booker’s case from a situation in which the police present an unconscious suspect to a
hospital. See, e.g., United States v. Black, No. 88-5266, 1988 WL 107375 (6th Cir., Oct.
14, 1988).

       In short, the police effectively used Dr. LaPaglia as a tool to perform a search on
Booker’s person. In these particular circumstances, Dr. LaPaglia’s medical purposes do
not immunize the procedures from Fourth Amendment scrutiny.

       The two cases the Government relies on in this connection do not compel a
different result. The Government relies upon United States v. Lambert, 771 F.2d 83, 89
(6th Cir. 1985), and the Ninth Circuit’s holding in United States v. Attson, 900 F.2d
1427, 1431–33 (9th Cir. 1990).

       The language relied upon in Lambert is dictum, and relies on a case that is
distinguishable. In Lambert, the defendant hired a housekeeper who observed evidence
of drug use. Motivated by concerns about the negative effects of drug use, the
housekeeper contacted the FBI, and by her own volition and without suggestion from the
FBI, took contraband from Lambert’s home and gave it to the FBI. Lambert, 771 F.2d
at 86. We upheld the denial of a suppression motion. In doing so, we recognized the
Supreme Court’s holding that the Fourth Amendment “does not apply to a search or
seizure, even an unreasonable one, conducted by a private individual not acting as an
agent of the government or with the participation or knowledge of any governmental
official.” Id. at 89 (citing United States v. Jacobsen, 466 U.S. 109 (1984); Coolidge,
403 U.S. at 487). We stated two requirements for finding that a person is acting as a
police agent for Fourth Amendment purposes: “First, the police must have instigated,
encouraged, or participated in the search. Second, the individual must have engaged in
the search with the intent of assisting the police in their investigative efforts.” Id.
(citation omitted). (The first part of this test is met in Booker’s case because the
officers’ role in bringing Booker to the hospital and informing LaPaglia of their
suspicion amounted to an instigation of the search.) The Government in Booker’s case
No. 11-6311        United States v. Booker                                        Page 12


assumes without conceding that the first requirement is met, but challenges the second.
In Lambert, in contrast, our analysis of whether the housekeeper was an agent focused
entirely on the first requirement, and conceded that the housekeeper had the intent of
assisting the police. The stated requirement that the housekeeper have intended to assist
the police was thus entirely unnecessary to our resolution of the Lambert case.

       The Lambert dictum does cite, however, United States v. Howard, 752 F.2d 220,
227 (6th Cir. 1985), a case in which a house fire created suspicion of insurance fraud.
The Howards’ insurance contract permitted the insurance company’s investigator to
enter the premises, and the investigator did so to look for arson. This much is clearly
private action, see Stone v. Wingo, 416 F.2d 857, 860–62 (6th Cir. 1969), but state police
also participated in the investigation. We held that the testimony of the investigator was
admissible because even if the government participated, the insurance investigator’s
intent was entirely independent of the purposes of a criminal investigation and the
insurance investigator was rightfully on the property. See id. at 227–28. This holding
was adopted by this court sitting en banc. See United States v. Howard, 770 F.2d 57, 62
(6th Cir. 1985) (en banc). The actions of Dr. LaPaglia, in contrast to those of the
investigator in Howard, were not colorably lawful because of the clear lack of consent.
Moreover, the access to the property was not “presented” to the investigators in the way
that Booker was presented to LaPaglia. The Howard case would be more analogous to
Booker’s case if the police officers in Howard had had exclusive control of access to the
premises and had permitted the private investigator to enter, with the police having
objective knowledge that neither the police nor the private investigator had a right to
enter the premises. The facts in Howard were far from that. In Howard, the insurance
investigator would have investigated the charred remains of the Howards’ house even
without police participation.

       Indeed, we distinguished Howard on similar grounds in United States v. Hardin,
539 F.3d 404, 417–20 (6th Cir. 2008). In that case, we held that for Fourth Amendment
purposes an apartment manager became an agent of the government when officers
requested that the manager enter an apartment to verify the presence of a suspect. The
No. 11-6311        United States v. Booker                                       Page 13


government argued that upon learning about his tenant’s criminal record, the manager
had an independent business motivation for entering the apartment. Id. at 417. We
distinguished Howard on the ground that in Howard,

       “[t]he insurance company investigator was rightfully on the property to
       determine the liability of the insurance company” in light of a consent
       clause in the insurance contract. Howard, 752 F.2d at 227–28. Here, in
       contrast, Tennessee law provides that a “landlord may enter the dwelling
       unit without consent of the tenant in case of emergency” and defines
       emergency as “mean[ing] a sudden, generally unexpected occurrence or
       set of circumstances demanding immediate action.” Tenn. Code Ann.
       § 66–28–403(b). The officers’ mere suspicion that a fugitive felon might
       be on the premises does not constitute an emergency, and, even if it did,
       surely the “immediate action” contemplated would not include the
       landlord’s unarmed, unescorted entry into the unit where the fugitive was
       suspected to be.

Id. at 418 (modification in original). Just as the landlord in Hardin could not enter the
premises in the absence of an emergency under Tennessee law, Dr. LaPaglia could not
intubate and paralyze a conscious and competent Booker except with consent under
Tennessee law. Howard does not control Booker’s case.

       Finally, the lack of Booker’s consent also distinguishes the Ninth Circuit case
upon which the Government relies, United States v. Attson, 900 F.2d 1427 (9th Cir.
1990). In Attson, the suspect consented to removal of blood for medical purposes. See
id. at 1429. The Ninth Circuit indeed reasoned that “the fourth amendment will not
apply when the private party was acting for a reason that is independent of [an
investigative or administrative] governmental purpose.” Id. at 1433. But the court went
on to explain the underlying purpose for such a requirement: “to ascertain the motives
underlying governmental conduct that is purportedly subject to the fourth amendment.”
Id. The actions of the police in standing by while a suspect in custody is medically
treated against his will go directly to the motives underlying governmental conduct in
a way that a consensual taking of blood, or other consented treatment, does not.

       This case is the unusual one in which the police effectively use a doctor who is
known to conduct unconsented intrusive procedures when suspects in custody are
No. 11-6311        United States v. Booker                                      Page 14


presented by the police. In this context, the doctor’s intent to provide medical care,
assuming it is genuine, does not relieve the police of responsibility. A holding of
government responsibility does not conflict with our holding in Howard or the Ninth
Circuit’s holding in Attson. Focusing too much on the language of those cases and not
on the actual holdings would turn them into an engine for circumventing the Fourth
Amendment.

       Our holding is supported by decisions in other circuits, which require that a
private actor’s independent motivation be “legitimate.” Kartorie v. Dunham, 108 F.
App’x 694, 699 (3d Cir. 2004); United States v. Souza, 223 F.3d 1197, 1202 (10th Cir.
2000); United States v. McAllister, 18 F.3d 1412, 1418 (7th Cir. 1994); United States v.
Walther, 652 F.2d 788, 792 (9th Cir. 1981). Thus, even looking at Dr. LaPaglia’s
motivation, it was illegitimate in the following sense: A doctor who was solely
interested in resolving the “medical emergency” could have given Booker the option of
privately using a toilet (although thereby disposing of the evidence). The doctor’s
failure to present such a choice showed that he was acting at least in part to ensure
retrieval of the hidden drugs.

       Of course the responsibility of the government does not mean that the search
results must be suppressed. If police take a suspect in custody to a doctor and require
the suspect to be searched by a doctor against his consent, this is permissible if the
search is constitutionally reasonable. That is the next question.

                           B. Reasonableness of the Search

       A comparison of this case to Rochin v. California, 342 U.S. 165 (1952), and
Winston v. Lee, 470 U.S. 753 (1985), shows that the digital rectal examination was
unreasonable. In Rochin, three deputy sheriffs forced their way into Rochin’s bedroom
based on information that Rochin was selling narcotics. The deputies saw two capsules
sitting on his nightstand and asked Rochin whom the capsules belonged to. In response,
Rochin grabbed the capsules and swallowed them. The deputies then handcuffed Rochin
and took him to the hospital where the police directed a doctor to force “an emetic
solution through a tube into Rochin’s stomach against his will.” Id. at 166. The stomach
No. 11-6311        United States v. Booker                                       Page 15


pumping caused Rochin to vomit up the two capsules, which were found to contain
morphine. The Supreme Court held that Rochin’s conviction for possessing these
morphine tablets was so fundamentally unfair as to violate the Due Process Clause. The
Court said the deputies’ conduct “shocks the conscience” and was “too close to the rack
and screw to permit of constitutional differentiation.” Id. at 172.

       The similarity between the present case and Rochin is apparent. While factual
and legal differences exist, what shocked the conscience in Rochin was the use of the
forced emetic. Forced paralysis, intubation, and digital rectal examination is at least as
shocking as stomach pumping. The main legal difference is that Rochin analyzed the
practice under the “fundamental fairness” standard of the Due Process Clause of the
Fourteenth Amendment, while Booker bases his challenge on the Fourth Amendment’s
prohibition of “unreasonable searches,” which applies to the states via the Due Process
Clause of the Fourteenth Amendment. See Wolf v. Colorado, 338 U.S. 25, 28 (1949).
However, this difference is immaterial because investigative conduct that would shock
the conscience for purposes of the Due Process Clause is “unreasonable” for purposes
of the Fourth Amendment. As the Supreme Court explained in County of Sacramento
v. Lewis, 523 U.S. 833, 849 n.9 (1998), under modern doctrine, Rochin “would be
treated under the Fourth Amendment, albeit with the same result.” In short, the present
case cannot be distinguished from Rochin in any meaningful way. Booker was subjected
to an unreasonable search in violation of his Fourth Amendment rights.

       This conclusion is squarely supported by the Supreme Court’s holding in
Winston v. Lee, 470 U.S. 753 (1985). In Lee, a shopkeeper wounded his assailant during
an attempted robbery. Lee was soon found in the neighborhood with a bullet wound to
his shoulder and was arrested by the police. The police went to state court to seek an
order directing Lee to undergo surgery. The Supreme Court concluded that requiring
Lee to undergo surgery involving general anesthesia would be an unreasonable search.
See id. at 755–56, 767.

       In reaching the conclusion that the forced surgery would be unconstitutional, the
Court found that the following three factors weighed against its substantive
No. 11-6311        United States v. Booker                                        Page 16


reasonableness: (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.” Id. at 761–62. These factors, taken together,
weigh even more strongly against the reasonableness of the procedure used on Booker.

       First, the degree of risk is at least comparable to that in Lee, which involved a
general anesthetic but not a paralyzing agent. In Lee, the Court of Appeals had the
benefit of evidence—including an x-ray confirming the presence of the
bullet—presented at three hearings. Based on this evidence, the Court of Appeals had
said the risk to Lee was “minimal.” The Supreme Court noted uncertainty about the
medical risk and stated that “the very uncertainty militates against finding the operation
to be ‘reasonable.’” Id. at 764 & n.7, 766. In this case, Booker emphasizes the risk of
the paralysis and intubation while the Government emphasizes the routine nature of the
procedure in an emergency room. As in Lee, although the medical risks are apparently
not extremely high, they are the subject of dispute, and that very uncertainty may weigh
against a finding of reasonableness. See id.

       Second, in comparison with Lee, the affront to human dignity in this case is
compelling. The Court in Lee reasoned:

       When conducted with the consent of the patient, surgery requiring
       general anesthesia is not necessarily demeaning or intrusive. In such a
       case, the surgeon is carrying out the patient’s own will concerning the
       patient’s body and the patient’s right to privacy is therefore preserved.
       In this case, however, the Court of Appeals noted that the
       Commonwealth proposes to take control of respondent’s body, to “drug
       this citizen—not yet convicted of a criminal offense—with narcotics and
       barbiturates into a state of unconsciousness,” and then to search beneath
       his skin for evidence of a crime. This kind of surgery involves a virtually
       total divestment of respondent’s ordinary control over surgical probing
       beneath his skin.

Id. at 765 (quoting Lee v. Winston, 717 F.2d 888, 901 (4th Cir. 1983)). Here, there is not
only a probe into a tranquilized subject. Booker, naked and handcuffed, was paralyzed,
intubated, and anally probed without his consent. As the Fifth Circuit stated in United
No. 11-6311          United States v. Booker                                        Page 17


States v. Gray, 669 F.3d 556, 565 (5th Cir. 2012), this type of intrusion “is one of the
greatest dignitary intrusions that could flow from a medical procedure.” “Such a
procedure is degrading to the person being probed—both from his perspective and
society’s.” Id., vacated on other grounds, 133 S. Ct. 151 (2012).           The affront to
personal dignity in Booker’s case is categorically greater than what was not permitted
in Lee.

          Third, it is true that society’s interest in determining guilt or innocence is “of
course of great importance.” Lee, 470 U.S. at 762. Yet, in Lee, the court found retrieval
of the bullet not to be a compelling need because other evidence existed. Id. at 765–66.
This result can be contrasted with another relevant Supreme Court case, Schmerber v.
California, 384 U.S. 757 (1966), which held blood tests used on suspected drunk drivers
to be reasonable. Such blood tests are “highly effective . . . [e]specially given the
difficulty of proving drunkenness by other means.” Lee, 470 U.S. at 762–63. The
present case is closer to Lee than to Schmerber in this respect: it is easier for society to
prosecute drug possession crimes without the need for medical procedures than it is to
prosecute DUI crimes. Furthermore, while reasonableness under the Fourth Amendment
is not a least-intrusive-means test, see Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,
663 (1995), it is relevant that far less intrusive means were available to investigate
whether Booker was hiding contraband in his rectum. For example, the established
policy of the United States Customs and Border Protection is first to attempt an x-ray to
confirm the presence of contraband. If further medical examination is necessary,
officers consider whether to engage in a monitored bowel movement, and only engage
in an involuntary body cavity search after obtaining a court order. See U.S. Customs and
Border Patrol, CIS HB 3300-04B, Personal Search Handbook (2004), available at
http://foiarr.cbp.gov/streamingWord.asp?i=7. In this case, LaPaglia testified that he
could have done an x-ray. See Supp. Hr’g Tr., 138–39, July 18, 2010. When less
intrusive means to investigate were available but not used and when the prosecution has
other ways to establish guilt, this diminishes the weight that should be given to using an
involuntary and invasive medical procedure to further society’s interest in fairly and
accurately determining guilt or innocence.
No. 11-6311         United States v. Booker                                        Page 18


        The factors applied by the Supreme Court in Lee thus compel the conclusion that
the search in this case violated the Fourth Amendment. In addition, when there was time
to obtain a court order and the police declined to seek one, the suspect’s privacy interests
should be given particular solicitude.

        Supreme Court precedent thus shows that the unconsented paralysis, intubation,
and rectal examination amounted to an unreasonable search, which violated Booker’s
Fourth Amendment rights. We of course do not address cases that may be materially
different, such as where the police have obtained a court order, where the police were
not aware of the extent of the bodily intrusion, where the police were not aware of the
lack of necessary consent, where the suspect was not in the control of the police, where
the private actor was independently privileged to act, or where other exigencies were at
play.

                               C. The Exclusionary Rule

         Because the officers and LaPaglia were sufficiently culpable in violating
Booker’s constitutional rights, the exclusionary rule applies notwithstanding the
Supreme Court’s ruling in Herring v. United States, 555 U.S. 135, 141 (2009). That case
held that the purpose of the exclusionary rule is to deter officials from violating the
Fourth Amendment, and the benefits of deterrence must outweigh the “rule’s costly toll
upon truth-seeking and law enforcement objectives.” Id. (quoting Pennsylvania Bd. of
Probation & Parole v. Scott, 524 U.S. 357, 364 (1998)). “To trigger the exclusionary
rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter
it, and sufficiently culpable that such deterrence is worth the price paid by the justice
system. . . . [T]he exclusionary rule serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring or systemic negligence.” Id. at
144.

        In this case, the rule will obviously deter the behavior of the officers who seek
to use willing “independent” doctors to probe in cases where a government-directed
investigating doctor could not. Indeed, the evidence that this was the third time in three
years that LaPaglia assisted the police suggests recurring behavior. This is not a
No. 11-6311          United States v. Booker                                               Page 19


situation in which the officers relied in good faith on the mistake of a magistrate or
judge, see United States v. Leon, 468 U.S. 920–21 (1984), or an erroneous entry in a
warrant database, see Herring, 555 U.S. at 146. It is irrelevant whether the officers and
LaPaglia acted in subjective good faith. The “‘good-faith inquiry is confined to the
objectively ascertainable question whether a reasonably well trained officer would have
known that the search was illegal’ in light of ‘all the circumstances.’” Herring, 555 U.S.
at 145 (quoting Leon, 468 U.S. at 922 n.23). Based on the circumstances of this case,
a reasonably well-trained officer and physician would have known that the search was
unlawful.

                                                III.

        The Government argues neither that the officers would have inevitably
discovered the crack cocaine, nor that admission of the evidence was harmless error.
Because the paralysis, intubation, and digital rectal examination violated Booker’s
Fourth Amendment rights, we have no need to address Booker’s other arguments.2 We
vacate Booker’s conviction and sentence, and remand to the district court for further
proceedings consistent with this opinion.




        2
          Booker’s other suppression arguments—that his initial arrest was not supported by probable
cause and that the police did not have a clear indication that contraband would be found in his
rectum—would provide at most alternative bases for suppression of the crack cocaine. Our vacatur of
Booker’s conviction and sentence makes it unnecessary to reach his argument that he was sentenced
improperly. Should Booker be convicted with admissible evidence, he can be sentenced consistent with
the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. See Dorsey v. United States,
132 S. Ct. 2321 (2012).
No. 11-6311        United States v. Booker                                        Page 20


                                  ________________

                                      DISSENT
                                  ________________

       JULIA SMITH GIBBONS, Circuit Judge, dissenting.                 I respectfully but
emphatically disagree with the majority’s conclusion that LaPaglia was a “state actor”
for Fourth Amendment purposes. In its ruling, the majority draws factual inferences not
permitted by this record and imposes a duty on law enforcement officers to interfere with
the work of physicians that is not in accord with reality, good judgment, or the law.
Because I would decide the “state actor” issue differently, I would not reach the question
of whether the “search” LaPaglia performed was reasonable. I therefore dissent.

                                             I.

       The majority opinion hinges on the premise that “the police knew what LaPaglia
was going to do” when they decided to take Booker to the Methodist Medical Center
(“Methodist”). (Maj. Op. at ¶ 27.) It argues that “[t]his case is the unusual one in which
the police effectively use a doctor who is known to conduct unconsented intrusive
procedures when suspects in custody are presented by the police.” (Id. at ¶ 60.) The only
record evidence asserted in support of this claim is LaPaglia’s testimony that the
Anderson County Sheriff’s Department had sought LaPaglia’s assistance in removing
foreign objects from individuals in its custody on three occasions in the three years prior
to his testimony at the suppression hearing. (Id. at ¶ 9; see also R. 32, Suppression Hr’g
Tr., at #245.)

       The majority leaps from this testimony to unwarranted inferences about its
import. First, and most importantly, LaPaglia’s testimony is no evidence at all with
respect to the officers in this case. There is no indication that the officers involved in
Booker’s arrest and search had any knowledge of these prior incidents, and the conduct
or knowledge of different deputies on different occasions cannot be imputed to them.
Indeed, there is no evidence that any of the officers involved in this case had even met
LaPaglia before the incident. The first known interaction between LaPaglia and any of
the officers involved in this case came when Steakley arrived at the hospital and told
No. 11-6311        United States v. Booker                                        Page 21


LaPaglia about Booker’s impending arrival.         Moreover, LaPaglia’s admission is
ambiguous as to whether it refers to the removal of objects from rectal cavities generally,
or to the particular tactics he used to remove the crack cocaine from Booker’s rectum.
The statement also sheds no light on whether LaPaglia was able to obtain consent before
performing an anal cavity search on these three prior occasions. Booker did not develop
a record in the district court about the officers’ awareness of LaPaglia’s previous
interactions with the Sheriff’s Department or LaPaglia’s conduct on these previous
occasions. The majority can only reach its conclusion about what the officers knew in
this case by making numerous assumptions that lack support in the record. These
assumptions are especially problematic on appeal because of our obligation to review
the record in the light most favorable to the party that prevailed below—in this case, the
government. United States v. Campbell, 549 F.3d 364, 370 (6th Cir. 2008).

       Furthermore, the record amply supports the district court’s conclusion that the
officers believed Booker had a serious medical issue requiring the attention of a
physician. Shelton testified that after Booker’s strip search all but confirmed he had a
foreign object in his rectum, he “figured it was a medical situation” and reported the
matter to his supervisor at the county jail. (R. 32, Suppression Hr’g Tr., at #211.) His
supervisor told him to “take the defendant right to the hospital for his safety.” (Id. at
#212.) Ridenour also testified that the jail supervisor instructed them to “transport[]
[Booker] to Methodist Medical Center” after the strip search. (Id. at #188.) There is no
testimony supporting the idea that the officers intended to retain LaPaglia specifically
or a doctor with similarly low ethical standards generally for the sole purpose of
conducting an unlawful evidentiary search. It is also difficult to understand how the
officers could have harbored such an intent. There is no evidence in the record
suggesting that the officers knew that LaPaglia was a physician at this hospital, that he
would be on duty at the precise time they concluded Booker was in need of medical
attention, or that doctors at Methodist’s emergency room had a history of assisting law
enforcement in unlawful searches. Finally, all observers of this incident agreed that
LaPaglia, not the officers, made the decision to pursue the anal cavity sweep to the point
of intubating and paralyzing Booker. While the officers explained Booker’s situation
No. 11-6311         United States v. Booker                                         Page 22


to LaPaglia, they did not attempt to dictate his treatment methods. A district judge
ruling on this question in the first instance may have been able to infer a tacit agreement
between the officers and LaPaglia, but that is not a conclusion a panel of this court may
draw when reviewing an order denying a motion to suppress.

        I agree with the majority that law enforcement officers may not present a
criminal suspect to a doctor who, like the “local town thug,” (Maj. Op. at ¶ 26), they
know with some certainty will perform acts on the defendant the police could not
perform themselves without violating the Fourth Amendment. But the record, read with
the proper standard of review in mind, does not support this view of the case. The
district court reasonably found that the officers took Booker to the emergency room
because they believed he had a serious health problem. There is no evidence that the
officers had met LaPaglia prior to this incident, knew he would be at the emergency
room they took Booker to at that particular time of day, or knew that he had previously
worked with the Sheriff’s Department. In the absence of a record establishing these
facts, the premise that LaPaglia was a mere “tool” of the officers is unsupportable.

                                              II.

        I also take issue with the majority’s conclusion that because a reasonable officer
“would know that [LaPaglia] did not, independently of police direction, have the legal
authority to intubate and paralyze the suspect without his consent,” LaPaglia’s actions
should be imputed to the officers. (Maj. Op. at ¶ 27.) The unlawfulness of LaPaglia’s
actions standing alone is not relevant to analyzing whether or not he was a state actor.
The state action doctrine “turns on the degree of the Government’s participation in the
private party’s activities,” not the nature of those activities. Skinner v. Ry. Labor Execs.’
Ass’n, 489 U.S. 602, 614–15 (1989). Nonetheless, as the majority argues, when a private
individual engages in patently unlawful conduct in the presence of law enforcement and
reasonable officers would understand they had a duty to stop that conduct, that person
should be deemed a “state actor” for Fourth Amendment purposes. The majority’s
analogy to the village “thug” is again instructive. If the police handed a suspect over to
such a person, and that person began to “batter[] the subject in a way that the police
No. 11-6311        United States v. Booker                                        Page 23


clearly could not,” the officers would be responsible for allowing that beating to happen,
even if they were not aware of the thug’s intentions from the outset. (Maj. Op. at ¶ 26.)

       But the majority’s analogy does not decide this case. Doctors are not thugs; they
are legally licensed professionals trained to handle sensitive medical matters. Law
enforcement officers rightly defer to their judgment in their area of expertise.
Unfortunately, there are doctors who will abuse that trust, which is precisely what
happened in this case. LaPaglia told the officers that Booker was in a life-threatening
situation and that if LaPaglia did not perform an anal cavity sweep, Booker’s life was
at risk. He also told them that because this issue was potentially fatal, he had an
obligation as a physician to remove the foreign object lodged in Booker’s rectum even
if Booker refused consent to the procedure. A reasonable officer, untrained in medicine
or medical ethics, is not in a position to second-guess these assertions and should not be
disciplined for failing to do so through the suppression of evidence.

       The majority argues that LaPaglia created a false dilemma for the officers, that
he had no legal right to do what he did to Booker without Booker’s consent, and that less
intrusive measures for obtaining evidence were available to the officers. I agree with all
of these points, but I do not believe that they resolve this case. The issue here is not
whether a more reasonable option for obtaining evidence that did not offend Booker’s
personal autonomy was available in the abstract, but whether the officers are responsible
for LaPaglia’s conduct solely because they accepted his assessment of the situation. The
district court correctly answered this question in the negative. A doctor should not be
considered the agent of law enforcement officers who fail to intervene in his treatment
of a prisoner absent evidence that the officers understood the doctor’s representations
and actions were made in bad faith. No such evidence exists in this case. I therefore
cannot accept the majority’s conclusion that the officers should share in LaPaglia’s
culpability for the manner in which he conducted the medical examination.
No. 11-6311        United States v. Booker                                        Page 24


                                           III.

       The majority’s position reflects its concern that failure to suppress evidence in
cases like these will “eviscerate fundamental Fourth Amendment protections.” (Maj. Op.
at ¶ 26.) That concern is a weighty one. I agree with the majority that when a defendant
can demonstrate law enforcement officers used a physician as a mere instrument for
performing searches they could not perform themselves, it is appropriate to suppress
evidence the physician recovers. But the suppression remedy does not exist to punish
unlawful conduct generally. It is meant to deter misconduct by law enforcement that is
“sufficiently culpable that such deterrence is worth the price paid by the justice system.”
Herring v. United States, 555 U.S. 135, 144 (2009). By punishing the officers in this
case for a physician’s misconduct merely because the officers deferred to a doctor’s
representations about a medical issue, the majority takes the exclusionary rule far
beyond its permissible bounds.

       Such an expansion is particularly unnecessary in this case because doctors
already face substantial legal deterrents for engaging in conduct that would violate the
Fourth Amendment if undertaken by state officers. For instance, a doctor may face civil
liability under a medical battery theory if a physician performs a procedure on a patient
against his will. See Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998)
(“Performance of an unauthorized procedure constitutes a medical battery.”). A doctor
could also face disciplinary action from the Tennessee Board of Medical Examiners for
engaging in such conduct. See Tenn. Code Ann. 63-6-214(b)(4) (granting the Board
authority to discipline a physician on the grounds of “[g]ross health care liability or a
pattern of continued or repeated health care liability, ignorance, negligence or
incompetence in the course of medical practice”). Few doctors will be willing to
countenance such risks in order to help the police obtain evidence, and broad application
of the exclusionary rule is unnecessary to dissuade them from performing unlawful
searches.
No. 11-6311        United States v. Booker                                    Page 25


                                         IV.

       For these reasons, I would conclude that LaPaglia was not a “state actor” under
the Fourth Amendment. I would therefore affirm the judgment of the district court. I
respectfully dissent from the majority’s contrary holding.
