In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2881

United States of America,

Plaintiff-Appellee,

v.

Eunice Husband,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 98 CR 30050--Richard H. Mills, Judge.


Argued January 14, 2000--Decided August 22, 2000




  Before Flaum, Chief Judge, and Easterbrook and Ripple,
Circuit Judges.

  Flaum, Chief Judge. Defendant Eunice Husband
entered a conditional plea of guilty to one count
of possession of crack cocaine with intent to
distribute in violation of 21 U.S.C. sec.sec.
841(a)(1), (b)(1)(B). The defendant now appeals
the district court’s denial of his motion to
suppress evidence that he claims was obtained in
violation of the Fourth Amendment’s prohibition
against unreasonable searches and seizures. For
the reasons stated herein, we reverse and remand
for further proceedings consistent with this
opinion.


I.   Facts

  On March 12, 1998, the Springfield police
received a call from a neighborhood resident who
believed that drugs were being sold from a gray
four-door vehicle that was regularly parked in a
neighborhood driveway between 4:00 p.m. and 3:00
a.m. The caller stated that the car was occupied
by a male and a female who never entered the
residence at which the car was parked. In
addition, the caller told the police that
individuals would occasionally approach the
vehicle, speak with the male occupant, and leave
shortly thereafter.
  The Springfield police responded to this call
and began surveillance of the vehicle in
question. After a period of time during which the
car briefly left and then returned, the officers
approached the vehicle to ascertain whether the
occupants had permission to park in the driveway.
As three officers approached the vehicle, two of
the officers recognized the male occupant, the
defendant in this case, as someone who had been
involved in a prior incident involving a gun. The
officers ordered both occupants to show their
hands. The defendant refused to comply with the
officers’ orders. Instead, he lowered his hands
to his waist area and then raised his hands back
to his mouth. At this point, the officers noticed
what appeared to be a large knot on the inside of
the defendant’s left cheek.

  The officers removed the defendant from the
vehicle and arrested him. Upon arrival at the
Sangamon County Jail, the defendant was placed in
an observation cell and was kept under constant
surveillance. His hands remained handcuffed
behind his back. On both the ride to the jail and
during his time in the observation cell, the
defendant refused to open his mouth and responded
to the officers through clenched teeth.

  Because the defendant would not open his mouth,
the police began the process of obtaining a
search warrant. While awaiting the warrant, the
police noticed that the defendant was beginning
to twitch and sweat as if experiencing a seizure.
The defendant was then transported by ambulance
to Saint John’s Hospital. An officer accompanied
the defendant to ensure that he did not dispose
of anything in his mouth. On the way to the
hospital, an emergency medical technician
administered an I.V. to counteract the effect of
any drugs the defendant might have swallowed./1

  At approximately 11:00 p.m., an Illinois
associate circuit judge issued a warrant to
search "[t]he body of Eunice Husband" for
"illegal drugs, weapons, or contraband." The
issuance of the warrant occurred at about the
same time the defendant was received in the
emergency room. At the hospital, and before the
police knew that a warrant had been issued, the
police informed the attending doctor that they
were attempting to obtain a warrant to search the
defendant’s mouth. The defendant was repeatedly
asked to open his mouth voluntarily and was later
informed that a warrant had been issued and that
he should open his mouth. In addition, a brief
attempt was made to pry open the defendant’s
mouth with a ceramic spoon. None of these
attempts were successful. The doctor finally
informed the defendant that a drug would be
administered through an I.V. that would enable
the police to recover the items in his mouth if
he refused to comply with the warrant
voluntarily.

  The defendant was administered 40 mg. of
Amidate through an I.V. at approximately 11:22
p.m. According to the attending doctor, this
general anesthetic was administered both for
purposes of treating a possible drug overdose and
in order to comply with the warrant. Within three
minutes of the administration of the drug, the
defendant fell unconscious. Three small plastic
bags were subsequently recovered from the
defendant’s mouth. The bags contained a total of
20.3 grams of cocaine base. The defendant awoke
at approximately 11:40 p.m. and was returned to
the county jail. At approximately 1:00 a.m., the
defendant was shown a copy of the search warrant
permitting a search of his body.

  The defendant was charged in a one-count
indictment with possession of cocaine with intent
to distribute. He filed a motion to suppress the
drugs obtained from his mouth, arguing that they
were the fruits of an illegal search. In support
of this motion, the defendant argued that: (1)
the officers lacked justification for a Terry
stop; (2) giving a suspect an injection to carry
out a search was unlawful; (3) failing to show
the defendant the search warrant to give him an
opportunity to voluntarily comply was
unreasonable; and (4) the search warrant was
overbroad in describing the items to be seized.

  The magistrate judge’s Report and Recommendation
rejected all of the defendant’s claims. The
magistrate judge found sufficient justification
for a Terry stop and also rejected the argument
that the warrant was overbroad. In regard to the
injection and subsequent search, the magistrate
judge found that neither the injection nor the
failure to show the defendant a copy of the
warrant rendered the search unreasonable. The
magistrate judge also found that the drugs would
have been discovered even absent the allegedly
illegal search and that the inevitable discovery
doctrine would therefore allow the admission of
the evidence.

  The defendant renewed his claims as to the
illegality of the search before the district
court through objections to the magistrate
judge’s Report and Recommendation. After a de
novo review of those claims, the district court
adopted the findings of the magistrate judge and
denied the motion to suppress. The defendant pled
guilty, but reserved his right to appeal the
denial of the suppression motion. The defendant
now appeals, arguing that the district court
erred in refusing to exclude evidence of the
drugs seized from his mouth.

II.   Analysis

  The defendant contends that the district court
erred in finding that the police acted reasonably
in executing the warrant authorizing a search of
the defendant’s body. In considering such a
challenge, we review the district court’s
findings of fact for clear error, see United
States v. Duguay, 93 F.3d 346, 350 (7th Cir.
1996), and its determination as to the
reasonableness of the search de novo, see Ornelas
v. United States, 517 U.S. 690, 699 (1996);
Duguay, 93 F.3d at 350. "’Because the resolution
of a motion to suppress is necessarily fact-
specific, we give special deference to the
district court that heard the testimony and
observed the witnesses at the suppression hearing.’"
United States v. Gravens, 129 F.3d 974, 978 (7th
Cir. 1997) (quoting United States v. Stribling,
94 F.3d 321, 323 (7th Cir. 1996)).

A.

  The Fourth Amendment protects individuals
against unreasonable searches. See Ohio v.
Robinette, 519 U.S. 33, 39 (1996) (stating "that
the ’touchstone of the Fourth Amendment is
reasonableness’") (quoting Florida v. Jimeno, 500
U.S. 248, 250 (1991)). In determining whether a
search that intrudes below the surface of the
body is reasonable, courts must weigh a variety
of factors to determine whether society’s
interest in conducting the search outweighs the
individual’s interests in privacy and security.
See Winston v. Lee, 470 U.S. 753, 760 (1985);
Kraushaar v. Flanigan, 45 F.3d 1040, 1045 (7th
Cir. 1995). "In a given case, the question
whether the community’s need for evidence
outweighs the substantial privacy interests at
stake is a delicate one admitting of few
categorical answers." Winston, 470 U.S. at 760;
see Cooper v. California, 386 U.S. 58, 59 (1967)
("[W]hether a search and seizure is reasonable
within the meaning of the Fourth Amendment
depends upon the facts and circumstances of each
case . . . ."). Only after a careful examination
of the facts and circumstances of this case can
we determine whether the police acted reasonably
in anesthetizing the defendant to facilitate the
removal of drugs from his mouth.

  In considering the reasonableness of the actions
of the Springfield police, we are guided by
Supreme Court precedent that, although not
answering the question before us, provides a
framework for our analysis. Before the guaranties
of the Fourth Amendment were held to apply to the
States, the Court addressed the proper limits on
the police conduct of physically intrusive
searches under the Due Process Clause of the
Fourteenth Amendment. In Rochin v. California,
342 U.S. 165 (1952), the Court suppressed
evidence obtained when the police broke into a
suspect’s house and, after witnessing the suspect
swallow two capsules, initially attempted to
forcibly extract the capsules from his mouth and
then had his stomach pumped in order to recover
them. In holding that this was conduct that
"shock[ed] the conscience" and therefore violated
due process guaranties,/2 the Court stated that
"[i]llegally breaking into the privacy of the
petitioner, the struggle to open his mouth and
remove what was there, the forcible extraction of
his stomach’s contents--this course of proceeding
by agents of government . . . are methods too
close to the rack and the screw to permit
constitutional differentiation." Id. at 172.

  In Schmerber v. California, 384 U.S. 757
(1966), the Court considered the question whether
the State had violated an individual’s Fourth
Amendment rights when it compelled an individual
suspected of driving while intoxicated to submit
to a blood test. The Court recognized that "[t]he
intrusion perhaps implicated Schmerber’s most
personal and deep-rooted expectations of privacy,
and . . . thus required a discerning inquiry into
the facts and circumstances to determine whether
the intrusion was justifiable." Winston, 470 U.S.
at 760. After conducting such an inquiry, the
Court held that, under the circumstances
presented in Schmerber, the compelled blood test
was reasonable. See Schmerber, 384 U.S. at 771.
However, the Court was careful to state that
simply because "the Constitution does not forbid
the States minor intrusions into an individual’s
body under stringently limited circumstances in
no way indicates that it permits more substantial
intrusions, or intrusions under other
conditions." Id.

  The Supreme Court returned to the question of
physically invasive medical procedures under the
Fourth Amendment in Winston v. Lee, when it
considered the reasonableness of a compelled
surgical procedure to recover a bullet from
beneath the skin of a robbery suspect. Winston,
470 U.S. at 755. In that case, the Court analyzed
the reasonableness of the proposed surgical
procedure under what it called "the Schmerber
balancing test," id. at 763, and considered the
following factors: (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. After a consideration of these
factors, the Court determined that, under the
circumstances at issue in Winston, "the
Commonwealth . . . failed to demonstrate that it
would be ’reasonable’ under the terms of the
Fourth Amendment to search for evidence of this
crime by means of the contemplated surgery." Id.
at 766.

  While the Supreme Court’s decisions in Rochin,
Schmerber, and Winston help delineate the
contours of an individual’s right to be free from
unreasonable invasive medical procedures, they do
not provide an easy answer in the instant case.
The search at issue here was more intrusive on
the defendant’s personal autonomy than the one
approved in Schmerber. The defendant in this case
was sedated to the point of unconsciousness, a
procedure that is less routine than the simple
blood test at issue in Schmerber. Nevertheless,
once the defendant was sedated, the police had
only to reach into the defendant’s open mouth to
recover the drugs. This is less physically
invasive than the compelled surgery that was held
to violate the Fourth Amendment guaranty against
unreasonable searches in Winston or the stomach
pumping disapproved in Rochin. This case falls
somewhere between the constitutional search in
Schmerber and the unconstitutional searches in
Rochin and Winston, and we must therefore
consider carefully the facts and circumstances
presented here under the Schmerber balancing test
to determine the constitutionality of the
challenged search.

B.

  The first factor we consider is "the extent to
which the procedure may threaten the safety or
health of the individual." Winston, 470 U.S. at
761. Here, the search was conducted by a licensed
physician in a hospital setting and there was
nothing unusual about the procedure used to
sedate the defendant. These are significant facts
because they assure us that "all reasonable
medical precautions were taken and no unusual or
untested procedures were employed . . . ." Id.
The use of general anesthesia is quite common,
see id. at 764 n.7, and there is no evidence in
the record that Amidate, the anesthetic used in
this case, is a particularly dangerous drug.
Furthermore, the defendant was anesthetized only
because he refused to cooperate with the police.
See State v. Lawson, 187 N.J. Super. 25, 29, 453
A.2d 556, 558 (App. Div. 1982) (finding a
proposed surgical procedure "relatively minor"
when, among other things, "general anesthesia
[would] be needed only if defendant is
uncooperative"); see also Winston, 470 U.S. at
765 n.9 (stating that "[s]omewhat different
issues would be raised if the use of a general
anesthetic became necessary because of the
patient’s refusal to cooperate"). However, we do
not want to underestimate the seriousness of any
medical procedure that renders a person
unconscious. See Lee v. Winston, 717 F.2d 888,
900 (4th Cir. 1983), aff’d, Winston, 470 U.S. 753
(stating that even a safe and accepted anesthetic
procedure carries with it an unknown level of
risk). While it does not appear that the
defendant was in any significant danger when
placed under general anesthesia by a licensed
physician in a hospital setting, the record is
unclear as to the potential dangers faced by the
defendant and as to the exact level of risk those
dangers presented.

  Although the threat to the defendant’s health
and safety does not appear to have been
significant, "the extent of intrusion upon the
individual’s dignitary interests in personal
privacy and bodily integrity," Winston, 470 U.S.
at 761, was great. The Fourth Amendment protects
against damage to "the individual’s sense of
personal privacy and security," regardless of
whether the intrusion "injure[s] the physical
person of the individual." Id. at 761-62 (citing
Payton v. New York, 445 U.S. 573 (1980)
(intruding into an individual’s living room);
Katz v. United States, 389 U.S. 347, 361 (1967)
(eavesdropping on an individual’s telephone
conversations); Dunaway v. New York, 442 U.S. 200
(1979) (forcing an individual to accompany police
officers to the police station)). In cases like
the present one, where the search involves a
physical intrusion, these privacy concerns are
accompanied by the individual’s fundamental
interest in maintaining bodily integrity and
control. See Schmerber, 384 U.S. 757
(administering a blood test); Cupp v. Murphy, 412
U.S. 291, 295 (1973) (taking a suspect’s
fingernail scrapings).

  Because any medical procedure implicates an
individual’s liberty interests in personal
privacy and bodily integrity, the Supreme Court
has indicated that there is "a general liberty
interest in refusing medical treatment." Cruzan
v. Director, Mo. Dep’t of Health, 497 U.S. 261,
278 (1990) (citing Vitek v. Jones, 445 U.S. 480,
494 (1980); Parham v. J.R., 442 U.S. 584, 600
(1979)); see also Cruzan, 497 U.S. at 309
(Brennan, J., dissenting) ("The right to be free
from unwanted medical attention is the right to
evaluate the potential benefit of treatment and
its possible consequences according to one’s own
values and to make a personal decision whether to
subject oneself to the intrusion."). In this
case, the defendant was not allowed to refuse
medical treatment or to determine the course of
his own care. Rather, the defendant was subjected
to a compelled procedure during which a general
anesthetic was injected into his system to treat
his medical condition and to allow the police to
execute the warrant they possessed to search his
body./3 Under these circumstances, it is beyond
question that the police’s actions in sedating
the defendant and removing the drugs from his
mouth constitute a serious invasion of the
defendant’s personal privacy and liberty
interests. See Winston, 470 U.S. at 765;
Washington v. Harper, 494 U.S. 210, 229 (1990)
("The forcible injection of medication into a
nonconsenting person’s body represents a
substantial interference with that person’s
liberty.").

  In order to determine the reasonableness of the
police officers’ actions in the present case, we
must weigh these individual interests against
"the community’s interest in fairly and
accurately determining guilt or innocence."
Winston, 470 U.S. at 762. Like the defendant’s
interest in being free from unwanted medical
care, the community’s interest in accurate
adjudication is an important one. See id. In
addition, the community has a strong interest "in
being free from the menace of crime . . . ."
United States v. Serna-Bareto, 842 F.2d 965, 966
(7th Cir. 1988). Both of these interests were at
stake in this case. If the police had not been
able to recover the drugs from the defendant’s
mouth, it is highly unlikely that they would have
been able to prosecute him for drug trafficking
or possession. The defendant would then have been
free to resume his criminal activities. Under
these circumstances, the government’s interest in
recovering the evidence is strong.

  Our conclusion as to the strength of the
government interest is bolstered by our
understanding of Schmerber, where the Court
recognized the significance of the fact that
blood tests are "a highly effective means of
determining the degree to which a person is under
the influence of alcohol," Schmerber, 384 U.S. at
771, and the importance of the fact that a blood
test carries with it a high probability that
evidence of guilt will be found, id. at 770. In
this case, the police had a clear indication that
the defendant carried drugs behind his clenched
teeth,/4 and they were assured of certain
recovery if they were able to reach inside his
mouth. Moreover, the actual recovery of drugs
from a suspect is the most effective means of
determining guilt and provides essential evidence
in a drug trial. Unlike Winston, where the
recovery of the bullet was not a necessary aspect
of the government’s case, Winston, 470 U.S. at
765-66, the recovery of the drugs from the
defendant’s mouth almost certainly made the
difference between the plea bargain the
government obtained in this case and no case at
all.

  Even recognizing the government’s need for the
evidence, the central question remains whether
the means by which the police went about
obtaining that evidence was reasonable under the
Fourth Amendment. We recognize that under certain
circumstances it would be permissible to force a
suspect to undergo a compelled medical procedure
in order to enable the police to recover evidence
of a crime. See United States v. Crowder, 543
F.2d 312, 316-17 (D.C. Cir. 1976) (en banc)
(holding the surgical removal of a bullet
"reasonable and proper" under the circumstances
of the case), cert. denied, 429 U.S. 1062 (1977).
However, we also recognize that the ability of
police to subject suspects to unwanted medical
procedures in the context of a search for
evidence is limited by an individual’s rights
under the Fourth Amendment. See Winston, 470 U.S.
at 767 (holding proposed surgery to recover
bullet unreasonable); Rochin, 342 U.S. 165
(finding stomach pumping unconstitutional);
United States v. Nelson, 36 F.3d 758 (8th Cir.
1994) (holding that compelled endoscopy was
unreasonable); see also Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 849
(1992) ("It is settled now . . . that the
Constitution places limits on a State’s right to
interfere with a person’s most basic decisions
about . . . bodily integrity."). The question
before us is whether, in light of the individual
and community interests we have just articulated,
the police have overstepped Fourth Amendment
limits on the facts of this case.

C.

  The defendant contends that a suspect may never
be rendered unconscious by use of general
anesthesia in order to obtain evidence, but we do
not believe such a per se rule is mandated by the
reasonableness requirement of the Fourth
Amendment. See United States v. Jones, No. 99-
2359, 2000 WL 336887, at *6 (7th Cir. March 31,
2000) (refusing to adopt a bright-line rule for
the amount of time officers must wait before a
forcible entry). Rather, the proper inquiry is
whether anything about the facts and
circumstances of this case made the search
unreasonable. Cooper, 386 U.S. at 59. In this
regard, it is significant that the warrant
obtained by the police only authorized a search
of the defendant’s body. There is no dispute in
this case that the warrant included the authority
to conduct a body cavity search, but the
defendant claims that the method of conducting
the search--rendering the defendant unconscious--
was unreasonable in light of the circumstances.
That is, the defendant argues that the police
should not have rendered him unconscious for the
purposes of executing the warrant for a search of
his body absent prior judicial approval of the
use of a general anesthesia.

  The benefits of obtaining authorization to
perform a compelled medical procedure are
obvious: presentation to a neutral decisionmaker
both ensures that the individual’s Fourth
Amendment rights are protected, see United States
v. Chadwick, 433 U.S. 1, 9 (1977); Johnson v.
United States, 333 U.S. 10, 13-14 (1948), and
safeguards the health and safety of the suspect,
Crowder, 543 F.2d at 316. A compelled medical
procedure, coupled with an invasive search of a
person’s body cavity, is a significant intrusion
upon an individual’s dignitary and privacy
interests and, whenever possible, should be
preceded by a neutral evaluation of the manner in
which the search is to be executed. See Winston,
470 U.S. at 763 n.6 (noting the importance of
affording an individual appropriate procedural
protections including, on the facts of that case,
"the benefit of a full adversary presentation and
appellate review"); Schmerber, 384 U.S. at 770
("The importance of informed, detached and
deliberate determinations of the issue whether or
not to invade another’s body in search of
evidence of guilt is indisputable and great.");
Crowder, 543 F.2d at 316 (discussing the
significance of a presentation of the evidence to
"a neutral and detached magistrate"). However,
despite our preference for more procedural
safeguards in these circumstances, we also
understand that while a warrant must be supported
by probable cause and specify the place to be
searched and the things to be seized, it
generally need not include details as to the
manner of execution. See Dalia v. United States,
441 U.S. 238, 257-58 (1979) ("Nothing in the
language of the Constitution or in this Court’s
decisions interpreting that language suggests
that . . . search warrants . . . must include a
specification of the precise manner in which they
are to be executed."). Rather, within the limits
of reasonableness, the decision on how to execute
a warrant is generally left to the discretion of
the police. See id. ("[I]t is generally left to
the discretion of the executing officers to
determine the details of how best to proceed with
the performance of a search authorized by
warrant."). We thus return to the Schmerber test
and ask whether "the officers executing the
warrant employ[ed] a methodology that is, in
light of the values protected by the Fourth
Amendment and the exigencies of the situation, a
reasonable one." United States v. Jones, 54 F.3d
1285, 1292 (7th Cir. 1995).

D.

  When it is possible to obtain a warrant
specifically authorizing a compelled medical
procedure, the State’s failure to obtain such a
warrant can be an important factor in considering
the State’s interest in the procedure and in
determining the reasonableness of the search.
However, as just stated, the failure of the
police to obtain judicial authorization of the
medical procedure involved does not, in itself,
render the search of the defendant unreasonable.
In this case the police were faced with two
circumstances that the district court appeared to
regard as sufficient to justify the challenged
search. First, the police were permitted to
consider the possibility that valuable evidence
could be lost if the defendant chose to swallow
the drugs. See Schmerber, 384 U.S. at 770
(refusing to apply the exclusionary rule because
of a concern about the potential destruction of
evidence). Second, at the time the general
anesthetic was administered to the defendant,
there were concerns about the defendant’s health
and safety in the event he ingested the drugs.
See United States v. Nelson, 36 F.3d 758, 761
(8th Cir. 1994) (upholding a warrantless search
in circumstances "where the delay necessary to
obtain a warrant . . . threatens the defendant’s
life."); United States v. Owens, 475 F.2d 759,
760 (5th Cir. 1973) (finding a search justified
where "the officers acted in good faith to
prevent further harm to [the defendant]"). While
we agree that the potential loss of evidence and
a good-faith concern about the defendant’s health
could justify this search under narrow
circumstances, we do not believe that the record
below is sufficiently developed for us to make a
determination at the present time as to the
exigencies existing at the time of the search.

  Our review of the record leaves us with
significant questions as to the facts and
circumstances surrounding the search in question.
First, while there is no evidence in the record
that the drug administered to the defendant was
in any way dangerous, there is also no assurance
that the drug was completely safe, nor any
indication of the precise magnitude of the risk
faced by the defendant. Second, the record below
does not clearly indicate how imminent the police
regarded the potential loss of evidence to be./5
Lastly, the record is ambiguous as to the extent
of the medical emergency faced by the defendant
at the time he was administered the anesthetic.
Although there is evidence that the doctor
involved was concerned about the defendant’s
health, and there exists a doctor’s statement
that the anesthetic was administered both to
facilitate the search and to treat the patient,
there is no evidence that the medical emergency
had reached the point where serious harm to the
defendant was an immediate possibility.
  Our concern over the paucity of the record in
this case, particularly the lack of any testimony
from either the police officers or the doctor
involved, is heightened by the significant time
lapse that occurred between the time the
defendant put the drugs in his mouth and the time
he was administered the general anesthetic.
Specifically, it is not clear from the record
why, if the police feared the potential loss of
evidence or were concerned about the defendant’s
health, they did not act to remove the drugs from
the defendant’s mouth immediately upon realizing
that he had secreted them there. We do not mean
to imply that this time lapse indicates that the
police acted unreasonably when they administered
a general anesthetic to the defendant without a
warrant specifically authorizing that procedure.
However, before we can evaluate the
reasonableness of the search, we need a more
developed factual record as to why the police
chose to act when they did and as to why the
circumstances of the case did not permit the
police to provide the defendant greater
procedural protections, including application for
a warrant from a neutral judicial officer
specifically authorizing them to administer a
general anesthetic to the defendant.

III. Conclusion

  Because the factual record in this case is
insufficient for us to determine the
reasonableness of the challenged search,/6 we
REVERSE the decision of the district court and
REMAND the case for further proceedings consistent
with this opinion.


/1 Both parties agree that the decision to
administer the I.V. was made by medical personnel
in the ambulance, not by the police. That
decision is therefore not at issue in this case.

/2 Although we cite Rochin as an example of
unconstitutional police conduct, we recognize
that the Court has shifted from a "shocks the
conscience" standard under the Due Process Clause
to one of objective reasonableness under the
Fourth Amendment. See Lester v. City of Chicago,
830 F.2d 706, 711 (7th Cir. 1987). If Rochin were
considered today, it "would be treated under the
Fourth Amendment, albeit with the same result."
Sacramento v. Lewis, 523 U.S. 833, 850 n.9
(1998).
/3 While this case clearly implicates the
defendant’s general right to be free from
unwanted medical treatment, we find it
significant that the defendant does not allege
that the compelled medical procedure in question
violated any sincerely-held religious belief. If
such an allegation had been made, the
individual’s rights under the Free Exercise
Clause would have to be considered as an
important factor in the application of the
Schmerber balancing test.

/4 Significantly, the defendant does not dispute
that the police had probable cause for the search
in question. See Schmerber, 384 U.S. at 769-70
(noting that when a case involves intrusions
below the surface of the body it is necessary
that police have a "clear indication" that
evidence will be found).

/5 The issue as to the potential loss of evidence is
further complicated in this case by the existence
of an inevitable discovery issue. The inevitable
discovery doctrine provides an exception to the
exclusionary rule "when . . . the evidence in
question would inevitably have been discovered
without reference to the police error or
misconduct . . . ." Nix v. Williams, 467 U.S.
431, 448 (1984). The confusion over the
likelihood of the loss of evidence in this case
appears to stem at least partially from the fact
that the parties’ arguments as to reasonableness
and as to inevitable discovery are seemingly
contradictory.

  To the extent the drugs were likely to be
recovered intact whether or not the defendant
opened his mouth or swallowed the drugs, the
exigent circumstances would be lessened and the
reasonableness of the search undermined. However,
in such a case, the evidence might well come in,
as the district court determined, under the
doctrine of inevitable discovery. In the
reasonableness context the government thus has
the incentive to argue that the drugs were likely
to be lost if swallowed, while in the inevitable
discovery context the government has the
incentive to argue that the drugs would have been
recovered regardless of whether the defendant
swallowed the packets.

  On the other hand, to the extent the drugs
would not have been recovered had the defendant
swallowed them, the government’s inevitable
discovery argument is weakened but its
reasonableness argument is bolstered by the
potential loss of valuable evidence. This gives
the defendant the incentive to argue that the
drugs would have been recovered if swallowed when
contesting the reasonableness of the search, but
to argue to the contrary in the inevitable
discovery context.

  We do not address the district court’s holding
on the inevitable discovery doctrine for the same
reason we do not decide the reasonableness issue:
the record is insufficient for us to assess the
risk that the police would have lost the evidence
in question if the drugs were swallowed. If this
issue comes before us again in the context of
this case, we hope that not only will the record
be more fully developed, but that the parties
will give careful thought to reconciling their
arguments on the reasonableness and inevitable
discovery issues.

/6 The dissent contends that any question as to the
reasonableness of the search in this case is
rendered irrelevant by the "good faith" exception
to the exclusionary rule recognized in United
States v. Leon, 468 U.S. 897 (1984). Although we
decline to conclusively address this question
prior to a determination of the reasonableness of
the search on remand, we doubt that the good
faith exception to the exclusionary rule is
applicable on the facts of this case. Leon dealt
only with circumstances where the police properly
and in good faith execute a warrant that,
although valid on its face, later turns out to be
deficient. See Leon, 468 U.S. at 926 (stating
that the issue before the Court was "the
propriety of [the exclusionary rule’s]
application in cases where the officers have
relied on a subsequently invalidated search
warrant"). We are not convinced that its
reasoning should be extended to situations where
the challenge is to the manner of execution of a
valid warrant. See LaFave sec. 1.3(f) ("Fourth
Amendment violations related to the execution of
a warrant are unaffected by Leon . . . .")
(citing United States v. Medlin, 798 F.2d 407
(10th Cir. 1986)).




  Easterbrook, Circuit Judge, dissenting. If we had
to decide in the abstract whether using
anesthesia to recover drugs from a suspect’s
mouth is wise, all things considered, then this
might be a difficult case and justify a remand.
My colleagues offer a thoughtful discussion of
the costs and benefits. But this is not an action
seeking damages for an unreasonable search, nor
is it an anticipatory objection to a proposed
search, as in Winston v. Lee, 470 U.S. 753
(1985), where a court may assess reasonableness
in advance. It is a criminal prosecution, and the
search had the support of a warrant. Unless that
warrant was transparently defective, the evidence
is admissible; constitutional errors in the terms
of (or basis for) a search warrant do not support
use of the exclusionary rule. United States v.
Leon, 468 U.S. 897 (1984). This record reveals
more than enough to show that the district judge
did not err in denying Husband’s motion to
suppress.

  The facts are simple, all the vital details
undisputed. As police approached a reported drug-
distribution point, Husband put in his mouth
something large enough to produce a knot in his
cheek. After Husband refused to open his mouth,
the police sought a search warrant. While they
waited for the judge’s decision, Husband began to
twitch and sweat. Police feared that he was
experiencing a seizure from a drug overdose and
took him in an ambulance to St. John’s Hospital.
At about 11 P.M. a state judge issued a warrant
authorizing a search of "[t]he body of Eunice
Husband" for drugs. Alan Gravett, an emergency-
room physician at the hospital, told Husband
about the warrant and asked him to open his
mouth. Husband refused. Medical personnel then
tried to pry Husband’s mouth open, but when he
resisted they stopped. Gravett again asked
Husband to open his mouth and told him that the
alternative was the administration of a muscle
relaxant that would cause unconsciousness.
Husband still kept his jaw clenched, so at 11:22
P.M. Gravett delivered 40 milligrams of Amidate in
an intravenous solution. Husband was unconscious
for about 15 minutes, under medical care the
entire time. Nurses removed from his mouth three
plastic bags, which held about 20 grams of crack
cocaine. Gravett explained in a written statement
to the district judge that this procedure was
justified not only by the warrant but also by
concerns about Husband’s life: "possible life
threatening overdose (as manifested by seizure
activity) and potential airway obstruction made
removal of material in mouth Medically Mandatory
to prevent possible harm to patient."
(Underlining and capitalization in handwritten
original.)

  Husband stipulated that Gravett, if called at
the suppression hearing, would testify along the
lines of his statement. Counsel representing
Husband did not produce any medical evidence
suggesting that Amidate was an inappropriate drug
(or 40 milligrams an inappropriate amount) for
this procedure, nor did Husband deny that the
procedure appeared to the supervising physician
to be "medically mandatory" under the
circumstances. Instead of arguing that the manner
of executing this warrant was unreasonable,
Husband advanced two legal propositions: first,
that a general anesthetic never may be used to
execute a warrant; second, that if anesthesia
ever is permissible, it must be authorized
explicitly by the warrant. The district judge
rejected both of these propositions and denied
the motion to suppress. Husband then entered a
conditional guilty plea to the crime of
possessing cocaine with intent to distribute, in
violation of 21 U.S.C. sec.841(a)(1), reserving
his right to appeal from the denial of his motion
to suppress the drugs recovered from his mouth.
Fed. R. Crim. P. 11(a)(2).

  My colleagues do not accept either of Husband’s
arguments. A per se rule against anesthesia (or
any other means of executing a search warrant)
finds no support in the text of the fourth
amendment or the Supreme Court’s jurisprudence.
Cases such as Winston show that some medical
procedures are unreasonable in some circumstances
(in Winston the search would have entailed
surgery to extract a bullet, which the Court
deemed unwarranted because the bullet was lodged
deep inside the body and its recovery was
unimportant to the criminal prosecution), but no
decision condemns an entire class of procedures
under all circumstances. Opening his mouth posed
zero risk to Husband, and the risk created by his
obduracy also was slight. No evidence in the
record suggests that Amidate creates any dangers
(even the danger of an allergic reaction). As for
the second point: Dalia v. United States, 441
U.S. 238, 254-59 (1979), holds that a warrant
need not specify the means of execution. See also
Richards v. Wisconsin, 520 U.S. 385, 396 n.7
(1997). The fourth amendment tells us what must
be in a warrant: "no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized." Nothing here requires
specification of means to be used in execution.
See generally Wayne R. LaFave, 2 Search and
Seizure sec.4.8(g), sec.4.10 (3d ed. 1996). The
warrant to search "[t]he body of Eunice Husband"
met all constitutional requirements, and it would
be folly to require judges, as opposed to
physicians, to determine how to search inside a
person’s body.

  My colleagues take a very different course, one
of their own devising. They say that perhaps Dr.
Gravett and the police should have waited Husband
out. Eventually he would have opened his mouth,
if only to eat, or would have swallowed the
plastic bags, which could have been recovered
from his stools some days later. They direct the
district court to conduct additional proceedings
to investigate these possibilities, which could
have avoided the administration of any drugs and
therefore better served Husband’s interest in
bodily integrity.

  Patience may be a virtue, but the question my
colleagues pose for the district court is not one
in which Husband had any interest. He could have
offered medical evidence at the suppression
hearing but chose not to do so. We should respect
the parties’ decisions rather than prolong
litigation because the record does not answer
questions that we would have posed had we been in
counsel’s shoes. And I do not suspect Husband’s
lawyers of incompetence. Neither the police nor
Dr. Gravett could tell what was in Husband’s
mouth or how well it was wrapped; for all they
knew he had a lethal quantity of drugs in leaky
packaging. Gravett thought that immediate
intervention was "Medically Mandatory to prevent
possible harm to patient." Nothing in my
colleagues’ opinion calls this assessment into
question or implies that the procedures used to
administer the drug (and to attend Husband until
his recovery) were medically deficient, or that
the use of brute force would have been superior
to the use of muscle relaxant. If Gravett had not
acted, we might now be considering a suit by
Husband’s heirs under 42 U.S.C. sec.1983,
contending that the state violated his rights by
not forcing his mouth open and saving his life.

  Leon makes a remand pointless. By parallel to
the Constitution’s knock-and-announce requirement
for search of a dwelling, see Wilson v. Arkansas,
514 U.S. 927 (1995), the police were obliged to
inform Husband of the warrant and ask him to open
his mouth, so that forcible entry could be
avoided. They did this. Once Husband refused, the
police were entitled to use force--a battering
ram to open a door, a drug to open a mouth. Even
if it would be better practice for warrants to
specify details of execution, this one did not;
the error, if any, was made by the issuing judge
rather than by the police. Likewise the state
judge erred if, as my colleagues imply, he should
have held a hearing before issuing the warrant.
Slip op. 13 (stating "our preference for more
procedural safeguards in these circumstances").
What safeguards, in particular? My colleagues
mention "a full adversary presentation and
appellate review" (ibid.). An adversarial hearing
at 11 P.M., followed by appellate review, while a
suspect who lacks counsel is having seizures from
an apparent drug overdose and may die if medical
personnel tarry? Under these circumstances a
warrant probably was unnecessary, see Schmerber
v. California, 384 U.S. 757, 770-71 (1966); it is
hardly the occasion to make warrants harder to
obtain. Search warrants are issued ex parte even
though they may authorize police to invade
private places, papers, and conversations. Surely
Leon does not permit a court to suppress evidence
just because appellate judges prefer to replace
ex parte search warrants with leisurely
proceedings. The police did the right thing by
taking the matter up with a court in advance.
Leon holds that errors by a judicial officer do
not justify suppression.
  One assumption underlying the discussion so far
requires defense. I have assumed that a warrant
to search "[t]he body of Eunice Husband"
authorizes a search inside his mouth, rather than
just of his clothing and skin. Doubtless the
state judge could have chosen better language,
but the point of the warrant was clear. The judge
knew exactly what the police wanted to do: get
the contents of Husband’s mouth. The affidavit,
which was sworn before the judge and apparently
attached to the warrant, describes the situation
in detail, adding to what I have already
mentioned that three officers "felt Husbands
[sic] cheek and it felt like a hard rock like
object between his teeth and cheek." Police would
not have asked for a warrant to search Husband’s
person and effects; they could do that without
judicial approval, indeed without suspicion. See
United States v. Robinson, 414 U.S. 218 (1973);
United States v. Edwards, 415 U.S. 800 (1974).
The only reason to issue a warrant was to
authorize intrusion into the body, so the warrant
must be understood in that light. Whether or not
the judge should have given that authorization,
Leon shows that the results of executing the
warrant were admissible in evidence--unless
perhaps the warrant was executed by unreasonable
means. But as I have already noted Husband does
not challenge the means of execution, except to
say that evidence never may be secured using
medical procedures that entail unconsciousness,
and that position is untenable.

  Husband brought the muscle relaxant on himself
by refusing to open his mouth. Note the gulf
between this situation and that of Winston,
Schmerber, and Rochin v. California, 342 U.S. 165
(1952), where invasive procedures were
unavoidable, and courts had to decide whether
obtaining the evidence at all could be justified.
Here, by contrast, the warrant could have been
executed without force and without risk had
Husband cooperated--as he was legally obligated
to do. My colleagues’ statement, slip op. 10,
that Husband "was not allowed to refuse medical
treatment, or to determine the course of his own
care", is false on multiple levels: the
administration of Amidate was not designed as
"treatment" or "care" for some illness, and
Husband was given the opportunity to rule his own
fate--by opening his mouth. Police rightly may be
required to ask suspects to open both mouths and
doors before using force; and it would be
unreasonable to use a medical means of conducting
a search without medical supervision, but here
the request was made and medical details were
left to Dr. Gravett and his staff. This is a
paradigm of conscientious police work.

  The majority does not describe any means of
executing this warrant more appropriate than the
one Dr. Gravett selected. What holds their
interest is the possibility that the police might
have secured the evidence without relying on the
warrant. In other words, the remand is designed
to explore the question whether it was reasonable
to execute the warrant. As far as I know, this is
a novelty. Treating execution of a valid warrant
as itself unreasonable would eviscerate Leon and
authorize suppression of evidence if the court
concludes in retrospect that the evidence could
have been obtained in some less intrusive way. It
is like saying that if the police arrive at a
drug dealer’s house, knock and announce their
purpose, and are told that they will not be
admitted, they should sit down and cogitate
whether they could obtain the evidence by waiting
for the inhabitants to emerge in a day or two to
buy food. Yet if peaceable entry is refused, then
police armed with a warrant may break down the
door and conduct the search, without being
exposed to a later inquiry whether the suspect
might have been nabbed on the street rather than
at home. That’s exactly the position the police
occupied with regard to Husband, though the place
to be searched was a mouth rather than a living
room or bedroom or telephone conversation or file
cabinet, and they behaved in exactly the proper
way.

  A warrant authorizes (and when read literally
commands) the police to perform a search. True
enough, probable cause does not justify risky
intrusions for minuscule gain; Winston holds as
much. But if the judge asked to issue the warrant
authorizes the police to use force to overcome
resistance (and this is what every warrant
authorizes), and the police are met with
resistance, then force may be used. Evidence thus
seized may be suppressed only when every
reasonable officer would have known of the
warrant’s invalidity. Cf. Ornelas v. United
States, 517 U.S. 690, 698-99 (1996); Illinois v.
Gates, 462 U.S. 213, 236 (1983); Spinelli v.
United States, 393 U.S. 410, 419 (1969) (all
requiring "great deference" to the decision of a
judicial officer who issues a warrant). My
colleagues do not believe that every reasonable
officer should have known that the warrant to
search "[t]he body of Eunice Husband" (that is to
say, the inside of his mouth) was
constitutionally infirm. Indeed, the very fact
that the majority has difficulty assessing
reasonableness even after a suppression hearing--
and that a federal magistrate judge, a federal
district judge, and the third member of this
panel believe that there was no infirmity--show
that an officer on the scene would not have known
that the warrant was invalid. Leon holds that a
court may not exclude evidence just because,
taking a refined view years after the search,
appellate judges believe that the warrant was
infirm. Suppressing evidence because a judge
disagrees with a physician’s solution to a
medical problem could not help to deter
constitutional misconduct by the police, the
exclusionary rule’s only proper function. See,
e.g., Pennsylvania Board of Probation v. Scott,
524 U.S. 357, 362-65 (1998); Nix v. Williams, 467
U.S. 431, 442-43 (1984).

  Let us put Leon aside, however, and explore the
roads not taken. What else might have happened?
One possibility is that the cocaine would have
dissolved in Husband’s body, destroying the
evidence. A second possibility is that Husband
eventually would have relented and opened his
mouth. A third is that the plastic bags
containing the crack would have passed through
Husband’s digestive system without rupturing or
leaking, so that the drugs could have been
recovered by searching Husband’s excrement. A
fourth is that some medical procedure not
involving unconsciousness (perhaps a sedative or
a local anesthetic that would have deprived
Husband of control over his jaw muscles) could
have been employed. Possibilities two, three, and
four all lead to recovery of the cocaine. The
inevitable-discovery doctrine tells us not to use
the exclusionary rule when full compliance with
the Constitution was bound to yield the same
evidence. Murray v. United States, 487 U.S. 533,
536-41 (1988); United States v. Jones, 214 F.3d
836 (7th Cir. 2000).

  That leaves possibility one: that delay would
have enabled Husband to succeed in his quest to
keep the drugs from the police. My colleagues
observe that it is an open question whether the
drugs would have been lost (indeed, whether
Husband would have died as a result) had the
police waited. Slip op. 15 n.5. True enough--but
the answer is not legally relevant. That suspects
could have destroyed their drugs, if only they
had more time, does not justify suppression. The
exclusionary rule is not designed to reward the
destruction of evidence. See Segura v. United
States, 468 U.S. 796, 813-16 (1984). When
deciding whether discovery was "inevitable,"
Segura holds, courts must assume that suspects
behave lawfully. Spoliation of evidence (the
first possibility) is not lawful, and all lawful
alternatives lead to recovery of the drugs, so
Husband’s motion to suppress was properly denied
even if the warrant was executed in an
unreasonable manner or should not have been
executed at all. Arguments can be made pro and
con about the wisdom of Dr. Gravett’s decision,
but application of the exclusionary rule is out
of the question.
