226 F.3d 626 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Eunice Husband, Defendant-Appellant.
No. 99-2881
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 14, 2000Decided August 22, 2000

Appeal from the United States District Court for the Central District of Illinois.  No. 98 CR 30050--Richard H. Mills, Judge.[Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Easterbrook and Ripple,  Circuit Judges.
Flaum, Chief Judge.


1
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

2
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.


3
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.


4
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.


5
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


6
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.


7
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.


8
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


9
(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.


10
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.


11
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

12
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.

13
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.


14
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.


15
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.


16
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.


17
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.

18
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.


19
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).


20
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.").


21
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.


22
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.


23
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.

24
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, 208 F.3d 603, 609-10 (7th Cir. 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.


25
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.

26
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.


27
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.


28
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

29
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.



Notes:


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)).



30
Easterbrook, Circuit Judge, dissenting.


31
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.


32
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.)


33
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).


34
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.


35
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.


36
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.


37
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. 634 (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.


38
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


39
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.


40
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. 632, 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.


41
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.


42
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).


43
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).


44
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.635 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.

