Minnesota Supreme Court says forced body cavity search is unconstitutional

The Minnesota Supreme Court overturned a drug possession conviction for a Minneapolis man Wednesday after concluding that a forced body cavity search violated his constitutional rights to dignity, personal privacy and bodily integrity.

The search of Guntallwon Brown's rectum while he was strapped down and sedated is a violation of the Fourth Amendment, the court ruled in a 21-page opinion written by Justice Paul Thissen and signed by four colleagues. Justice Anne McKeig dissented, saying the search was reasonable.

A Hennepin County District Court jury convicted Brown in early 2017 of fifth-degree drug possession. He was sentenced to 90 days of home confinement and ordered to take a drug test. Before trial, his lawyer unsuccessfully sought to suppress the 2.9 grams of cocaine found in a plastic bag in Brown's body. Brown appealed that decision.

The Court of Appeals concluded that the search was reasonable, but the state Supreme Court disagreed and ruled the evidence of the illegal search to be inadmissible at trial. The high court ordered that Brown be given a new trial.

Hennepin County Attorney Mike Freeman issued a statement saying he has 90 days to decide whether to ask the U.S. Supreme Court to consider the case. If Freeman decides against trying to take the case higher, the statement said his office will dismiss the case against Brown.

"The police officers did everything right," Freeman said. "They obtained a search warrant and they took the suspect to a medical professional. But it is the Supreme Court's role to set judicial policy."

Michael Friedman, executive director at the Legal Rights Center, which defended Brown at trial, said he interpreted the court's ruling as saying, "We're not going to allow something that meets the legal definition of rape purely to support the war on drugs."

To reach its decision, the state high court's analysis used a U.S. Supreme Court balancing test from a 1985 case that said the "reasonableness of a surgical intrusion beneath the skin" is determined by weighing an individual's interests in privacy and security against society's interests in conducting the procedure.

The court found the state's interest didn't override the need to protect Brown's dignity. Brown has publicly spoken about his belief in the illegality of the search.

"If a coerced invasion of one's [body] cavity — an area inherently personal and private — while sedated and in front of strangers is not a serious and substantial intrusion of an individual's dignitary interest in personal privacy and bodily integrity, we cannot fathom what is," the court wrote.

The facts in the case weren't in dispute, according to the court ruling. In August 2015, Minneapolis police used a confidential informant to buy crack cocaine from Brown. Later that night, police observed Brown making a sale with another buyer and arrested him.

During the arrest, an officer saw Brown "shoving his hands down his pants, possibly concealing something." Officers later saw Brown "grinding" into a chair as if he was shoving something upward between his legs. While conducting a strip search, the officer saw a clear plastic baggie protruding from Brown's rectum and believed it was crack cocaine.

The officer obtained a search warrant to conduct a body cavity search and took Brown to North Memorial Health Hospital in Robbinsdale. Brown refused to remove the plastic bag himself, so officers gave the warrant to Dr. Christopher Palmer, an emergency room doctor, and asked him to force Brown to take a laxative.

After consulting a hospital lawyer, Palmer refused to conduct anything other than an external search of Brown's body because he didn't believe the warrant allowed him to do so. Palmer saw no bag protruding from Brown's body.

Police went back to the same judge and got a second search warrant, which authorized hospital staff to "use any medical/physical means necessary to have Brown" remove narcotics from his body.

Police took Brown to Hennepin County Medical Center, where he was asked to remove the drugs himself and refused. Emergency room physician Dr. Paul Nystrom, after consulting with a county prosecutor, gave Brown four options: remove the bag himself, be given an enema, undergo a procedure under sedation, or be given a laxative through a nasal tube while under sedation and on a ventilator.

Brown refused to speak. So he was strapped down and placed on an intravenous sedative. Nystrom inserted a speculum into Brown's body cavity and retrieved the plastic bag with a forceps. Two police officers were in the room during the procedure and later determined the bag contained crack.

In deciding for Brown, the Supreme Court emphasized that Brown was alert and capable of consent but instead was strapped to a table and sedated while doctors conducted the procedure.

Further diminishing the state's need to force the procedure was the existence of a more practical, noninvasive option: retrieving the bag through natural elimination, the court said.

Assistant state public defender Jennifer Workman agreed. She said the ruling shows police have to respect personal privacy and not go "straight to the most intrusive option" when it's known that something tucked inside that part of the body would eventually come out naturally. "It was going to happen one way or another," she said.

Joining Thissen in the majority were Chief Justice Lorie Gildea and Justices G. Barry Anderson, Margaret Chutich and David Lillehaug.

In her 11-page dissent, McKeig called the search legal, saying that Brown was provided less invasive alternatives when he was taken to the hospital.

Justice Natalie Hudson didn't participate in the decision.

The Minneapolis Police Department declined to comment.

Rochelle Olson • 612-673-1747 Twitter: @rochelleolson