Rondrick Lamar Gray recently learned an important lesson. Be careful where you hide the dope. On February 12, 2012, a panel of the United States Court of Appeals for the Fifth Circuit affirmed Gray’s conviction for possession of crack cocaine with the intent to distribute. United States v. Gray, ___ F.3d ___, 2012 WL 315989 (5th Cir. 2012) [Panel: Circuit Judges Benavides, Prado, and Graves. Opinion by Judge Prado.]
After law enforcement officers had conducted a trophy-retiring search of Gray’s body and found what they were looking for, Gray was indicted for possession of crack cocaine with the intent to distribute. His lawyer filed a motion to suppress the crack cocaine recovered during the search. United States District Judge Sam Cummings of the Northern District of Texas denied the motion to suppress, and Gray was convicted after a jury trial. Judge Cummings sentenced Gray to ten years’ imprisonment and eight years of supervised release. Gray timely appealed.
Judge Prado’s opinion begins with these words:
“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). This case forces us to balance this fundamental interest in a person’s bodily integrity and dignity against the significant need of law enforcement officers to unearth evidence of crime. Specifically, the Appellant Rondrick Gray was forced to undergo a proctoscopic examination under sedation pursuant to a warrant obtained on the police’s belief that he was concealing crack cocaine in his rectum. Weighing the competing interests, we find that the search was unreasonable but that the evidence should not be suppressed because the police acted in good-faith reliance on a valid search warrant. Accordingly, we AFFIRM.
It is not a surprise that Gray’s conviction was affirmed. The good faith exception to the exclusionary rule has been discussed by the various Courts of Appeal in 97 cases during the past 13 months. In the majority of these cases, the Courts relied on the good faith exception to save a search and affirm the defendant’s conviction.
It is the facts in Gray that make the case remarkable. For this reason, I have set them out in their entirety. Judge Prado recitation of these facts is as follows:
On April 23, 2010, a confidential informant told San Angelo Police Department (“SAPD”) Detective Hank Hethcock that Rondrick Gray was in possession of and selling crack cocaine. Based on the information about Gray’s vehicle, SAPD Officers Garza and Elrod stopped Gray’s vehicle and arrested him on outstanding warrants. At the time of the stop (around 3 p.m.), Gray was driving with a passenger, Selah Simmons, who was taken into custody as well. Simmons told SAPD Sergeant Dornhecker that as the police were approaching Gray’s vehicle during the traffic stop, Gray threw a plastic bag containing what she believed to be crack cocaine at her and asked her to conceal it, which Simmons refused to do. SAPD officers conducted a search of Gray’s vehicle for the drugs but found nothing. Garza conducted a search of Gray, which also did not turn up any drugs. A K-9 unit arrived, and a drug dog alerted on the center console area of Gray’s vehicle, but no drugs were found.
Gray was taken to the jail, where upon his arrival a strip search was conducted. Garza, who witnessed the strip search of Gray, described Gray as “not fully cooperative.” Gray was placed into the general population of the jail, during which time he was not observed. While Gray was being searched and booked at the jail, SAPD officers did an extensive, two-hour search of Gray’s vehicle, which also turned up nothing [emphasis added].
Gray was eventually taken out of the general population and strip-searched a second time with Garza and Elrod watching. As a part of his strip search, he was instructed to squat, pull his buttocks apart, and cough, in order to dislodge anything that may be concealed in the anus. Gray was described as “being evasive,” because he would only “slightly bend at the knees and give a faint cough.” In addition to the two strip searches, SAPD did a second search of the scene where they stopped Gray, and jail personnel conducted strip searches of all inmates who were in Gray’s holding cell with him. None of these searches turned up any drugs or other contraband [emphasis added].
At this point, Hethcock presented Gray with some options of how to proceed: Gray could undergo a third strip search, he could be placed in a cell with a waterless toilet, or he could consent to a rectal x-ray examination. Gray did not consent to any of these options. Based on all of these events and his education, training, and experience, Hethcock believed that the “only place” Gray could be concealing the crack cocaine that the police suspected him of possessing was in his rectum. Hethcock informed Gray that the police would seek a search warrant to try to uncover the drugs. By 10:15 p.m., Gray posted a bond on his traffic warrants and was released. SAPD, however, detained Gray for thirty minutes while waiting to secure the search warrant. At about 10:45 p.m., over seven hours after Gray’s initial arrest, a state judge signed the search warrant, and Gray was taken to the hospital for the search.
At the hospital, the first procedure performed was an x-ray using a portable x-ray machine. Gray was, according to Hethcock, uncooperative with the x-ray technician and as a result, the technician was unable to “get a good picture with the portable x-ray.” The next procedure attempted was another x-ray but this time using a stationary machine. At first, Gray was asked to do a standing x-ray, but Gray “refused to stay where he was told.” The medical staff then tried to x-ray Gray while he was lying down, but Gray would not lie still. Eventually, the x-ray technician obtained a useable picture. From his review, he noticed something that he thought could either be a gas pocket or a foreign object but could not decide which. Hethcock took the x-ray to Dr. Roland Heidenhofer, a staff physician at the hospital, who also could not discern whether the anomaly was a gas pocket or a foreign object. Heidenhofer then went to Gray’s room and informed Gray that he was going to perform a digital rectal examination on him. Though Hethcock described Gray as “evasive and uncooperative” during the digital exam, Heidenhofer was able to perform the digital exam to some extent. From that examination, however, he was unable to determine if there was an object in Gray’s rectum [emphasis added].
After failing to determine anything from either the x-rays or the digital exam, Heidenhofer consulted with Dr. Emmette Flynn, the hospital’s Trauma Medical Director. Flynn believed that the best next step was to perform a proctoscopic examination of Gray’s rectum. In such an examination, the proctoscope, essentially an illuminated tube, is inserted across the anal canal and into the rectum. The rectum is then filled with air, or insufflated, so that the interior can be examined. When the rectum is insufflated, the walls are distended, which permits a more thorough evaluation of the wall of the rectum and objects within the rectal vault. Flynn stated that he did not ask for Gray’s consent for the proctoscopic exam and that at the time he made the decision, he had not reviewed the search warrant or Gray’s medical history. For Gray’s proctoscopic exam, two sedatives (Versed and Etomidate) were administered to Gray intravenously. Though the doctors later testified at the suppression hearing that the risks associated with the sedatives were low, Gray was placed on a number of monitors to measure Gray’s cardiovascular status during the examination. The sedatives carry with them a risk of respiratory depression or arrest. Proctoscopy also has associated risks, including pain and potential anal bleeding or perforation. Flynn admitted that proctoscopic exams are usually not conducted on uncooperative patients. At the time that the doctors decided to perform the proctoscopic exam, there were other less intrusive means available to try to recover the suspected drugs, including a cathartic or an enema-neither of which would have involved sedation [emphasis added].
During the proctoscopy, Flynn was unable to completely visualize the rectal vault due to a “substantial amount of fecal debris.” He did, however, intermittently see and feel something different from the other contents of the rectum. Flynn removed the scope and performed a second digital rectal examination, during which Flynn removed a plastic bag from Gray’s rectal cavity. Flynn placed the plastic bag into a biohazard bag provided by the emergency department, and handed the bag to an SAPD officer. Subsequent testing revealed the contents of the bag recovered from Gray’s rectum to be 9.62 grams of cocaine base [emphasis added].
There’s nothing remarkable about Gray except for the egregious nature of the facts. The search of Gray’s body was unreasonable; yet, the good faith exception saved the search and the seizure and the government was able to prosecute and convict him. The short-hand version could be summed up thusly:
- Gray won a Pyrrhic victory.
- Gray lost on the search issue.
- Gray remains in prison.
So what do we hope for in every case where our client has been searched and evidence has been seized? That it be a warrantless search.