FORCED CATHETERIZATION: A METHOD OF SUBSTANCE TESTING THAT 'SHOCKS THE CONSCIENCE' SHOULD BE DISALLOWED IN ITS ENTIRETY.

• Author: Onisciuc, Ellina

Forced urinary catheterization, absent or pursuant to a search warrant, is a disturbing practice that threatens the liberties of the American people. Aside from carrying many health risks, forced catheterization is highly-intrusive, painful, traumatic, and essentially useless, in light of alternative, less-intrusive methods of substance testing. However, not only has forced catheterization become widespread in many states, including the state of South Dakota, but it also has become practically immune to defeat in court. The existence of a search warrant, various exceptions to the warrant requirement, and the defense of qualified immunity either paved the way for forced catheterization to become a norm or helped shield the government against Fourth Amendment claims. There are, however, jurisdictions in this country that took a stance against the practice of forced catheterization and in favor of alternative methods of substance testing. Therefore, South Dakota should reconsider the use of forced catheterization for the purpose of evidence compilation and disallow it in its entirety.

1. INTRODUCTION

   In the era of technological advancement, "the human body has become an increasingly important source of valuable, necessary, and expected evidence," where breath, hair, blood, and urine tests have emerged as the most trusted sources of confirming evidence of alcohol and drug intoxication. (1) While all of the methods of substance testing involve a certain degree of intrusion upon the suspect's privacy, quite often, the police resort to the most intrusive and degrading method of evidence compilation--forced catheterization. According to former South Dakota Attorney General Marty Jackley, in South Dakota, "agents would only pursue forced urine samples in 'exceptional' circumstances, such as a fatal vehicular homicide case in which drugs are suspected to be a factor." (2) However, numerous forced catheterization lawsuits in South Dakota indicate contrary behavior by the police. (3)

   South Dakota made national news when headlines from various newspapers read: Forced Catheterization Spurs Lawsuits in South Dakota and South Dakota Cops Indulged 'Sadistic Desires' Forcing Catheters into Men. (4) One of those men, Dirk Sparks, reported that he was "hooded, handcuffed, and 'violated'" when four police officers, pursuant to a search warrant, stripped him down pantless and pinned him to a hospital table. (5) A nurse then "inserted a pencil-sized tube" into his urethra, and subsequently into his bladder to remove a urine sample for drug testing. (6) Another man, Jason Riis, who was arrested during a traffic stop, was also forcibly catheterized even though he agreed to provide a urine sample. (7) Similarly, Cody Holcombe was forcibly catheterized even though he also agreed to provide a urine sample but simply was not given enough time to urinate. (8) Aaron Henning was forcibly catheterized when police officers found him present in a home where they had previously found marijuana. (9) The search warrant authorized them to collect a "[u]rine sample from everyone present ... [in] the residence," but it, nonetheless, never specifically named Aaron Henning. (10) After the daily newspaper of Sioux Falls, South Dakota, published the article on forced catheterization, multiple individuals later contacted the newspaper to confirm many more such experiences and threats of forced catheterization. (11)

   Men are not the only victims of forced catheterization in South Dakota; women and children have also fallen victim to the procedure that "shocks the conscience." (12) One such individual, Gena Alvarez, was forcibly catheterized while "[m]ale police officers inspected [her] genitals." (13) A three-year-old boy, who was not potty-trained, was forcibly catheterized when his mother's boyfriend, who lived in the same residence, failed a urinalysis. (14) Absent a search warrant, authorities threatened the mother with the removal of her children if she refused to have her and her children tested for drugs. (15) She succumbed to the threat and her youngest son was catheterized. (16) After the procedure was done, the child "complained of pain and discomfort for several days." (17) He developed a staph infection as a result of catheterization. (18) Currently, South Dakota is the only known state to forcibly catheterize a child. (19) Catheterization, especially forced catheterization, caused "humiliation, degradation, unnecessary pain, difficulty urinating, and emotional distress" to individuals who have come forth about it. (20)

   The American Civil Liberties Union ("ACLU") filed two lawsuits on behalf of four men and Gena Alvarez in Riis v. Does, (21) and on behalf of a minor in Hunter v. South Dakota Department of Social Services. (22) The plaintiffs in Riis and Hunter alleged, inter alia, the violation of the Fourth Amendment under 42 U.S.C. [section] 1983. (23) While the Department of Social Services prevailed in Hunter, (24) Riis remains an active lawsuit. (25)

   This comment (26) will explain why it is time to end the widespread practice of forced catheterization of suspects for the purpose of substance testing, absent or pursuant to a search warrant. (27) In Part II, the comment will describe the history of bodily intrusions in the United States and South Dakota. (28) It further will describe the evolution of bodily intrusions into the practice of forced catheterization, and consequently will explain its ineffectiveness by comparing urinalyses to blood draws. (29) This comment will also explore the exceptions to a warrant requirement and the defense of qualified immunity that shields law enforcement from the liability that is associated with Fourth Amendment claims. (30) Part III will provide an analysis of different jurisdictions concerning forced catheterization cases. (31) The comment will explain why forced catheterization should cease to exist as a method of substance testing in its entirety. (32)

2. BACKGROUND

   1. THE HISTORY OF BODILY INTRUSIONS IN THE UNITED STATES

      The Fourth Amendment ensures "the right of the people to be secure in their persons ... against unreasonable searches and seizures." (33) The search and seizure provision of the Fourth Amendment is largely concerned with protecting people's heightened expectation of privacy--a constitutional right that "shall not be violated," not only in theory but also in practice. (34) However, despite the clear language of the Fourth Amendment, the highest court in the land has failed to provide a bright-line rule regarding the scope of the government's authority concerning the collection of bodily evidence through various invasive medical procedures, including urinary catheterization. (35) The Supreme Court thereby has left it largely up to the states to establish guidelines for cases that involve invasions of the human body--like forced catheterization--thereby resulting in the creation of a "nebulous area" in the law. (36)

      The history of evidence collection through bodily intrusions began with the landmark case of Rochin v. California in 1952. (37) In that case, police officers entered Rochin's residence without first obtaining a search warrant, and upon observing him swallow what was later found to be capsules containing morphine, quickly rushed him to the hospital where doctors pumped his stomach. (38) The United States Supreme Court found that the evidence was seized in such a manner that it offended the "canons of decency and fairness" and "shock[ed] the conscience." (39) The Court held that the evidence was inadmissible under the Fourteenth Amendment Due Process Clause. (40) Although, the "shocks the conscience" standard is no longer a per se governing rule in the area of bodily intrusions, nonetheless, it "remains a salient consideration in any bodily seizure scenario" because of its "fact-intensive analytical method" which was never fully replaced in later cases. (41)

      In 1966, fourteen years after Rochin, in Schmerber v. California, (42) the Supreme Court wrote on a "clean slate" and upheld the constitutionality of warrantless nonconsensual blood draws when there existed probable cause or exigent circumstances. (43) In that case, Schmerber was hospitalized after a car accident in which he was suspected to be driving while intoxicated. (44) At the instruction of the police officer, the treating doctor drew blood to determine Schmerber's blood alcohol content ("BAC"). (45) Schmerber moved to suppress the BAC results. (46) The Court addressed the reasonableness of the search and seizure provision, stating that first, due to exigent circumstances--the quick dissipation of alcohol from the bloodstream that threatened the destruction of the evanescent evidence--the police officers could not have obtained a timely search warrant. (47) Second, the Court stated that the blood draw was performed in a reasonable and relatively painless manner, which constituted a common procedure in society involving minimal negative medical consequences. (48) Thus, by upholding the constitutionality of the blood draw, the Court essentially "created a blanket exigency exception" that now allows for a warrantless procurement of blood. (49) Consequently, the Court opened the door for other forms of bodily intrusions to be performed in the same manner. (50) In Schmerber, the Court moved away from the "shocks the conscience" standard to an "objective reasonableness" standard, thereby requiring the states to use a factor-balancing test to establish in which manner, under what circumstances, and by whom the bodily intrusion was performed. (51)

      In 1985, in Winston v. Lee (52)--"the last major bodily intrusion case"--the Supreme Court drew a line at the permissibility and reasonableness of bodily intrusions under the Fourth Amendment. (53) In that case, Lee attempted to rob a shop, but was shot in the chest by the owner. (54) When the owner identified Lee as the robber, the state moved to compel Lee to...