4th Amendment, Flash Drives and Surgery

As you may have seen, earlier this week The Smoking Gun [TSG] posted a story about a suspect who swallowed a flash drive. According to the TSG story,

Florin Necula ingested the Kingston flash drive shortly after his January 21 arrest outside a bank in Queens. . . . . Necula and several codefendants had been transported to a Secret Service office in Brooklyn, where they were to be questioned and processed. While there, and in the view of investigators, Necula `grabbed Subject Flash Drive 2, which had been on his person at the time of his arrest, and swallowed,’ Agent Joseph Borger noted in the . . . February 25 search warrant affidavit.

According to the affidavit in support of search warrants drafted by a U.S. Secret Service agent involved in all this, “[d]octors from the New York Downtown Hospital later removed the flash drive because they were concerned Necula would be injured if they allowed the flash drive to remain inside him.” The TSG story says the doctors acted when Necula “was unable to pass the item after about four days”. It also says he “eventually agreed” to let the doctors remove the flash drive.

As TSG notes, Necula was later charged with attempting to obstruct justice for swallowing the flash drive; the count of the indictment charging him with this offense is available on the TSG’s website. The count charges that Necula “knowingly, intentionally and corruptly” attempted “to alter, destroy, mutilate and conceal, a record, document and other object, to wit, a USB flash drive” with the intent to impair its use as evidence in a federal criminal investigation and trial.

As to whether swallowing a flash drive would alter, destroy or mutilate it, TSG reports that this drive was manufactured by Kingston and that a Kingston executive said the company doesn’t know if stomach acid would damage a flash drive: “`As you might imagine, we have no actual experience with someone swallowing a USB,’ Mike Sager wrote in an e-mail to TSG.”

I decided to do a post about this case addressing the 4^th Amendment issues that didn’t arise here. . . . because they could arise in another, similar case.

No 4^th Amendment issues arose in this case because Necula consented to let the doctors remove the flash drive from his stomach. As I’ve explained in earlier posts, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures; as I’ve also explained, to be “reasonable” a search or seizure must be conducted pursuant to a search warrant or pursuant to one of the exceptions to the requirement that officers get a warrant. As I’ve noted in other posts, consent is an exception to that requirement; by consenting, Necula waived his right to object to the removal of the flash drive.

Let’s assume, for the purposes of analysis, that Necula hadn’t consented to the surgical removal (I’m assuming surgery because how else would they have gotten the thing out of his stomach?) of the flash drive. Let’s also assume, again for the purpose of analysis, that the agents need the information that’s on that flash drive; we’ll assume they know what’s on it and that the evidence is very important to their investigation and what will almost certainly become an important prosecution. So they need the evidence but Necula refuses to consent to surgery; that means they have to arrange to have the flash drive surgically removed from his stomach without violating the 4^th Amendment, because if they violate the 4^th Amendment, they won’t be able to use it in the prosecution their investigation is heading toward.

In 1985, the U.S. Supreme Court decided a case that involved an analogous situation, except the evidence was a bullet, not a flash drive. The case is Winston v. Lee, 470 U.S. 753 (1985), and this is how it arose:

At 1 a.m. on July 18, 1982, Ralph Watkinson was closing his shop. . . . [when] he observed someone armed with a gun coming toward him from across the street. Watkinson was also armed and when he drew his gun, the other person told him to freeze. Watkinson fired at the other person, who returned his fire. Watkinson was hit in the legs, while the other individual, who appeared to be wounded in his left side, ran from the scene. The police arrived on the scene shortly thereafter, and Watkinson was taken by ambulance to the emergency room of the Medical College of Virginia Hospital.

Approximately 20 minutes later, police officers responding to another call found [Rudolph Lee] eight blocks from where the shooting occurred. [Lee] was suffering from a gunshot wound to his left chest area and told police that he had been shot when two individuals attempted to rob him. An ambulance took [Lee] to the MCV Hospital. Watkinson was still in the MCV emergency room and, when [Lee] entered that room, said `[t]hat's the man that shot me.’ After an investigation, the police decided [Lee’s] story of having been the victim of a robbery was untrue and charged [him] with attempted robbery, malicious wounding, and two counts of using a firearm in the commission of a felony.

Winston v. Lee, supra. Something that might have been a bullet was lodged under Lee’s left collarbone. Winston v. Lee, supra. The prosecutor went to court and “moved . . . for an order directing” Lee “to undergo surgery to remove” the “object thought to be a bullet” from under Lee’s collarbone. Winston v. Lee, supra. The state trial court judge granted the motion, but Lee appealed that decision all the way through the Virginia state court system and then through two federal courts; he lost every time. Winston v. Lee, supra.

On October 18, 1982, just before the surgery was scheduled, the surgeon ordered that X rays be taken of [Lee’s] chest. The X rays revealed that the bullet was in fact lodged two and one-half to three centimeters . . . deep in muscular tissue in [his] chest, substantially deeper than had been thought when the state court granted the motion to compel surgery. The surgeon now believed that a general anesthetic would be desirable for medical reasons.

Winston v. Lee, supra. Lee asked the trial court for a rehearing on the order requiring him to undergo surgery given this new evidence; he lost at the trial court level and before the Virginia Supreme Court, but a federal district court judge enjoined the surgery and the U.S. Court of Appeals for the 4^th Circuit affirmed that decision. Winston v. Lee, supra. The prosecutor appealed to the U.S. Supreme Court, which took the case.

The Supreme Court began its opinion in the case by noting that a “compelled surgical intrusion into an individual's body for evidence implicates expectations of privacy and security of such magnitude that the intrusion may be `unreasonable’ even if likely to produce evidence of a crime.” Winston v. Lee, supra. We are, after all, talking about forcing someone who doesn’t want surgery (and in this case, as in other cases where this issue has arisen, doesn’t need surgery) to undergo general anesthesia and the other unpleasant consequences of a surgical procedure.

The Court noted that a surgical intrusion “into the human body” implicates a person’s “most personal and deep-rooted expectations of privacy,” which means it qualifies as a “search” under the 4^th Amendment. Winston v. Lee, supra. Removing an item from someone’s body could conceivably qualify as a seizure, but it didn’t here and hasn’t in any of the surgical cases that have arisen since: The problem is that the item to be removed from the person’s body doesn’t belong to them; as I’ve noted in earlier posts, a “seizure” under the 4^th Amendment interferes with someone’s possession and use of their property. Since the bullet wasn’t Lee’s, it wouldn’t be a seizure to remove it.

In the rest of its opinion, the Winston Court essentially articulated a 4^th Amendment-plus standard for “bodily intrusion” intended to extract evidence from someone’s person. The Court noted that this is an area where the 4^th Amendment’s search warrant requirement is inadequate; in this case, the police had probable cause to get a search warrant for the bullet and could precisely describe where it was and pretty precisely describe what it was, which meant they could easily get a valid warrant that authorized a search for and the extraction of the bullet. As to the fact that doctors, not officers, would execute the warrant, there’s a line of case going way back in which civilians are called in to assist officers in executing warrants. Telephone personnel, for example, have historically been used to help execute phone taps.

The Winston Court said that to compel someone to undergo surgery without violating the 4^th Amendment, the government has to (i) essentially get a search warrant authorizing the surgery and (ii) show that the surgery is “reasonable.” The Court said the “reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure.” Winston v. Lee, supra. The Supreme Court said that in weighing these interests, a court must consider the following: the extent to which the procedure can threaten “the safety or health” of the person; that “all reasonable medical precautions” will be taken and “no unusual or untested procedures” will be used; and that the procedure “was performed by a physician in a hospital environment according to accepted medical practices.” Winston v. Lee, supra. Finally, the Court said a judge deciding whether to order surgery must consider the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity.” Winston v. Lee, supra.

The Supreme Court applied this analysis to the case before it and held that although all of the parties agreed there was probable cause for the surgery, conducting it would violate the 4^th Amendment. Winston v. Lee, supra. The Court found that forcing Lee to undergo surgery would be a massive intrusion into Lee’s privacy and dignity, would force him to subject himself to certain medical risks and was really not necessary given that Watkinson could identity him as the man who shot him. Winston v. Lee, supra.

That brings us back to Florin Necula. Let’s assume, for the purpose of analysis, that he refused to consent to the removal of the flash drive. Let’s also assume two alternative scenarios: In one, the flash drive can be extracted by using a stomach pump; in the other, it can only be surgically removed from his stomach. We’ll assume the agents and a prosecutor ask a court to order both procedures (as alternatives, of course).

A court would probably order the use of a stomach pump to remove the flash drive, as long as using this procedure wouldn’t post serious risks to Necula’s health and safety. There aren’t a lot of stomach pump cases, but courts have ordered the procedure used to retrieve evidence and their orders have been upheld on appeal. In State v.Williams, 2004 WL 1902368 (Ohio Court of Appeals 2004), for example, the appellate court held that pumping Williams’ stomach over his objections didn’t violate the 4^th Amendment under the Supreme Court’s holding in Winston v. Lee. The procedure was conducted by a doctor in a hospital and all appropriate procedures were followed; this court found, as have other courts, that stomach pumping isn’t as massive an intrusion as surgery.

Now let's assume the flash drive could only be removed surgically. The full Winston v. Lee analysis would come into play here, which means the court would hold a hearing on the risks involved and both sides would present evidence. The defense would present the testimony of doctors who would opine that the surgery threatened Necula’s health and safety; the prosecution would present doctors who would opine that it wouldn’t really threaten his health or safety all that much. There’d also be testimony about the use and risks of anesthesia and other aspects of the procedure involved. The judge would then have to weigh all that, plus the government’s need for the flash drive, and decide whether or not to force Necula to have surgery.

In making that decision, the judge would probably have to consider an additional factor: the risk of NOT forcing Necula to have surgery to remove the flash drive. I don’t know anything about medicine, but I suspect it wouldn’t be healthy to be walking around (or lying around) with a flash drive in your stomach.

I can’t find a surgery case that deals with this particular issue, but there are stomach pump cases in which the court found that forcing the person to have his stomach pumped didn’t violate the 4^th Amendment because of the reasons noted above plus the fact that what he had ingested was “harmful” (i.e., crack cocaine) and would kill him if not removed. If a court incorporated that into the analysis here, I suspect it would order Necula to have the flash drive surgically removed.