The Latest Poop On Civil Liberties

While there is little question that law enforcement officers must endure a lot of crap on the job, the Wisconsin Supreme Court, in a recent ruling, has taken such [fecal] matters to a whole new level, as reported in today’s Washington Post:

Swallowing dope or other contraband won’t hide it anymore.

The Wisconsin Supreme Court has ruled that Milwaukee police officers were justified in using laxatives to search a man who had swallowed a bag of heroin during a 2002 drug bust. The decision found that police did not violate Tomas Payano-Roman’s constitutional rights against unreasonable search by forcing him to drink a laxative called GoLytely every 20 to 30 minutes until the drugs came out.

In its 5 to 2 decision, the court said the laxative use was acceptable because it was carried out under medical supervision and met dual medical-treatment and evidence-gathering purposes. Dissenting, Chief Justice Shirley S. Abrahamson said the evidence should not have been allowed since police didn’t get a search warrant.

Officers saw Payano-Roman swallow the bag as they approached him. He pleaded guilty to possession of heroin and was sentenced to 60 days in jail.

“Drug investigations are tough,” said Milwaukee County Sheriff David A. Clarke Jr. “Drug suspects, drug dealers will go to great length to escape detection. When someone swallows the evidence, which is not an easy thing to do, the fact that the stuff was taken using a laxative should give the drug world something to think about.”

It should also give civil libertarians something to think about. In reviewing the decision of the Court (thanks to TalkLeft for the link), I am not certain I entirely agree with the analysis of the majority opinion. In her dissent, Chief Justice Abrahamson questions, among other things, the legality of imposing medical treatment of uncertain necessity upon a criminal suspect:

[A]n individual may choose not to accept medical treatment. Individuals have a constitutional right to refuse medical treatment. This right is often analyzed under general privacy principles, but more properly is analyzed under the Fourteenth Amendment liberty guarantee. Had the defendant not been under arrest, he surely would have been permitted to refuse a laxative if he had ingested a dangerous material. No authority is cited for the proposition that an arrest negates the need for a person’s consent for medical treatment or for a showing of medical necessity. [full text of decision]

In this era of diminishing privacy and eroding civil liberties, the Wisconsin court’s decision—however narrow its scope—is cause for some concern and further indication that those of us who care deeply about the Constitution must never be lax in its defense.