Exigent Circumstances, Genital Searches Incident to Arrest – Well You Have to Read It.

State v. Lussier, Minn.Ct.App., 8/18/2009.  At around two in the morning, officers met up with a woman who was wrapped in a blanket, shaking, crying uncontrollably as she reported that she had just been raped inside the next door garage.  The officers checked out the garage, during which they saw various items of female clothing, condom wrappers, and a make shift bed, among other things.  The officers did not see anyone inside the garage.  Roughly an hour later, the officers decided that the rape suspect was inside the house next to the garage, perhaps destroying evidence, such as body fluids.  The officers knocked on the door but got no response so they forced themselves inside.  They found Mr. Lussier inside.  The officers swabbed Mr. Lussier’s bleeding hands, then took him to the hospital for a sexual assault exam.  At the hospital, someone combed his pubic hair and swabbed his cheek, swabbed his hands (again) and swabbed his penis.  All this without a warrant.

The trial court suppressed the evidence obtained during the search of the residence, and the evidence obtained during the sexual assault exam.  The trial court said that there were no exigent circumstances to support the residence search and the sexual assault exam was a fruit of the unconstitutional residence search.  The state appealed this pretrial ruling and gets a split decision.

Although the U.S. Supreme Court has never really settled the question, Minnesota has utilized one of two tests to determine the existence of exigent circumstances:  either a single factor or by the totality of the circumstances.  State v. Gray, 456 N.W.2d 251 (Minn. 1990).  Once such single factor is the imminent destruction or removal of evidence.  Under both tests, the standard is an objective one:  whether the officer reasonably believed that Mr. Lussier was capable of destroying evidence.  That officers had been told by a neighbor that Mr. Lussier was most likely extremely drunk and asleep is interesting but not determinative.  The possible destruction of evidence thus justified the entry into the residence without a warrant.

That said, the hospital exam cannot be excluded as the poisonous fruit.  On the other hand, the examination at the hospital of Mr. Lussier’s genitals was not a valid search incident to a lawful arrest.  First, it may be okay to look at Mr. Lussier’s penis, State v. Riley, 303 Minn. 251, 226 N.W.2d 907 (1975), but that’s a far as it goes without a warrant (or, I suppose, consent).  Moreover, Mr. Lussier was handcuffed and under constant police observation during the exam, which brings this exam within the orbit of Arizona v. Gant, 129 S.Ct. 1710 (2009) (“If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.”).