« Interrogating recent research indicating nonprosecution of certain misdemeanors lowers reoffense | Main | "Qualifying Prosecutorial Immunity Through Brady Claims" »

April 19, 2021

SCOTUS grants cert on Confrontation Clause case, and Justice Sotomayor has much to say about two criminal case denieal

The Supreme Court is back in action this morning after a short hiatus, getting started with this new order list that has most of its limited action in criminal law cases.  Specifically, the Justices granted certiorari in a single case, Hemphill v. New York20-637, which presents this criminal procedure issue:

Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

In addition, in Brown v. Polk County, No. 20–982, a case concerning Fourth Amendment requirements for a penetrative cavity search of a pretrial detainee, Justice Sonia Sotomayor issued this lengthy statement respecting the denial of certiorari.  And in Whatley v. Warden, Ga. Diag. & Classification Prison, No. 20–363, a case concerning defense counsel's failure to object to a capital defendant's shackling, Justice Sotomayor issued this lengthy dissent from the denial of certiorari.

April 19, 2021 at 09:55 AM | Permalink


This issue of warrantless body cavity searches while a person is in custody of the police or a jail is most important. These kinds of searches occur far more frequently that most people, including defense counsel, know. For anyone interested in this issue, who has not read the Sixth Circuit's opinion in United States v. Felix Booker, 728 F.3d 535 (6th Cir. 2013), I strongly recommend that you read this extraordinary opinion, which was written by Judge John Rogers, who in 2013 was arguably the most conservative judge on the Sixth Circuit. Booker had been a passenger in a car that was pulled over on a traffics stop. He was subjected to a pat search (unusual for a mere traffic stop), which found marijuana. He was taken to jail (also unusual for a small quantity of marijuana arrest), where he was subject to a visual naked body examination. A Deputy thought he saw something protruding from Booker's anus, but could not reach it. The naked Booker, covered only in a blanket, was taken in the back of a Sheriff's car to a nearby hospital emergency room. Deputies asked a friendly E.R. physician, La Paglia, to conduct a body cavity search of Booker, despite the fact that they had no search warrant. As a matter of medical ethics, the patient, Booker, also did not consent ot the digital rectal exam. In the later litigation, it came out that Dr. LaPaglia had previously conducted such searches (without a warrant) for the police before. When Booker clenched his anus to prevent Dr. LaPaglia's digital body cavity search, the doctor first gave him a shot to sedate him, and then venilated him and administered an I.V. to completely paralyze his body. Dr. LaPAglia's digital search of Booker's anus produced a golf ball sized rock of crack cocaine, weighing far more more than 5 grams (5 grams is the weight of a nickel). The trial Judge denied defense counsel's motion to suppress the evidence. Booker was convicted at trial and sentenced to a mandatory minimum sentence of 10 years. On appeal, the Sixth Circuit reversed, finding that the motion to suppress should have been granted. The real issue was whether Dr. LaPaglia was a state law actor, since searches by private parties are not subject to the Fourth Amendment's warrant requirement. In a one-of-a kind, unprecedented decision, Judge Rogers and the panel found that the Deputy Sheriffs had "de facto deputized" Dr. LaPaglia, making him a state law actor to who the Fourth Amendment applied. The Fourth Amendment also applied to the Deputies who had taken Booker to the E.R. and requested the search. Booker's convictions were vacated and upon remand the evidence was suppressed and the indictment was dismissed. Subsequently, Booker filed a civil rights lawsuit against Dr. LaPaglia and the Deputy Sheriffs. A few months after the Sixth Circuit's opinion in Booker was released, Dr. LaPaglia was himself arrested and prosecuted in Tennessee for illegally possessing (in his home) many narcotics, more than 2 dozen kinds of marijuana (in glass jars in his kitchens) and even the unscheduled anesthesia drug Propofol, which killed the singer Michael Jackson. Dr. LaPaglia's medical license was subsequently suspended. The Felix Booker opinion should serve as a warning to physicians who would aid law enforcement in performing warrrantless body cavity searches, but I suspect that few are aware of its holding.

Posted by: Jim Gormley | Apr 19, 2021 11:33:07 AM

By contrast to what happened in the Felix Booker case, described above, I have a local (Lexington, Kentucky) friend who is a radiologist with more than 30 years in practice at a major local hospital. He was most surprised one day to have D.E.A. Agents show up at his hospital one afternoon with a Mexican drug mule that they had just arrested when he got off a commercial flight at Bluegrass Airport. Earlier in the day, the Mexican detainee had walked across the border at Tijuana, Mexico into San Diego, California. He was followed as he took a taxi to the local airport and bought (for cash) a one-way plane ticket to Chicago. Upon arrival in Chicago, he bought a one-way plane ticket (again for cash) to Lexington. He was detained upon arrival for suspicion of smuggling drugs. The Agents asked my radiologist friend to take X-Rays of his abdomen, to determine whether he might be carrying drugs in his intestines or stomach. Sure enough, the X-Rays show the square corners of the packages that heroin had been sealed into before he swallowed the packages. The detainee was taken to a "dry cell" at the jail (no toilet or basin), where he was given a laxative and eventually excreted the packages of heroin out. This is the kind of alternative to a physically penetrating search to which Justice Sotomayor is referring, as opposed to what was done by a physician to Ms. Brown, when he search her vagina and anus (but found nothing).

Posted by: Jim Gormley | Apr 19, 2021 11:46:19 AM

Reading through the opinions from New York on the new case, it looks like the issue was not seen as a big issue by the lower court judges (perhaps because they were relying on an earlier case that did not get cert). So, it's a little unclear what happened to allegedly "open the door."

I guess this is one of the dangers from a court that has been trying to shrink its docket for the past fifty years. If you pass on an issue early, it becomes engrained in the state or circuit case law so that, when the Supreme Court finally gets around to taking the case, the issue is not well argued in the lower courts.

Posted by: tmm | Apr 19, 2021 1:23:05 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB