No Butts About It Bruce Robert Nelson's conviction ought to be overturned. He ought to have maintained a civil suit against the Hennepin County Sheriff and the Hennepin County Medical Center in Minneapolis for violation of his federal constitutional rights. These rights include, inter alia, his rights against illegal search and seizure of the drugs from inside his body, and violation of his rights against self incrimination. These rights are granted to every American resident and citizen including Nelson, by the 4 th and 5 th Amendment to the Constitution, respectively.
The authorities including the warden at the federal prison should also be made parties to the civil suit and their liability may include, such causes as unlawful imprisonment, and intentional infliction of emotional distress. At least those remedies would be available to Nelson if and only if 1) No further warrant was obtained before the invasive search of Nelson's stomach and 2) No appeal was taken and the United States Supreme Court did not specifically sanction this operation upon the defendant. The reason for the above is that the evidence was seized upon an invalid warrant. The warrant that was obtained to search Nelson's person and possessions was never intended to authorize such invasive procedure.
Under the 4 th Amendment, the warrant is required to specify the physical boundaries of the search and the U. S. Supreme Court has consistently held that if a surgical procedure is needed then also a warrant. Had the Hennepin County Sheriff obtained another warrant before the surgical procedure they may have been shielded from liability in Nelson's civil suit. The requirement for a special warrant in the case of such a highly invasive surgery is an attempt to balance the authorities right to force a suspect to undergo serious medical surgery on suspicions that are spurious at best and at worst giving un feathered power to authorities which may be abused. If the evidence is sufficiently strong then it should be presented to an independent federal magistrate or judge for an evaluation and a determination of the existence of the 'probable cause' requirement of the 4 th and 5 th Amendments to the Constitution.
The fact that Nelson signed a consent form prior to the performance of the endoscopy which provided the incriminating evidence was not in and of itself conclusive. Apparently Nelson did not have a lawyer before he signed the consent form. There is no indication that he was given Miranda warnings but we do know that he signed under protest and authorization given under these inherently coercive conditions have been repelled by the judicial system. Furthermore, in the absence of Miranda warnings or an attorney to protect Nelson's rights the cops misled Nelson into believing he had only two choices both of which included invasive procedures but never advised him of his right to refuse consent. The activities by the police created a toxic mix which should include the suppression of the evidence retrieved from Nelson's stomach. Notwithstanding the fact that Nelson was actually in possession of illegal drugs, (in this case), society has justly interposed these warrant requirements to prevent the tyrannic abuse of citizens by the police power of the state.
Although not perfect, these procedures require that an independent magistrate review the evidence that a crime has been committed and that this suspect most likely committed that crime. This is called the production of probable cause. This showing was originally required to search Nelson's person and possessions and was obtained. The search did not and should not include a surgical probe inside his body. It could and should however include less intrusive probes such as looking in his mouth, under his tongue or perhaps even up his rectum from a 'spread eagle' perspective. A surgical operation however, in search of evidence, is so intrusive and inconvenient to the suspect such that further probable cause needed to be shown weighing the social interest of the likelihood of finding contraband against the inconvenience to the suspect of undergoing such an invasive medical procedure.
This is a requirement of the United State Constitution. Because that second warrant was not obtained and the police forced Nelson to undergo the invasive medical procedure, they thereby violated Nelson constitutional rights against illegal search and seizure as well as forcing him to give evidence against himself. The remedy for these violations in a criminal trail, such as possession of drugs, is to suppress the evidence which was improperly seized. This sanction was imposed as a social policy to discourage improperly seized evidence. Without the evidence of the 18 grams of Heroin, Nelson could not have been convicted of possession. His conviction, being tainted by the fruits of illegally seized evidence was itself thus rendered illegal.
His imprisonment on this basis should support the civil suit of unlawful imprisonment and intentional infliction of emotional distress against the warden and prison authorities while the forced surgical procedure without the constitutionally required 2 nd warrant would support the civil suit against Hennepin County's Sheriff and Medical Center for violations of Nelsons constitutional rights. This is a policy that society has long agreed upon and has been formalized in the Constitution and it sta tutorial progeny. Colloquially the justification for this policy is expressed as follows: 'We'd rather allow 99 guilty people to go free than to convict one innocent person.' The war on drugs, as a countervailing social policy does not rise to the level of a time honored constitutional mandate and justly so. When both policies come into conflict, the time honored constitutional policy should prevail. Therefore, zeal and desire to win the war on drugs does not and should not supersede such constitutional rights as have been transposed into concrete social policy.