No Butts About It

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 4th and 5th 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 4th 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 unfeathered 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 4th and 5th 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.