The warrant provided: “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” (emphasis added). The warrant goes on to say that Officer Miller was “ordered to seize such sample, obtained on such search, and forward such samples for immediate analysis.” Officer Miller requested both blood and urine samples in the warrant application, in part, because he had been trained that both should be obtained.
At roughly 1:35 a.m., Officer Miller and Officer Lanning took Mr. Lockard to bed number nine in the Emergency Department; the curtains were pulled around the bed to protect Mr. Lockard's privacy; Officer Miller handcuffed Mr. Lockard to the bed; and Officer Miller and Officer Lanning grabbed Mr. Lockard's ankles in order to restrain him “so he wouldn't kick any of the nurses.” Officer Miller testified that during this time, Mr. Lockard was actively resisting the procedure. When asked if he complied with the catheterization, Mr. Lockard testified that he was “forced into complying.” Mr. Lockard told Nurse Walston that he did not want to be catheterized. Nonetheless, Nurse Walston pulled down Mr. Lockard's pants, exposing his genitalia, and prepared a sterile field by putting on sterile gloves and cleansing Mr. Lockard's penis with Betadine.
Nurse Walston subsequently prepared a straight size 16 Foley catheter for insertion by applying lubrication to the catheter. She then attempted to catheterize Mr. Lockard by beginning to insert the Foley catheter into his penis. Around this time, Mr. Lockard informed Nurse Walston that he had an enlarged prostrate. For this reason (and because she was perceiving a lack of cooperation on Mr. Lockard's part), Nurse Walston removed the Foley catheter and began preparing a Coude catheter, which is smaller and can pass through an enlarged prostrate. The procedure with the Coude catheter was completed and a urine specimen was obtained in roughly two minutes. Mr. Lockard claims that he suffered considerable pain during the procedure, describing it as “[j]ust as if somebody would take a burning hot coal and stick it up your penis” and “worse than a toochache.” Mr. Lockard was not examined following the catheterization, and he was discharged from the Dearborn County Hospital shortly after 2:00 a.m., into the custody of the Lawrenceburg police.
Mr. Lockard was taken to jail and charged with OWI, OWI Refusal, and Obstruction of Justice for refusing to consent or cooperate in the catheterization.FN5 While at jail, Mr. Lockard noticed that his urine was “cloudy.” Roughly one week after the incident, on March 20, 2009, Mr. Lockard visited Dr. Lynn Eiler for problems related to burning urination. Dr. Eiler prescribed Mr. Lockard antibiotics, which apparently cured the burning. However, Mr. Lockard's urinalysis was negative for infection. On June 15, 2009, Mr. Lockard again sought treatment for urination problems, this time with Dr. Samantha Wood. Dr. Wood referred Mr. Lockard to Mr. Michael Maggio, who, on July 6, 2009, noted that Mr. Lockard's prostate “was tender consistent with clinical prostatis.” That said, it is worth noting that Dr. Michael Koch, a physician hired by defense counsel, has reviewed the relevant evidence and opined that the catheterization at issue was “atraumatic and no urologic injury occurred to [Mr. Lockard].”
On April 3, 2009, the Indiana State Department of Toxicology received Mr. Lockard's blood and urine specimens for testing purposes. Weeks later, on April 20, 2009, Mr. Lockard entered into a plea agreement, in which he pleaded guilty to reckless driving and received a 180 day suspended sentence, 180 days of probation, a $100 .00 fine, and was assessed $165.00 in court costs. On June 23, 2009, the Department of Toxicology reported that Mr. Lockard's blood ethanol level was 54 mg/dl (or 0.05%) and his urine ethanol level was 85 mg/dl (or 0.08%). On July 6, 2009, the Department of Toxicology reported that Mr. Lockard's blood tested positive for benzodiazepines, opiates, marijuana, oxycodone, opiods, and MDMA (i.e.ecstacy). Mr. Lockard's urine tested positive for benzodiazepines, opiates, marijuana, oxycodone, and hydromorphine/hydrocodone. At his deposition, Mr. Lockard described these results as “bogus,” “trumped up,” and “fantasy land.”
Importantly, the warrant provides: “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” (emphasis added). The warrant goes on to say that Officer Miller was “ordered to seize such sample, obtained on such search, and forward such samples for immediate analysis.” Officer Miller requested both blood and urine samples in the warrant application, in part, because he had been trained that both should be obtained.
Specifically, in November 2008, Officer Miller attended a recertification continuing education course at which Dr. Wagner, the head of the Department of Toxicology at Indiana University, told the officer that Indiana University Department of Toxicology needed samples of both urine and blood specimens when completing toxicology kits. On this point, Officer Miller testified that the Department of Toxicology does “preliminary testing on the urine to have an idea what to test for in the blood ... [t]hat way they don't use the blood sample just running queries to see what may test positive in it.” FN1 Moreover, the state kit from the Department of Toxicology contained vials for both blood and urine. Finally, Officer Miller testified that because the warrant required both blood and urine samples, he felt obligated to obtain both, stating that “[i]t's an order from the judge ... I'm complying with the judge's order.”
The District Court in considering the defendant's Motions to Dismiss discussed the law applicable:
"There are two leading Supreme Court cases addressing whether the state's intrusion into a criminal suspect's body constituted a Fourth Amendment violation. First, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the police did not violate the Fourth/Fourteenth Amendments when, with probable cause but without a warrant, they had a physician extract blood from a person suspected of drunk driving who had declined a breathalyzer test and objected to a blood test. Id. at 772.
"Of course, not all intrusions into a suspect's body are permissible under the Fourth Amendment. This point was driven home in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), where the Supreme Court ruled that the State of Virginia could not compel a criminal suspect to undergo a surgical procedure to remove a bullet lodged in his chest, even though the bullet would have been helpful to the state in prosecuting the suspect for attempted robbery. Id. at 767. To that end, Winston emphasized that “a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect.” Id. at 761. Moreover, Winston applied the Schmerber balancing test, which weighs the following factors: (1) the extent to which the procedure may threaten the safety or health of the individual; (2) the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity; and (3) the community's interest in fairly and accurately determining guilt or innocence. Id. at 761–63.FN8 One upshot of Winston is that the “reasonableness of surgical intrusions beneath the skin depends on a case-bycase approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure.” Id. at 760."Clearly, in terms of intrusiveness, a case like Mr. Lockard's—involving forced catheterization—falls in between Schmerber and Winston. In fact, the Seventh Circuit has expressly recognized that removing urine through the placement of a catheter is not as intrusive as the removal of a bullet, but that it is worse than a blood draw. See Sparks v. Stutler, 71 F.3d 259, 261 (7th Cir.1995) (“A catheter is more intrusive than a needle but less intrusive than a scalpel, making it hard to classify the procedure under an objective reasonableness inquiry.”). Further, at the time of the incident—March 13 and14, 2009—the Seventh Circuit had addressed forced catheterizations in the context of § 1983 on two occasions."
In granting the defendant's Motions to Dismiss, the District Court found several cases holding that forced catheterizations are not an unreasonable procedure for gathering evidence (see opinion below). As such, the court found that the defendants were entitled to qualified immunity and dismissed the case:
"Beginning with the first method of showing the existence of a “clearly established” right, the Court simply cannot find that, at the time of Mr. Lockard's catheterization, a closely analogous case established that any of the individual Defendants' conduct was unconstitutional. To the contrary, Seventh Circuit precedent is clear that an involuntary catheterization does not automatically violate the Fourth Amendment as a matter of law, even in the absence of a warrant. See Sparks, 71 F.3d 648. Significantly, here, the warrant required the removal of both blood and urine samples."
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