SUPREME COURT - OK TO GIVE DRUG SUSPECT LAXATIVE

MADISON, Wis. -- Police were within their rights when they forced a
drug suspect to drink a laxative in hopes of recovering a bag of
heroin he had swallowed, the state Supreme Court ruled Thursday.

The laxative was reasonable because police had a clear expectation it
would help reveal evidence of a crime, the court ruled in reversing a
state appeals court decision. The laxative also may have reduced the
danger Tomas Payano-Roman would have faced had the bag ruptured in
his body, the high court's decision said.

"The government would have had more difficulty in proving its case
without use of the laxative," Justice Ann Walsh Bradley said in
writing for the majority.

Payano-Roman's attorney, Tim Provis, called the decision a defeat for
human rights.

"The average person walking the streets of Milwaukee, they'd say,
'Gee, cops shouldn't be able to do that.' Now the Supreme Court says
go right ahead," Provis said. "It's not good. This was one I really
didn't want to lose."

The case began in 2002 when a Milwaukee County sheriff's deputy saw
Payano-Roman swallow what looked like a plastic bag as he approached
Payano-Roman during a drug stakeout, according to court documents.

The officers arrested Payano-Roman. An ambulance took him to a
hospital, where he was put in a room and handcuffed. Medical workers
decided Payano-Roman should take a laxative, Walsh Bradley wrote, and
an officer gave him six doses.

The next morning hospital staff put a portable toilet in
Payano-Roman's room. The officers picked through his stool and found
the bag, which tests confirmed contained heroin, court records said.
Payano-Roman was convicted of heroin possession.

A state appeals court ruled the laxative amounted to an unreasonable
government search under the Fourth Amendment. The state Supreme Court
disagreed.

The procedure was a significant intrusion on Payano-Roman's dignity,
the opinion said, but waiting for him to pass the bag without it
would have lengthened the time he was exposed to danger had the bag
ripped inside him.

"The procedure was medically indicated to preserve his safety and
health," the opinion said.

Police had a clear indication using the laxative would produce
evidence of a crime, since the deputy saw Payano-Roman swallow the
bag, the opinion said.

"It cannot be ignored that Payano-Roman's situation was self-created
. in an apparent attempt to conceal or dispose of evidence," the opinion said.

Chief Justice Shirley Abrahamson dissented, questioning the urgent
need for the liquid laxative. Six hours passed between Payano-Roman's
arrest and when he drank it, more than enough time to obtain a search warrant.

"If the officers were concerned about the defendant's health, why did
it take them so long to act?" Abrahamson wrote.

She also questioned whether doctors made the call to administer the
laxative. The only evidence is testimony from the officers that a
nurse told the typical procedure in such cases was to use a laxative, she said.

Provis said he's considering a federal appeal. State Department of
Justice spokesman Mike Bauer said the Supreme Court's decision speaks
for itself.