Mimesis Law
21 July 2019

End Roadside Cavity Searches? Not Exactly

Apr. 19, 2016 (Mimesis Law) — Body cavity searches are something like colonoscopies. And not just because they involve someone getting acquainted with one of your orifices. No one looks forward to a colonoscopy. Yet it’s a useful diagnostic tool for catching colorectal cancers early. We accept doctors probing us “down there” because there is a benefit greater than our temporary discomfort.

Last week my co-bloggers, Chris Seaton and Andrew Fleischman, wrote a post titled “Just as the Founders Intended, the Right to Rape Reasonably.” In case you miss the savvy use of rhetoric, the authors are referring to body cavity searches as rape. And if you want to fully savor what it looks like when a committed defense attorney becomes the prosecutor of law enforcement officers undertaking body cavity searches, then turn your attention to Scott Greenfield’s post too. And if your desire to read about digital penetration, written by lawyers, is not yet satiated, you can turn to Andrew Fleischman’s piece here.

While each post hits on different aspects of the same issue, they all can be crudely summarized as criticizing both the scope of protection provided by the Fourth Amendment and the policy decisions behind subjecting people to body cavity searches. Beyond those two broadly drawn categories, for clarity purposes, we should break body cavity searches into two categories: pre-arrest and post-arrest.

Regarding body cavity searches post-arrest, there are prudent reasons to thoroughly examine those inmates coming into prison or jail. The Supreme Court, addressing both strip searches and cavity searches in the context of incarceration, wrote that among the reasons for a thorough exam are parasites, contagious diseases, identifying rival gang members, alcohol, drugs, weapons, and other potentially hazardous contraband like cigarette lighters. Some may see it as excessive, inmates with an excess of free time on their hands often find extremely creative ways to cause problems for their jailors and each other.

Regarding both the reasonableness of such searches, under the Fourth Amendment, and the legitimacy of the policy behind them, the Court held the following (internal citations omitted):

These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities. (“[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of retained constitutional rights of both convicted prisoners and pretrial detainees”).

The task of determining whether a policy is reasonably related to legitimate security interests is “peculiarly within the province and professional expertise of corrections officials.” This Court has repeated the admonition that, “‘in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters.’”

The upshot here is that there are often legitimate concerns justifying body cavity searches. This is both as a matter of policy and reasonableness under the Constitution. And there is a lack of strong policy reasons to abandon these types of searches.

On the other hand, there are body cavity and strip searches that do not involve anyone already under arrest, e.g. what my co-bloggers called roadside rape. Although the Fourth Amendment is not as deferential here as with regard to a post-arrest detainee, it is still a pretty relaxed standard, perhaps just below the standard used to review strip searches of students. As it stands, the Fourth Amendment has been interpreted to be rather silent on this issue. And my co-bloggers have decried that, as evidenced by the four articles linked here.

Before addressing the issue of reform more broadly, it is worthwhile to pay heed to the availability heuristic. If you Google this issue now, then you will have the distinct impression that there is an epidemic of officers committing rape under the color of law and calling it body cavity searches. It’s the hot media issue. In all likelihood, these cases represent a vanishingly small number of stops that have lead to body cavity searches. In other words, it is necessary to remember the number of people never subjected to it far outnumber those that have.

That’s an important caveat, because the appearance of a crisis can lead to bad policy decisions. If all the 9/11 inspired laws are lost to foggy memories, then another, more recent example is the crisis-inspired effort to ban civil forfeiture. This crisis mindset leads to condemning the entire discussed area as irredeemable and then demand legislative act to vindicate that feeling. Once the passion has faded, you will be left wondering why we let ourselves throw the baby out with the bath water. (She had her mother’s eyes.)

Returning to pre-arrest cavity searches with a little less emotion, it is fair to say that the overriding concerns of jail security and safety do not apply. Moreover, it is a little difficult to imagine that officer safety is relevant issue. It is altogether very likely that an officer would see the person plunge both hands down the pants and furtively dig around for an anally-concealed weapon.

So, the primary justification is the “competitive enterprise of ferreting out crime.” If an officer makes a stop and suspects that the driver is concealing drugs inside themselves, then not attempting recover those drugs means you watch a drug courier drive away, free to profit from others’ addiction. Those officers who are deeply committed to the drug war would rather not see the bad guys win even once, so they are probably willing to consider uncommon methods to safeguard the community. But unless those officers are from Krypton, it’s difficult to imagine that there would frequently be a reasonable basis for suspicion of internally concealed drugs.

Absent some empirical data, we cannot say with great confidence that a majority of people would, indeed, oppose such roadside searches. People choose to get colonoscopies when they do not prefer them. So, it’s not difficult to imagine some people favoring other people, presumptively criminals, receive a roadside rectal exam. While it would be interesting to see any such survey results, it is probably a fair guess that most folks would not be in favor of yanking that driver out of his car and then doing this.

Where we find ourselves is that the public would probably prefer more legal protection against strip and body cavity searches, the benefits of those searches are probably minimal. Officers are quite likely to guess wrong at least as often as they are to guess right, which in turn will cause more harm than good. And the Fourth Amendment does not generally prohibit those searches, which prevents citizens from filing a civil rights action. That all adds up to a good argument for reform.

The knee-jerk, crisis-based legislating would be to simply outlaw those searches altogether. But as described above, there are circumstances were such searches are a good idea. And it is at least conceivable that you could develop probable cause to believe someone was anally concealing drugs, yet lack probable cause to arrest that person. Yet there is a relatively straightforward way to reduce body cavity and strip searches—require a warrant. It’s a widely accepted principle that if you want less of something, then you raise the transactional costs associated with that thing. And requiring that law enforcement get a warrant will result in less body cavity and strip searches.

Ohio, for example, already has such statutory scheme in place. Among the things that this bill requires is probable cause for both and a warrant for body cavity searches; it narrowed exigent circumstances to medically related ones; body cavity searches can only be performed by certain medical professionals; a supervisor must give authorization before either is performed; it criminalizes an lawful search; and not only does it permit suit, but also it specifically permits seeking punitive damages. As a practical matter, this bill effectively eliminated roadside cavity searches and made strip searches rare events.

While there are legislative options for proscribing body cavity and strip searches, such proposals should be well-thought out and considered because legislation resulting from press hysteria has given us many bad laws. And we simply do not need more of them.

24 Comments on this post.

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  • Dan T.
    19 April 2016 at 9:53 am - Reply

    I see you’re citing your earlier idiocy regarding asset forfeiture as an example to justify this one too. Is there no level of oppression you won’t support in the name of the insane “war on drugs”?

  • Mollyg
    19 April 2016 at 10:37 am - Reply

    We have a ban on unreasonable searches in our constitution, and many statutory laws banning unconsensual penetration of genital areas, but none of these is stopping these abuses of citizens by police. The author suggests that we pass laws requiring a warrant, but we already have.

    I suggest that we enforce the laws already in place and prosecute any police officer who performs a cavity search in violation of the 4th amendment. As long as there is no criminal consequence for these violations, then they will continue.

    On a similar note, there have been recent posts across the internet suggesting the radical idea that we begin our reform of the police by prosecuting cops who commit perjury. And note that perjury is not subject to the “split second decision” or “for officer safety” excuses of use-of-force type situations. It bugs me to no end that we live in a society where prosecuting police for crimes they commit is a controversial idea.

    • shg
      19 April 2016 at 11:19 am - Reply

      On a similar note, there have been recent posts across the internet suggesting the radical idea that we begin our reform of the police by prosecuting cops who commit perjury.

      If by “across the internet,” you mean Fault Lines, yes.

  • Adam Sherman
    19 April 2016 at 10:38 am - Reply

    While I agree that anal searches are necessary to catch criminals, isn’t it still unnecessarily humiliating to do it on the side of the road? Shouldn’t a person’s butt require *at least* the same amount of protection as their house or their apartment? Especially when there is only the cop’s intuition is the only indication they have that someone is trafficking. After all, cops, at the end of the day, are just normal people.

    As an addendum, I actually think that what you call “anti-cop” legislation protects cops in the long run. If a bad cop can decide to stop someone, call them names, and search their body cavities in full view of the public just because they feel like it and not get punished, that builds resentment. Eventually, that resentment spills over and Murphy’s Law informs us that it is more likely to get good or average cops hurt or killed than bad cops. But if people see that cops can’t randomly hurt people without consequence, they will cease to feel the need to lash out.

    Anyway, that’s just the two cents of someone who isn’t a cop or a lawyer. I hope I made a positive contribution to the discussion.

  • Scott Jacobs
    19 April 2016 at 10:48 am - Reply

    I somehow doubt the good Prosecutor wouldn’t be so in favor of roadside cavity searches if it was his ass getting a finger or two shoved up it on the side of the road.

    But that wouldn’t happen…

    After all, the guy is white.

  • Chris
    19 April 2016 at 11:14 am - Reply

    The drug war has led to lots of bad policy and government overreach.For starters, get a damn warrant the same as they’d have to in order to search a house.

    That said, there can be legit reasons. Can’t claim it is unreasonable if That is where you try to hide stolen property. I’ve seen this…

    How badly does a burglary victim really want grandma’s wedding ring back?

  • Chris
    19 April 2016 at 11:16 am - Reply

    Race baiting and SJWism lowers the quality of the discussion. As if white people are never abused by their gov…

  • shg
    19 April 2016 at 11:23 am - Reply

    While there are many things in here with which I take issue, there is a specific problem with the warrant solution. If they lack probable cause to arrest for lack of evidence that a crime has been committed, the cops also lack probable cause to obtain a warrant for a body cavity search.

    So, it would seem that either cops get to indulge in anal rape upon their own personal sense of suspicion, or they have to let the potential culprit walk. Without PC, there can be neither an arrest nor a search warrant.

    • Andrew King
      19 April 2016 at 11:42 am - Reply

      Are you saying PC is too high a standard to use?

      • Ray Lee
        19 April 2016 at 12:15 pm - Reply

        Its not that PC is too high standard to use, its that the police officer on the scene needs to run it by a neutral and detached magistrate (or the best available facsimile thereof) to determine if he / she really has PC for the search.

      • shg
        19 April 2016 at 12:20 pm - Reply

        Not at all. But even if the standard for a physical invasion into a human beings body was as low as PC, such that at least it would be based on a warrant rather than a cop’s feelings and inclination to insert a part of his body into the anus or vagina of an unwilling person’s body, it would still fail to resolve the issue.

        Sometimes, the answer is that you don’t get to catch every suspected bad guy, no matter how outrageous the violation of their body. And if there’s no PC for arrest or warrant, because when there’s no evidence of a crime, then cops should keep their fingers out of people’s anuses and vaginas.

        • Chris
          19 April 2016 at 1:33 pm - Reply

          If someone has swallowed or inserted a potentially dangerous substance, then that may be an exigent circumstances.If the cops decided to let someone die rather than taking them to the hospital for a stomach pumping you’d have another fault lines post about that.

          • shg
            19 April 2016 at 2:13 pm -

            If the police see someone swallow something, or insert something, then we have a very different situation. If they don’t see someone do that, then no basis would exist for the police to assume they did.

          • WJM
            19 April 2016 at 3:24 pm -

            Andrew–is there anything a cop could find with a cavity search that wouldn’t show up in an x-ray (or whatever form of digital imaging)?

            I’m just not seeing an argument for forcefully subjecting legally innocent people to such a degrading and humiliating procedure when there are less invasive alternatives available. I would much rather face the prospect of losing a few hours time than be forced to allow a stranger to probe my nethers against my will.

            Takes more time, but your solution is already focused on raising the transaction cost. More expensive, sure, but then we’re balancing dollars against subjecting a legally innocent person to a humiliating and degrading fishing expedition. If police just really really HAVE to search, why not simply require the less invasive procedure?

          • Andrew King
            20 April 2016 at 7:35 am -

            WJM,

            As far as using medical imaging, that could be a fine alternative. Except if something metal was shoved up there, the scan could end badly for the human in the machine. And those machines are still relatively rare, large, and expensive to use. Compared to a gloved up finger of a nurse, it is an exceptionally expensive alternative.

            As I eluded to in the post, law enforcement driven cavity searches here are quite rare outside of jails and prisons. In fact, I cannot remember the last case that I saw with one.

      • Scott Jacobs
        19 April 2016 at 2:22 pm - Reply

        The police certainly seem to think so…

  • Ray Lee
    19 April 2016 at 12:47 pm - Reply

    First, I question the assertion that the Fourth Amendment has been interpreted to be rather silent on the issue of pre-arrest body cavity searches without a warrant. While I don’t know of any cases directly on point, that is different than saying the Fourth Amendment has been interpreted to be (rather) silent on the issue. It specifically says people get to be secure in their person and warrants shall only issue upon probable cause. To me, that addresses it rather squarely.

    Second, it is not much comfort, to me at least, that the vast majority of people subject to roadside stops are able to escape body cavity searches. I think the issue is whether a given roadside body cavity search passes Fourth Amendment muster. While I can’t imagine many would, that may well be the failing of my imagination. That said, the Aiken stop clearly did not.

    Addressing the “primary justification,” the Constitution does not concern itself with how “deeply committed” the police officer is to the war on drugs or any other war on crime. Likewise, as the Fourth Amendment articulates an individual right, it matters not whether only some or virtually all of the police, or even the public at large, would support a given roadside cavity search. The deeply committed police officer must suck it up and let the suspect drive away, potentially with concealed contraband, when the options are either violate the Fourth Amendment or not.

    • Andrew King
      20 April 2016 at 7:41 am - Reply

      I made that statement for two reasons. First, there is scant case law here about body cavity searches. The cases generally involve schools and jails. Second, the case law that does exist establishes a relatively low bar on such searches.

  • maz
    19 April 2016 at 2:26 pm - Reply

    IANAL, but I have to believe even the strictest constructionist view of the Fourth Amendment would forbid the use of ferrets….

  • Windypundit
    19 April 2016 at 3:28 pm - Reply

    “the appearance of a crisis can lead to bad policy decisions”

    I know what you’re saying. Just off the top of my head there were the prosecutions during the the Satanic Ritual Abuse panic, the heavy-handed laws enacted during the crack epidemic, the drug war escalation after the death of Len Bias, the ever-expanding war on the shrinking problem of drunk driving, and now the absurd conflation of prostitution with slavery.

    “press hysteria has given us many bad laws”

    It’s amusing to see people in law enforcement suddenly complaining about bad laws caused by press hysteria. Not that they’re necessarily wrong, of course. But it’s still amusing.

    • Andrew King
      20 April 2016 at 7:41 am - Reply

      What can I say, I am the Ron Swanson of prosecutors.

  • David Woycechowsky
    19 April 2016 at 5:54 pm - Reply

    I take issue with the idea that police do these cavity searches primarily to ferret out crime. I think the primary reason is simple hatred for some of the people they pull over. In some cases it is probably race hatred. I some cases it may be hatred of the poor, or those with tattoo’s or whatever. In some cases it may be a hatred based on a perception (correct or incorrect as the case may be) that the subject didn’t appreciate being pulled over, or is not respectful enough of police in general.

    A cavity search is a good way for a police officer to punish a person whom she does not like.

    • Andrew King
      20 April 2016 at 7:44 am - Reply

      That’s entirely discounting that there is a thinking human attached to the probing finger.

      • Scott Jacobs
        20 April 2016 at 7:25 pm - Reply

        I thought we were talking about cops. Make up your mind.