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.