Body cavity searches are occasionally necessary to detect and retrieve evidence of criminal activity, particularly illegal hauling or smuggling of drugs and other contraband. Body cavity searches are subject to police search laws, although with exceptions. If done as a search for evidence of crime, they are subject to some of the same rules as other searches for evidence in most circumstances.
They may only be done with a search warrant unless they are performed under conditions that justify a search without a warrant, e.g., there are exigent circumstances. They should be performed according to specific rules that address the issues involved, such as privacy and mental and physical health and safety.
There are, however, special exceptions to the warrant requirement for body cavity searches. One exception is when the search is performed at a national border or in an airport. This exception gives law enforcement permission to conduct searches, even body cavity searches, at borders and airports without probable cause and without a search warrant.
The rationale is that the government’s interest in protecting national security is at its highest in these areas. Therefore, body cavity searches may be reasonably performed without a warrant or probable cause. The U.S. Supreme Court has not specified what level of suspicion would be needed to perform a “nonroutine” search, such as a body cavity search at a national border without probable cause or a search warrant.
Lower federal courts have concluded that for body cavity searches, officers would need to have a “real suspicion” or something equivalent to reasonable suspicion.
As at a national border or an airport, law enforcement in jails and prisons is considered to have justification for performing routine body cavity searches of inmates and people who have been arrested. The U.S. Supreme Court has stated that these routine body cavity searches are justified by law enforcement’s need to stop weapons and other contraband from entering a jail or prison.
There are two primary types of body cavity searches: visual and manual. Visual body cavity searches usually involve:
- Less invasive examinations of body crevices, openings, and folds, such as in and around the ears, nose, or rectum;
- The use of a flashlight or other similar gadget to assist in visual verification;
- A combination of strip search methods, pat-downs, and other kinds of searches;
Manual body cavity searches may involve:
- More invasive physical contact, including inserting an object, e.g., a speculum, or feeling into more private areas of the body such as the rectum, vagina, or other internal cavities;
- Use of medical instruments or tools to assist in the body cavity search;
- In some cases, administering laxatives or other methods to speed the elimination of evidence from the body.
What Happens During a Body Cavity Search?
Many contraband items are capable of being concealed in body cavities via means such as insertion into the vagina. Illegal drugs are often packaged in condoms and swallowed to allow holding in the colon.
Cylinders such as cigar tubes are used to hide money, intravenous needles, and knives. Keys for handcuffs that have been duplicated can be transmitted to the wrong people if hidden in certain bodily orifices, such as the nasal passages or in a person’s mouth underneath the tongue.
In a thorough visual body cavity search, a flashlight is used to brighten bodily areas, including the nostrils, ears, mouth, navel, penis (urethra and foreskin) or vulva, and buttocks. Typically, the detainee is directed to cooperate with manipulating these body parts as they are examined.
During manual body cavity searches, an inmate is temporarily moved to an offsite clinic to be inspected by a licensed physician. Body orifices are searched using fingers or instruments. The occasions in which these examinations may be done are frequently limited to cases where there is at least some evidence to support the suspicion of the presence of contraband.
Of course, even manual cavity searches cannot deter all smuggling of contraband. This is because they cannot catch things in the intestines or stomach. In addition, because they are intrusive in nature as well as potentially degrading, it has become relatively routine for authorities to separate individuals in a monitored environment instead until they pass excreta. Or they may x-ray the person’s pelvic area as it is less intrusive and psychologically harmful.
Are Body Cavity Searches Legal?
With certain exceptions, body cavity searches may only be done with a warrant unless they are performed under conditions that justify a search without a warrant, e.g., there are exigent circumstances. They should be performed according to specific rules that address the issues involved, such as privacy and mental and physical health and safety.
There are special exceptions to the warrant requirement for body cavity searches. One exception is searches done at national borders or in airports. The border search exception allows law enforcement to make searches, including body cavity searches, at borders and airports without probable cause, so without a warrant.
Because the government’s interest in protecting national security is paramount in these situations, body cavity searches may be reasonably performed without a warrant and without probable cause. Still, law enforcement must have some level of suspicion, a level that is yet to be defined.
The U.S. Supreme Court has declined to define what level of suspicion is required to perform a “nonroutine” search, such as a body cavity search at a national border. Lower federal courts have ruled that for body cavity searches, law enforcement should at least have a “real suspicion” or something similar to reasonable suspicion that the search is going to discover evidence of criminal activity.
Body cavity searches for which law enforcement has obtained a warrant may be done legally. Searches done under recognized exceptions to the warrant requirement are also legal.
Still, even if law enforcement has a legal warrant for a body cavity search, some federal courts have held that search warrants for body cavity searches are unreasonable if there are less invasive methods of looking for evidence in body cavities, e.g., x-rays or ultrasound procedures.
Still, police may legally perform a body cavity search on a criminal suspect in good faith, even if the search warrant is later found invalid.
Some inmates in prisons and jails and human rights activists claim that body cavity searches are done not to stop the flow of contraband but rather to humiliate detainees. A visual examination of the rectum will not expose things hidden deeper inside the intestinal tract. So, nothing is lost by foregoing this type of search.
Of course, it is also true that inmates and people who have been arrested are found to have hidden controlled substances and other kinds of contraband in their bodily cavities. Law enforcement encounters these situations routinely.
Because these searches are clearly intrusive and compromise a person’s right to privacy, the legality of visual and manual body cavity searches has been challenged.
In the United States, Bell v. Wolfish is the benchmark case on this matter. In assessing the case, the U.S. Supreme Court set a standard for what is reasonable in conducting body cavity searches. Among these are security concerns in jails and prisons. In the Bell case, the U.S. Supreme Court held that body cavity searches without a warrant and without probable cause conducted on detainees after contact visits did not violate the Fourth Amendment.
When Are Visual Body Cavity Searches Conducted?
Visual body cavity searches are performed routinely in jails, prisons, or psychiatric/medical wards. This is usually done to stop people, inmates, guards, and visitors from transporting controlled substances or small weapons into buildings. They may also be performed at airports and at national border checkpoints.
Visual body cavity searches may be part of the routine intake procedures for new inmates or psychiatric patients.
The police may need to have a reasonable suspicion to conduct a visual body cavity search, although, as noted above, the law in this area is unclear. Law enforcement most likely does not need to have probable cause to conduct a visual body cavity search in jails, prisons, and at national border crossings.
When Are Manual Body Cavity Searches Allowed?
Manual body cavity searches are usually conducted when a suspect is already held by law enforcement authorities, usually on suspicion of smuggling drugs. In particular, cocaine smugglers frequently transport the drugs across international borders through the body cavities of “runners.” As noted above, police probably need at least reasonable suspicion to perform a manual body cavity search.
Nevertheless, police may need increased suspicion in some circumstances to conduct a body cavity search since they are much more invasive than a visual body cavity search. Or they may want to use alternative methods that are less invasive. Authorities have been sued in some circumstances because a manual body cavity search was conducted improperly.
Do Body Cavity Searches Violate the Fourth Amendment?
Generally speaking, body cavity searches do not violate the Fourth Amendment to the U.S. Constitution. The Fourth Amendment protects us from government intrusion in our homes and persons and provides Americans with a reasonable expectation of privacy. Unfortunately, federal courts are divided on what the requirements are with regard to manual body cavity searches.
In the case of Brown v. Wisconsin, the question was whether this expectation of privacy holds with respect to the most private zones of a person’s body. The U.S. Supreme Court indicated that less intrusive, alternative methods should be used if the search is done without a warrant.
The case of Brown v. Wisconsin looks at the issue of whether police officers were justified in having a doctor conduct a warrantless search of a female prisoner’s vagina and anal cavity with a speculum. An ultrasound done before the manual search had revealed no contraband in the female’s body. The female was in jail after having been arrested for shoplifting.
County jail policy allowed such a search of inmates whenever the police had “reasonable grounds” to believe a detainee was concealing “weapons, contraband, or evidence” or otherwise “believe[d] that the safety and security of the jail would benefit” from such a search. In other words, such a search could be conducted on the basis of reasonable suspicion. Probable cause was not required.
In the Brown v. Wisconsin case, the officer in charge ordered the search when two other inmates had communicated a “tip” to him to the effect that the female inmate had concealed contraband in her body.
While the court refused to grant the petition for a writ of certiorari, it directed courts in similar cases in the future to consider whether less invasive methods are available before allowing searches of this type without a warrant. Of course, this implies that if police have a warrant, less invasive methods do not have to be used.
Visual body cavity inspections are expected when a person is checked into jail. However, the Fourth Amendment only permits these visual tests to be done if the jail’s security interests are weighed against an inmates’ privacy interests. Federal circuit courts are divided about how to handle the issue of routine searches of this type.
They are otherwise subject to the same law as other types of searches. A warrant is required unless the search is made pursuant to an exception to the warrant requirement. The U.S. Supreme Court has directed police to use alternative, less intrusive methods than manual body cavity searches when they are done without a warrant and alternative methods are available.
The Tenth Circuit mandates probable cause for strip searches, but the Seventh Circuit has an even lower standard. The Seventh Circuit has ruled that law enforcement officers may perform manual body cavity searches based on “reasonable suspicion” alone. On the other hand, four federal circuits maintain that a body cavity search may only be done with a warrant, probable cause, or a problem so demanding that a warrant cannot be obtained.
The nation’s courts are divided on the sensitive topic of whether the Constitution’s Fourth Amendment mandates anything more than reasonable suspicion to physically penetrate a detainee’s body cavities.
Arguably, just because a person is in prison does not mean that they are not worthy of fundamental dignity. In addition, it appears that the same results can be achieved in a less intrusive and degrading manner using medical imaging technology. The Supreme Court will continue to hear cases on this issue, no doubt.
Do I Need a Lawyer for Help with Visual or Manual Body Cavity Searches?
Body cavity searches are questionable techniques that should be considered carefully. You may want to consult a criminal defense lawyer if you need help with a body cavity search issue or if you believe that your rights have been violated by law enforcement officials.
LegalMatch.com can connect you to a qualified lawyer who can help you understand your rights under state and federal law and represent you in court if a lawsuit is required.
