• Body Cavity Searches of Jail Inmates

Intrusive body cavity searches of jail inmates may be unlawful, depending upon the availability of a less intrusive means of determining whether the inmate is hiding contraband in her body.

In May, 2017, plaintiff Sharon Lynn Brown was arrested for petty theft (shoplifting) and taken to jail in Polk County, Wisconsin.  The day after her arrest, two inmates ratted her off, telling jail staff that plaintiff was hiding drugs in her body.  The Polk County jail had a written policy at the time permitting officials to have medical personnel perform “an inspection and penetration of the anal or vaginal cavity . . . by means of an instrument, apparatus, or object, or in any other manner” whenever they 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.  Based upon this information, and without seeking any corroboration or conducting any further investigation, correctional officer Steven Hilleshiem sought permission from the jail administrator, Wes Revels, to take plaintiff to a doctor for a body cavity search.  With Revels’ approval, plaintiff was therefore transported to a local hospital where a male doctor performed an ultrasound.  This procedure, however, failed to reveal any foreign objects. So the doctor took it a step further and inserted a speculum into her vagina, spread open the vaginal walls, and shined his headlamp inside. He did the same to her anus. Still not finding any contraband, plaintiff was simply returned to jail.  Plaintiff later sued in federal court, alleging a violation of her Fourth Amendment right to be free from unreasonable searches, arguing that such a search requires full probable cause and a search warrant.  In her lawsuit, plaintiff alleged that after the doctor removed the speculum from her anus, she “immediately started crying. I couldn’t stop. I cried myself to sleep. I cried all the way back to the jail. I cried the whole time I was getting dressed.” When she returned to the jail, she “asked to stay in the holding cell because [she] couldn’t quit crying.”  She further alleged that she suffered continued anxiety and depression, interfering with her sleep at night, and experiencing flashbacks.  She testified that he feared leaving her home because she was terrified that the police would pull her over and send her back to jail.  Nearly two years later, plaintiff was still afraid of being alone in a room with a man; even her own brother.  The federal district (trial) court granted the civil defendants’ motion for summary judgment, dismissing the lawsuit; a decision that was upheld by the Seventh Circuit Court of Appeal.  In so holding the Seventh Circuit also ruled that such a “penetrative cavity search of a pretrial detainee requires only (a) reasonable suspicion,” specifically ruling that full probable cause was not required.  (See Brown v. Polk County (7th Cir. July 13, 2020) 965 F.3rd 534.)  Plaintiff appealed.

The United States Supreme Court denied certiorari, declining to decide the issue.  However, Justice Sonia Sotomayor wrote an opinion, concurring in the denial of certiorari, that is instructive.  In her concurring opinion, Justice Sotomayor first notes that her concurrence is not because she agrees with either the Seventh Circuit or the trial court’s rulings, but rather that “further consideration of the substantive and procedural ramifications of the problem by other courts will enable us to deal with the issue more wisely at a later date.”  (She did not identify what specific future cases, if any, she might be referring to.)  First, she specifically wrote that she was not deciding whether the civil defendants had sufficient information to establish a reasonable suspicion, whether more (e.g., “probable cause”) was needed, or whether a warrant might have been required, noting that these issues depend upon the specific circumstances of any particular case.  What Justice Sotomayor did hold is that the Seventh Circuit errored in failing to consider whether something less intrusive than “prying open (plaintiff’s) vagina and anus” would have been sufficient to ensure jail security, and that this failure alone was sufficient to reverse the trial court’s dismissal of the lawsuit.  Per Justice Sotomayor, whether or not the intrusive measures employed in this case were lawful “must . . . ‘be judged in light of the availability of . . . less invasive alternative[s].’” (Citing Birchfield v. North Dakota (2016) 579 U. S. ___, ___ (136 S.Ct. 2160, at pp. 2165 & 2184.) “When such (a less intrusive) option exists, the State must offer a ‘satisfactory justification for demanding the more intrusive alternative.’”  (Ibid. See also Florida v. Royer (1983) 460 U. S. 491, 500; “[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion’).”  Both the trial court and the Seventh Circuit failed to consider any less intrusive means of determining whether plaintiff was in fact hiding contraband in her body.  Some such possible alternatives include, but are not limited to, a simple visual search, multiple visual searches over time, or an X-ray or transabdominal ultrasound (as was in fact done here, and which produced negative results). They could have also possibly isolated the plaintiff while they investigated further in order to obtain stronger evidence (e.g., probable cause).  Or they could have merely awaited for a monitored bowel movement.  The potential effectiveness of each, in this case, was not discussed, the point being that these are issues that should have been explored by both the trial court and the Seventh Circuit, but were not.  Instead, the State sought “a categorical exception to the Fourth Amendment’s warrant requirement,” accepting the word of other inmates alone and unilaterally determining that this was enough to establish a “reasonable suspicion,” and that this reasonable suspicion (instead of probable cause) was sufficient to allow for the warrantless intrusive measures taken here.  Justice Sotomayor hinted that all of this is of questionable legality, particularly when you consider that persons booked for minor misdemeanors are to fall under the same rules as those in custody for more serious offenses.  Per Justice Sotomayor, these are issues that need to be considered in future cases.

Other than to say that the lower courts are to be faulted for failing to take into consideration less intrusive measures, Justice Sotomayor does not attempt to answer, let alone analyze, any of the other potential issues she raises, telling us only that they are to be considered in some future, more appropriate case.  Both California and the Ninth Circuit have already attempted to answer some of these questions.  For instance, it has been held that the constitutionality of a visual inspection of a prison inmate’s unclothed body, including body cavities, depends upon a balancing of (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating the search, and (4) the place in which it is conducted.  (People v. Collins (2004) 115 Cal.App.4th 137, 152-153.)  The Collins Court also noted that the more intrusive, “physical body cavity search” requires judicial authorization (i.e., a search warrant) and the use of properly trained medical personnel.  (Id., at p. 143; see also Bouse v. Bussey (9th Cir. 1977) 573 F.2nd 548, 550; and United States v. Fowlkes (9th Cir. 2015) 804 F.3rd 954, 960-968.) Although Collins is a prison case, the same arguably holds true for general population county jail inmates.  Also, the California Code of Regulations, Title 15, § 3287(b), allows for a visual search of an inmate, clothed or unclothed, whenever there is a “substantial reason to believe the inmate may have unauthorized or dangerous items concealed on his or her person.”  (Italics added)  Judicial authorization (i.e., a search warrant), and the use of “medical personnel in a medical setting,” is only required in the case of a “physical (as opposed to a non-contact visual) body cavity search.”  And lastly, California’s Pen. Code §§ 4030 & 4031 place all sorts of restrictions on body cavity searches, including restricting such searches to inmates that are in the general jail population. So we’re not without some guidance in California.  But it will be interesting to see what the U.S. Supreme Court has to say on these issues when, or if, the unidentified future cases referred to by Justice Sotomayor are decided, discussing this important topic.