Body Search

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BODY SEARCH

The term "body search" is limited to strip searches (forcing a suspect to disrobe to enable an officer to observe the naked body), body cavity searches (inserting a finger or instrument into the rectum or vagina), and other penetrations of the body, such as extracting blood. Body searches do not violate the right against self-incrimination, because, as held in schmerber v. california (1966), they do not result in testimonial compulsion. Nor do they violate due process of law unless conducted in a shocking manner. The fourth amendment is the principal restriction on body searches.

The Supreme Court has, in recent years, balanced competing interests in determining whether a search violates the Fourth Amendment. This approach, which usually results in upholding the search, has been used by courts with devastating effect in situations such as border searches and prison searches; in the context of both, body searches may occur.

A person who enters the United States may be searched without a search warrant, without probable cause, and without even reasonable suspicion. This rule applies to a search of a suspect's outer garments and luggage or other containers. If a border search is more intrusive, it may be governed by more stringent standards. The Supreme Court has never reviewed a strip search case that arose at the border. Although lower courts require neither a warrant nor probable cause for such a search, they do require some justification, often expressed as "real suspicion." This standard approximates the "reasonable suspicion" standard that terry v. ohio (1968) used to justify a stop-and-frisk. Although a strip search is far more intrusive than a stop-and-frisk, its occurrence at the border is said to justify the Terry standard.

The Supreme Court has never reviewed a body cavity search case that arose at the border. Lower courts do not require a warrant. Nor do they require probable cause, most choosing a "reasonable suspicion" standard. These are dubious positions. Given the lack of exigent circumstances and the indignity of an exploration of body cavities, it would be appropriate to require both a warrant and probable cause. Even if constitutional at its inception, a body cavity search might be unreasonable and therefore unconstitutional in its execution. Relevant factors include the place in which the examination occurs, the person making the examination, and the manner in which the examination is made.

The Supreme Court held in Hudson v. Palmer that, as a result of the needs of prison security and discipline, "society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell." This means that a prison cell may be searched without a warrant, probable cause, or even reasonable suspicion. It probably also means that prisoners' outer garments may be searched routinely. Hudson does not directly deal with strip searches or body cavity searches.

Five years before Hudson, in Bell v. Wolfish (1979), a highly debatable 5–4 decision, the Supreme Court relied on the interest in prison security to uphold the strip-searching of inmates of a pretrial detention facility whenever they had a contact visit with an outsider. As part of the search, the prisoner had to expose body cavities to visual inspection. The Court required neither probable cause nor reasonable suspicion. Bell does not explicitly authorize routine strip searches, however. Nor does it deal with the digital or instrumental exploration of body cavities.

Lower courts have disagreed about the scope of Hudson and Bell. Most courts wisely have not interpreted these cases to withdraw all Fourth Amendment protection from prison inmates. Although they do not require a warrant or probable cause, these lower courts authorize strip searches and body cavity searches only on reasonable suspicion or after the occurrence of some event such as a contact visit or the leaving and reentering of the prison. These lower courts also recognize that even if a strip search or body cavity search is justified at its inception, its execution may offend the Fourth Amendment. For example, in Bonitz v. Fair (1986) the United States Court of Appeals for the Second Circuit held that body cavity searches of female prisoners were unconstitutional when conducted by nonmedical personnel in an unhygienic manner and in the view of male officers.

Courts apply higher standards when the person searched is a prison employee or visitor.

Body searches occur in settings other than the border and prisons, and the Supreme Court has decided several relevant cases. In Schmerber, the Court held that the Fourth Amendment did not require a police officer to obtain a warrant before ordering a doctor to withdraw blood from an apparently drunk driver. The alcoholic content of blood is evanescent and might disappear or change in the time it would take to obtain a warrant. If evidence is not evanescent, however, a warrant might well be required unless the officer is entitled to act routinely, as in finger-printing all arrestees, for example. Even though it did not require a warrant, Schmerber did require a "clear indication" that the driver's blood would disclose intoxication. The Court probably meant to require more than probable cause to justify the subcutaneous intrusion, but in subsequent cases it suggested that "clear indication" means no more than probable cause and may mean less.

In Winston v. Lee (1985) the Court prohibited the surgical removal of a bullet from a robbery suspect's body. The removal had been ordered by a state court on probable cause to believe that the bullet, fired from the victim's gun, would identify the suspect as the robber. The Supreme Court balanced the state's need for the evidence against the intrusion of surgery under a general anesthetic. It found that the state already had substantial identification evidence and that the operation posed significant risks. Winston is one of the rare cases in which the Court has used the balancing approach to increase, rather than lower, the protections of the Fourth Amendment.

Lawrence Herman
(1992)