Why Warrantless Roadside Cavity Searches Won’t Go Away
In the October 16, 2019 issue of the Washington Post, an article features the harrowing story of a woman subjected to a public warrantless vaginal cavity search in San Antonio
[The officer] instructed Simms to “spread your legs,” according to a transcript of dash-cam footage included in the lawsuit. [The officer] added, “I’m going to ask you, do you have anything down here before I reach down here?”
[The victim] said she didn’t and expressed alarm about [the officer’s] intent to examine her vagina, noting that she was on her period. Armed with a flashlight, the officer said she only planned to look, not touch, and “pulled open [the victim’s] pants and underwear,” the complaint said. Five other officers, all of whom were men, were nearby, the suit alleged.
That’s when [the officer] noticed the tampon string and pulled, according to the suit.
This is the part where you, the reader, is shocked that such a complete and utter violation of a human being can happen in the United States. I’m here to disabuse you of that notion.
With very little effort, a laundry list of similar stories can be found:
- In November 2018, Rock County, Minnesota deputies attempted to perform a public vaginal search — in 9 degree weather—on the passenger of a vehicle pulled over for a dangling air freshener.
- A woman pulled over in Harris County, Texas, was handcuffed and vaginally searched in a convenience store parking lot for 11 minutes in June 2015. This incident also involved the removal of a tampon.
- In May 2014, a woman, along with two men, was subjected to strip searches after being pulled over on a Chicago street. While undressing on the side of the road, the woman was subjected to jokes about her body by male police officers and was forced to remove her tampon.
- A Coral Springs woman was stopped in October 2013 for having tinted windows and had a body cavity search performed on the side of the road, injuring her wrist in the process.
- In 2013, a woman and her niece were subjected to roadside vaginal and rectal searches in Dallas, after being pulled over for throwing cigarette butts out of their window.
- Also in 2013, two women were victimized with both vaginal and anal cavity searches outside Houston after being pulled over for speeding. The office performing the search used the same set of gloves on both women.
- In 2013, a vehicle was pulled over for speeding in Brazoria County, Texas. After discovering marijuana in the female passenger’s purse, she was subjected to a manual body cavity search.
- A Florida woman was pulled over for a rolling stop in in August 2010 by Citrus County Sheriffs, who subjected her to a strip search at gunpoint, forcibly removing her tampon.
- In 2008, a Yuba County, California woman was given a manual vaginal search on the side of a Marysville road, after being pulled over for not wearing a seatbelt.
Unfortunately, this list is limited to only a few recent cases that involve seemingly unreasonable warrantless roadside cavity searches of women. Cases involving men are even more numerous. Sadly, the courts have provided little guidance on this issue and the Supreme Court has yet to issue a ruling on the subject.
The closest thing we have to precedent is decades old. In Bell v. Wolfish (1979), the Supreme Court established a framework for determining the reasonability of an “intrusive search of genitalia” in an incarceral, or jail/prison, setting. According to this framework, the following things must be considered: 1) the scope of the search, 2) how the search was conducted, 3) the justification of the search, and 4) the location in which the search took place. Using these considerations, if the public interests outweigh the privacy of the searched individual, then the search is allowed.
There are other relevant cases. In Schmerber v. California (1966), the Supreme Court found that warrantless blood draws do not violate the Fourth Amendment as long as there is probable cause and delay would cause destruction of the evidence. The very concept of “probable cause” is grounded in protection of privacy and dignity, as Schmerber states:
The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.
The weighing of personal privacy and dignity against the needs of the State has therefore been the main consideration by other courts in these types of cases. For example, the U.S. Court of Appeals for the Fourth Circuit in Logan v. Shealy (1981) held that searches in public locations are:
constitutionally constrained by due process requirements of reasonableness under the circumstances.
Courts have relied upon these two rulings when deciding the constitutionality of strip and cavity searches of people.
In Blackburn v. Snow (1985), the U.S. Court of Appeals for the First Circuit defined three different kinds of searches of the human body:
A strip search, though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject’s body cavities. A visual body cavity search extends to a visual inspection of the anal and genital areas. A manual body cavity search includes some degree of touching or probing of body cavities.
While not ruling in favor of personal privacy, this case does at least define particular types of body searches. The three different types of searches include different levels of invasiveness and, therefore, need different types of rules to regulate them.
United States v. Hernandez (1985) addresses when a body cavity search may be conducted. The Supreme Court found that such a search search may only be conducted if there is a “particularized suspicion” that evidence is located in the body cavity. Adding nuance to this is Cf. Polk v. Montgomery Co., Md. (1989). Here, the Fourth Circuit Court of Appeals held that the public or private nature of a strip search is essential in determining whether it is reasonable.
Another aspect to consider is whether the officer had a warrant before they conducted the search. The Supreme Court, in Illinois v. Rodriguez (1990), found that a warrantless search of someone’s body as part of an arrest is an exception to the Fourth Amendment’s requirement of a warrant, in order to preserve evidence or protect the safety of the officer. However, it does not say that the search may take place in a public location.
Three recent cases hold that warrantless strip and body cavity searches should be held in a private area unless there are extenuating circumstances. In Amaechi v. West (2001), the Fourth Circuit Court of Appeals found that there is no justification for a cavity search on a public street when there is no reasonable suspicion that evidence needs to be preserved or for the safety of the officer. In a related case, McGee v State (2003), the Court of Criminal Appeals of Texas held that a warrantless visual body cavity search of a suspect was permitted because it was conducted in a nearby secluded area. Again, in Paulino v. State (2007), the Maryland Court of Appeals found that there are limits to the manner and place of a search if there are no exigent circumstances justifying an immediate search.
Instead of merely requiring the search to be conducted in private, in People v. Hall (2008), the New York Court of Appeals held that a warrant must be obtained in order to remove an object observed during a visual body cavity search unless exigent circumstances exist. Requiring a warrant would be a fairly significant barrier to the conduct of roadside cavity searches.
In maybe the only case that specifically addresses the issues we’re discussing in this article, The Maryland Court of Special Appeals held in Shawna Lynn Faith v. State of Maryland (2019) that a genital inspection of a person on the shoulder of an interstate highway violated the Fourth Amendment. Unfortunately, this precedent is binding only on Maryland state courts and is of limited importance to other courts.
To sum up it all up, courts have found that the scope, method, justification and location of strip and cavity searches all play a role in determining their constitutionality. They also found that personal privacy and dignity play a role. They held that preservation of evidence and safety of arresting officers are the primary justification for warrantless strip/body cavity searches. And they ruled that such searches must be held in private unless exigent conditions exist. Despite the writing on the wall, law enforcement continues to ignore the personal privacy and dignity of these women being subjected to warrantless body cavity searches on the side of our roads and highways.
A few state legislatures have stepped up and provided some protection against warrantless roadside body cavity searches, notably among them is Texas, Ohio and California. Roadside searches now require a search warrant while unwarranted searches to preserve evidence must take place in a private setting. Unsurprisingly, the Texas law has no penalties for law enforcement personnel that violate it. Additionally, while many law enforcement agencies have guidelines on strip and body cavity searches, they are typically exceedingly permissive. Officers are rarely held accountable for conducting body searches outside legal and procedural parameters.
Even in the upsetting examples noted above, which even their own departments are reticent to defend, law enforcement officers are protected by qualified immunity. Qualified immunity protects police officers from criminal charges or civil lawsuits in all but a few extreme circumstances. When it comes to internal investigations, the “blue wall of silence” hampers the efforts of investigators. And police unions exert such political influence that it deters local governments from taking action. If there are no consequences, law enforcement officers have little incentive to change their behavior.
But why do they do it? A common factor in many cases of police abuse is that an officer feels disrespected by the victim. Too often, police have an incredibly low tolerance for people who question the legality of a traffic stop, “talk back” or they perceive as being uncooperative. These public searches of genitalia can be a form of extrajudicial punishment imposed as a consequence for annoying a police officer.
The Sandra Bland incident in Texas is a high-profile example of an officer feeling disrespected and abusing his authority. Bland was pulled over for a minor traffic violation and expressed annoyance at the traffic stop. The officer, feeling disrespected, quickly escalated the situation. Bland (correctly) asserted her rights and was taken into custody for assaulting a police officer; a charge that the dashcam footage did not support. Bland annoyed a Texas state trooper by insisting upon her rights and he unjustly arrested her, leading to her death in jail.
Bland’s family later reached a $1.9 million settlement with Waller County and the Texas Department of Public Safety. The arresting officer was charged with perjury after a public outcry, but those charges were dropped in exchange for his agreement to not pursue any law enforcement employment in the future. Most officers who lose their jobs for this kind of misconduct fare much better, however, regaining their jobs through arbitration or finding positions in different police departments.
The next time you read about one of these excessively aggressive warrantless roadside cavity searches, you’ll know why they continue to occur. Until the courts rule decisively against them, until the law prohibits them, until law enforcement agencies forbid them and until police are punished for conducting them, these flagrant abuses of authority will continue unabated.
