Although frequently the subject of jokes in fictional media, a body cavity search is actually a very specific tool that law enforcement uses to find contraband and other illegal items. This can include searching the oral, rectal, and anal cavities, as well as the digestive tract, sexual organs, ears, and nostrils.
These searches are not comfortable experiences and should only be performed by law enforcement personnel with the proper training and only under the proper legal circumstances. Here is a short primer to the situations where a body cavity search might take place, and the Constitutional and legal guidelines that are in place to protect a person’s rights under these circumstances.
What Circumstances Require a Body Cavity Search?
The incredibly intrusive nature of these searches means that they are only used in certain circumstances, most commonly at border crossings and airports to stop drug smugglers from bringing quantities of drugs into the United States. For example, a common international trafficking tactic is for someone (usually called a mule) to wrap the drugs in plastic or rubber and either insert or ingest them, with the goal of passing and retrieving them later on.
While not as common, body cavity searches may also be performed for a domestic criminal situation by local, state, or federal officials that have jurisdiction over the investigation. The most common items that they are searching for include illegal drugs and drug paraphernalia, weapons, money, or any other applicable illegal items. There are a few circumstances where a body cavity search may turn into an emergency surgery if the person has dangerous substances in their body and cannot get them out by less intrusive means.
When Can Law Enforcement Force a Body Cavity Search?
There are three situations where law enforcement officials can conduct a body cavity search.
- Search Warrant. Like other searches, a body cavity search falls under the Constitutional purview of the Fourth Amendment, which prohibits “unreasonable search and seizures.” Expounding upon and clarifying exactly what is reasonable and what isn’t has been the subject of many Supreme Court cases over the years. Whether or not a search warrant (body cavity or not) is legal depends on proving that there is probable cause.
The investigators seeking the search warrant must provide facts indicating to a judge that the search is reasonable, and what the state’s interest is in that search. Because body cavity searches so violate a citizen’s expectation of privacy, judges will often only approve them if there are no other less invasive measures to achieve the same goal. Even valid, judge-signed warrants have been thrown out under appeal under this rule.
- Border/Ports of Entry. When a person crosses into the United States via border crossing or port of entry like an airport, no search warrant is necessary to make a body cavity search legal. The burden of proof to uphold the legality of these searches is much lower than situations requiring a search warrant. To put it simply, Transportation Security Administration (TSA) agents and border patrol agents need no warrant and no probable cause to conduct a body cavity search if they think one is necessary.
- Upon Incarceration. Like border control and TSA agents, corrections officers have a wider latitude than the average law enforcement professional to conduct body cavity searches. The Courts have asserted that the need to prevent weapons and other contraband from entering dangerous places like prisons requires a special exception to the normal warrant reasonableness standard.
When is a Body Cavity Search Unreasonable?
While every state has their own specific set of criminal laws regarding proper procedure for gathering evidence, when it comes to unreasonable body cavity searches, there are a few commonalities. The most common is if the factual circumstances did not necessitate one of these searches. This is determined on a case by case basis, of course.
Recently a New Mexico man filed a civil rights suit, stating an invasive body cavity search that included x-rays and a colonoscopy was unreasonable after being stopped for traffic violations. Particularly invasive searches and those that cause physical harm to the suspect are also illegal.
Categories that may require a little more explanation have to do with preserving the suspect’s dignity and privacy. If, for example, the search violated the suspect’s religious practices such as no members of the opposite sex being present, the search may be held invalid. If the search is held in a more public location, or more officers than are needed for the search are present, the suspect may seek to have that search invalidated as well. Any evidence acquired as a result of an illegal body cavity search may not be used in evidence at a criminal trial.
Do I Need an Attorney for Search and Seizure Issues?
A body cavity search can be a traumatizing and humiliating experience. If you were the subject of such a search and believe it was done illegally, it is important to contact a criminal defense attorney as soon as you can.
They can inform you of your rights and advocate on your behalf throughout any criminal proceedings, and help you file a civil rights lawsuit for monetary compensation if the circumstances warrant it.