Split Noted: What is the Fourth Amendment Standard for a Visual Body Cavity Search of an Arrestee?

Per People v. Hall, 2008 WL 762250, *5-*9 (N.Y. Mar. 25, 2008)

A police officer with twenty years narcotics experience observed Azim Hall take cash from a friend, go into a bodega, and, three minutes later, hand the friend two small white objects appearing to be crack. Mr. Hall was taken into custody. A search of his clothing revealed no contraband. He was then taken into a private detention room, asked to remove his clothing and bend over. A visual inspection revealed a string of plastic hanging out of his rectum. The officer thereupon pulled on the string and removed a plastic bag containing crack.

The New York Court of Appeals (their court of last resort) suppresses the drugs and, therefore, dismisses the indictment. It reasons that a manual body cavity search (the removal of the drugs) requires a warrant under the Supreme Court’s decision in Schmerber v. California (1966). In Schmerber, the Court held that a warrant would be needed for searches which intruded into the body, absent emergency circumstances.

In the course of so holding, the court noted that the circuits have split over whether a warrant is required for a visual body cavity search. The Supreme Court has expressly reserved judgment on this issue. A majority of the courts which have considered the issue have ruled that reasonable suspicion justifies such a search – CAs 2,5,7. On the other hand, the CA 9 and several Virginia state courts have held that a warrant is still required for such searches. The CA 8 also has precedent which seems to point in this direction. A quick google search also indicates that some states’ operating procedures require officers to seek warrants before performing such searches.