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The Unreasonableness of Cavity Searches

The Fourth Amendment prohibits unreasonable searches and seizures. But what exactly is considered “reasonable?” Well, criminal defense lawyers all over this country have been litigating this issue for over a century, and we still have yet to settle on a comprehensive definition of “reasonableness” in the Constitutonal context. What we can agree on, however, is that protection under the Fourth Amendment is strongest when it comes to searching homes. Indeed, searches of homes is almost always impermissible without a valid warrant. Car searches, on the other hand, are almost always conducted on the basis of probable cause and generally do not require a warrant. While these types of searches are definitely intrusive, the intrusiveness of these types of searches pale in comparison to a body or cavity search. As I’ve discussed in previous articles concerning stop and frisk searches, pat downs merely require “reasonable suspicion” that a person was engaging, or planned to engage, in criminal activity. In this article, I discuss the unreasonable nature of cavity searches.

Unreasonable Search and Seizure Issues

Stop and Frisk Laws

What is Considered a “Search”?

Vehicle Searches

Suppressing Evidence Under the Exclusionary Rule

Never Consent to Searches

Since I was a teenager, I found the entire concept of search and seizure laws fascinating. This is because whether it be a traffic stopDUI checkpoints, home searches, or car searches, the Fourth Amendment is supposed to protect us from unreasonable intrusions into our privacy by law enforcement. At the end of the day, without at least an articulable, reasonable suspicion, law enforcement cannot stop us and conduct a search which goes beyond a mere pat down. If law enforcement wants to conduct a more extensive search, they need probable cause. Notwithstanding these very well settled Constitutional rights and protections, law enforcement is constantly undermining these rights and protections to the point that they now seem to only exist in form, but not substance.

The reason why I see the Fourth Amendment being eroded into a species of protections which exist in form, but not substance, is the ever-increasing regularity of unjustified cavity searches being ignored by the courts. Simply put, reaching around inside of someone’s anus or vagina to find contraband is always unreasonable. Sexual assault and battery should not be a component of a lawful search. The means simply do not justify the ends – which is purportedly to prevent and/or crack down on drug possession. Imagine law enforcement putting their fingers inside your anus for the purpose of finding a gram of weed? That’s just pure absurdity. When the means don’t justify the ends, a change is required. And a perfect example of where the means don’t justify the ends can be seen in the video below.

I have no doubt that the Framers of the Declaration of Independence would be rolling in their grave if they saw the video above. As a criminal defense attorney, my hope is that the Supreme Court will eventually take a closer look at the reasonableness of cavity searches and make some drastic changes to the current laws because these types of unreasonable searches are happening way too often.

While the inmates who go through processing in county jail or state prisons can (and should) be subjected to these types of cavity searches, it is simply untenable to allow law abiding citizens to be subjected to these types of intrusions merely because a cop smells weed in a person’s car after pulling them over. If police are not held accountable, these violations of civil rights will continue. And part of the reason why I am so passionate about my work as a Fairfax Civil Rights Attorneyis because nothing makes me happier than when I am able to hold a rouge police officer accountable when they act in a manner violate citizens’ civil rights. The root of the problem lies in the way cops are trained – which is that they are encouraged to engage in this sort of intrusive, unconstitutional behavior. Most of the time, when people are subjected to cavity searches, the police find nothing. The reason why is because most people – criminals included – are not inclined to shove foreign objects into their anus or vagina. Given the rarity of a person attempting to hide contraband inside one of their orifices, it is my position that cavity searches of people who not in custody should be eliminated. In order to effect such change, there needs to be some manner of form in police training and a greater standard of accountability of law enforcement.

By: Randall Sousa