Body Search

Body Cavity Search-The visual or medical examination of the anal or vaginal opening.

Click on the case titles to link to the full case decision.

Breithaupt v. Abram, 352 U.S. 432 (1957)-A police officer had a physician at a hospital draw blood from the unconscious driver of a vehicle that caused a fatality accident. The Court held that the drawing of blood did not “shock the conscience” nor did the method offend a “sense of justice.” The warrantless drawing of blood did not violate the defendant’s due process.

Schmerber v.California, 384 U.S. 757 (1966)-The court ruled that a state, over the defendant's objections, may draw blood for the purpose of determining intoxication in a drunken driving case without a warrant. The drawing of blood is a minor intrusion with minimal risk and pain. The court further stated:

Cupp v. Murphy, 412 US 291 (1973)-If there is truly an imminent destruction of evidence, a warrantless search is allowable. In this case, Cupp, who was suspected of murder, voluntarily came to the police station for questioning. The police had developed information that Cupp scratched the victim. They noticed that he had blood on his finger. When the police asked Cupp to submit to a fingernail scraping, he put his hands in his pockets and appeared to be trying to destroy the evidence. The police forced Cupp to submit to a fingernail scraping.

US v. Dionisio, 410 US 1 (1973)-Compelled voice exemplars do not violate the privilege against self-incrimination.

US v. Bridges, 499 F.2d 179 (7th Cir. 1974)-The warrantless swabbing of the hands of a suspect in a bombing did not violate the Fourth Amendment.

Bell v. Wolfish, 441 U.S. 520 (1979)-"...assuming that pretrial detainees retain some Fourth Amendment rights upon commitment to a corrections facility, the body-cavity searches do not violate that Amendment. Balancing the significant and legitimate security interests of the institution against the inmates' privacy interests, such searches can be conducted on less than probable cause and are not unreasonable."

US v. Montoya De Hernandez, 473 U. S. 531 (1985)-The case involves alimentary canal smuggling at the border. When a woman was contacted and questioned after arriving on an international flight, the agents developed reasonable suspicion she was smuggling drugs in a body cavity. They gave her a choice of an x-ray or bowl movement. She would not cooperate on either one. 16 hrs later the agents got a court order. She was examined and 88 cocaine filled balloons were found during a rectal exam.

Held: The detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal; here, the facts, and their rational inferences, known to the customs officials clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler. The "reasonable suspicion" standard effects a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause. It thus fits well into situations involving alimentary canal smuggling at the border: this type of smuggling gives no external signs, and inspectors will rarely possess probable cause to arrest or search, yet governmental interests in stopping smuggling at the border are high.

Under the circumstances, respondent's detention, while long, uncomfortable, and humiliating, was not unreasonably long. Alimentary canal smuggling cannot be detected in the amount of time in which other illegal activity may be investigated through brief stops. When respondent refused an x-ray as an alternative to simply awaiting her bowel movement, the customs inspectors were left with only two practical alternatives: detain her for such time as necessary to confirm their suspicions or turn her loose into the interior of the country carrying the reasonably suspected contraband drugs. Moreover, both the length of respondent's detention and its discomfort resulted solely from the method that she chose to smuggle illicit drugs into this country. And in the presence of an articulable suspicion of alimentary canal smuggling, the customs officials were not required by the Fourth Amendment to pass respondent and her cocaine-filled balloons into the interior.

Winston v. Lee, 470 US 753 (1985)-The court has to weigh the privacy and security interests of the defendant against the society's interest in prosecuting criminals. In this case, the defendant was shot while committing an armed robbery. The bullet lodged in his chest. The police wanted the defendant to be ordered into surgery so the bullet could be removed for evidence. The USSC ruled that the severity of the intrusion in this case was unreasonable. The state had substantial additional evidence. The defendant would also have to go under general anesthetic, and may suffer nerve damage and other complications from surgery.

US v. Reid, 929 F.2d 990 (4th Cir. 1991)-Reid was arrested for driving while intoxicated. The officer requested she take a breathalyzer test. She could refuse, but she would be charged with refusal. Reid appealed the breath test as an unlawful warrantless search. The Court held: “The crime of DWI presents a unique situation in that the most reliable evidence of whether a person is driving while "legally drunk" is contained in that person's body. 36 C.F.R. Sec. 4.23 provides that a person commits a crime if she drives while she has a breath alcohol content of .10 or more. The best means of obtaining evidence of the breath alcohol content, and the least intrusive way of testing, is the breathalyzer test. Given that the defendants were legally arrested at the time of the search, these limited intrusions to prevent the destruction of evidence were not unreasonable, as they were searches incident to lawful arrests.”

Pace v. City of Des Moines, 201 F.3d 1050 (8th Cir. 2000)-The police officer had reasonable suspicion that the defendant was involved in a knife attack on a woman. The officer went to the defendant’s home/business and entered the business entrance. He ordered the defendant to remove his shirt so the officer can photograph the defendant’s tattoo.

The Court held:

There is a legally relevant distinction between the daily revelations of one's voice, face, and fingerprints that are an inevitable part of living in an interactive world, on the one hand, and the occasional use of a tank top on the other. Although it is perhaps possible to imagine a person who so consistently bares himself or herself from the waist up that all reasonable expectations of privacy for that area are lost, wearing a tank top "two or three" times (or even "numerous" times) is surely not enough to produce so drastic a result. Were we to find otherwise, regular visitors to public beaches and swimming pools would be surprised to discover that their visits have cost them the lasting loss of a reasonable expectation of privacy over very substantial portions of their bodies. We do not believe that any reasonable interpretation of Dionisio and its progeny could lead to such a conclusion.

 

US v. Harris, 313 F.3d 1228 (10th Cir. 2002)-The odor of burnt marijuana coming from a person is probable cause to stop and search the person.

Florence v. Burlington, ___ US No. 10–945 (2012)-The court held that a prisoner in jail on a minor offense can be strip searched if the person is going into general population.

Maryland v. King, No. 12–207 (2013)-Held: When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Birchfield v. North Dakota, No. 14-1468 (SCOTUS 2016)-North Dakota passed a law that made it an additional crime to refuse to submit to a breath or blood test for driving drunk. Birchfield refused to submit to a blood draw. He was charged for that offense. He appealed.

The Supreme Court held: The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.