The difference between criminal and civil searches can be dramatic. Consider these two cases from Arizona and the Eighth Circuit decided Wednesday and Thursday:
The defendant had been arrested and was subjected to a strip search, incidentally by a code enforcement officer who had not been trained in doing strip searches, but was the only female around to do it. The trial court suppressed removal of a bag partially protuding from defendant’s anus because no warrant was sought because precedent required a warrant for any search that was so intrusive. State v. Barnes, 215 Ariz. 279, 159 P.3d 589 (2007):
P8 The state primarily contends that Armstrong did not intrude beyond the surface of Barnes’s body because “no piercing, probing, or even touching of the skin was required to seize” the bag. See State v. Magness, 115 Ariz. 317, 321, 565 P.2d 194, 198 (App. 1977) (visual search of area “around the rectum” permissible in absence of a warrant as part of search incident to arrest.). To address this contention, we must determine whether an officer transforms a lawful warrantless strip search into an intrusion beyond the body’s surface requiring a warrant when he or she handles an object protruding from, and extending into, an arrestee’s anal cavity. Although the state correctly observes that its officer neither inserted any object, digit, or instrumentality into Barnes, the officer’s manipulation and removal of the protruding portion of the bag necessarily exerted force on the portion of the bag extending into Barnes’s rectum. And the officer’s actions had the effect of moving the portions of the bag within Barnes’s rectum as the bag emerged. Once an officer’s actions have the effect of exerting force within an arrestee’s body, we decline to draw constitutional distinctions based on the mechanism by which the officer does so. The invasion of privacy is the same regardless of the mechanism used. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449, 1449 n.11 (9th Cir. 1991) (finding “Schmerber governs all searches that invade the interior of the body” and is not limited to “cases in which skin is pierced or entry is forced”). Moreover, the Court’s opinion in Schmerber instructs that the intrusiveness of a body search must be assessed in part by the potential risks of inflicting trauma or pain. 384 U.S. at 771- 72, 86 S. Ct. at 1836. Although nothing in the record suggests that Barnes actually suffered any trauma or pain, we have little doubt that an officer’s removal of items extending into a suspect’s “innards” generally poses such potential risks, the relevant consideration here.
P9 We are not the first court to conclude that an officer must secure a warrant to remove items partially protruding from an arrestee’s rectum. In Hughes v. Commonwealth, 524 S.E.2d 155, 159, 162 (Va. Ct. App. 2000), quoting Commonwealth v. Gilmore, 498 S.E.2d 464, 469 (Va. Ct. App. 1998), the court found that an officer’s removal of a plastic bag protruding halfway from a defendant’s rectum constituted an “intrusive physical body cavity search” requiring a warrant in the absence of both exigent circumstances and “‘a clear indication that evidence is located within a suspect’s body.'” And, in People v. More, 764 N.E.2d 967, 969 (N.Y. 2002), quoting People v. Luna, 535 N.E.2d 1305, 1308 (N.Y. 1989), New York’s highest court characterized physical body cavity searches, such as the seizure of a bag partially protruding from a suspect’s rectum, as “‘invasive'” and “‘degrading'” and found such searches “at least as intrusive” as the blood test procedures addressed in Schmerber. Accordingly, the court held the evidence found in the suspect’s rectum should have been suppressed because officers had neither complied with the warrant requirement set forth in Schmerber nor articulated exigent circumstances sufficient to obviate the need for a warrant. More, 764 N.E.2d at 969-70.
The plaintiff was strip searched in a motel room after his arrest, where he was handcuffed and had his pants pulled down by the defendant officer, was bent over, and a tissue was removed from his buttocks. After a four day trial, the jury awarded $35,000 in “nominal” damages which the district court reduced to $1. The parties appealed and cross-appealed, and the Eighth Circuit granted qualified immunity to the officer. Richmond v. City of Brooklyn Ctr., 490 F.3d 1002 (8th Cir. 2007):
We hold that a reasonable officer in the defendant’s position would not have understood that the strip search of [*14] Richmond in his motel room would violate his constitutional rights. The law in April 2001 was clear that strip searches should be conducted in an area as removed from public view as possible without compromising legitimate security concerns. See Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir. 1989) (holding that visual body cavity searches of prison inmates conducted within view of four to six other inmates did not violate the Fourth Amendment because any measures taken to increase privacy would implicate legitimate prison security concerns); see also Hill v. Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984) (finding the manner of a strip search of an arrestee unreasonable where it was conducted in a police station lobby area with “ten to twelve people … milling about”). The law was also clear that strip searches should be conducted by officials of the same sex as the individual to be searched. E.g., Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001); see also Justice v. Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992). Finally, the law was clear that strip searches should be performed in a hygienic fashion and not in a degrading, humiliating or abusive fashion. Cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (holding that a plaintiff stated a valid Fourth Amendment search-and-seizure claim where he alleged that he was subjected to sexual comments about his anatomy and rubbing of his buttocks with a nightstick during strip searches); see also Bell, 441 U.S. at 560 (stating that it is unreasonable to conduct a strip search “in an abusive fashion”); Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986) (holding body-cavity searches unreasonable where, inter alia, the searching officers wore a single pair of gloves while searching multiple inmates), overruled on other grounds by Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir. 1988), abrogated by Johnson v. Jones, 515 U.S. 304, 132 L. Ed. 2d 238 (1995) (abrogating Unwin).
In this case, the standards for privacy and hygiene clearly were met because only the officers and the arrestee were present for the strip search, the motel room was isolated from public view, the officers were the same sex as Richmond, and Officer Bruce wore a sanitary latex glove. Richmond claims that the search was performed in a degrading, humiliating or abusive manner because he was restrained during the search, he was not allowed to lower his own pants and boxer shorts, and Officer Flesland forcibly bent him over a table for the search. First, while the special verdict form did not ask the jury to make a specific finding as to whether Officer Flesland forcibly bent Richmond over a table, the jury did find specifically that Officer Flesland’s conduct during the search was reasonable. This indicates strongly that when the jury rejected Richmond’s testimony that the search included a body cavity search, it also rejected his concurrent testimony about Officer Flesland forcibly bending him over a table during the search. Therefore, viewing the evidence in the light most favorable to the verdict, we reject this aspect of Richmond’s allegation.
