OH3: SW for strip search didn’t authorize anal penetration, and record supports there wasn’t any; “where [do] the buttocks end and … the anal cavity begin”

Officers obtained a warrant for a strip search to retrieve a baggie of suspected drugs hidden in defendant’s anus. The warrant did not authorize penetration, and the record supports that there was no penetration. The baggie protruded some, and it could be pulled out. The court compared the statute and cases on penetration in sex assault cases. State v. Huggins, 2014-Ohio-4999, 2014 Ohio App. LEXIS 4869 (3d Dist. November 10, 2014):

[*P26] While Huggins does not argue that the officers actually penetrated his anus to retrieve the baggie, he argues that their actions were still outside the scope of a strip search authorized by the warrant. “The kernel of the entire issue in this case comes down ultimately to where the Buttocks ends and where the anal cavity begins.” Appellant’s Br., p. 10. Huggins argues, and we do not dispute, that anal cavity is not defined in statute. As a result, as stated in his brief:

It can be agreed that between the two buttocks near the bottom there is a crease that transitions into the anus. At some point the buttocks becomes the anus. The space between the two buttocks forms a cavity. If one spreads the cheeks, the anus spreads open with them, at some point. Just as in this court’s observations in [State v. Farr, 3d Dist. Seneca No. 13-06-16, 2007-Ohio-3136, ¶ 17], penetration needs only to be slight, so does the “slight” penetration test apply in the present situation.

Id. at p. 12. As we understand the argument, Huggins is asking this court to find, as a matter of law, that the spreading of the cheeks also spreads the anus, which amounts to penetration, and thus a body cavity search.

[*P27] In support of this proposition, Huggins argues that our decision in Farr requires a broad interpretation of body cavities that include areas outside the body. In Farr, as part of its case in chief, the State was required to prove sexual conduct under R.C. 2907.01(A), which at the time was defined as any slight insertion into the vaginal cavity. Farr at ¶ 15. The defendant argued that the court’s jury instruction defined vaginal cavity too broadly as it included “the exterior portions of the vagina.” Id. at ¶ 12. However, while the trial court instructed the jury that the vaginal cavity included the vulva, penetration only occurred “if the finger/fingers is introduced with sufficient force to cause the labia majora to spread * * *.” Id. at ¶ 16. In analyzing what constituted sexual conduct under the statute, this court found that

“‘[p]enetration of the vaginal cavity requires introduction of an object from without, which necessarily implies some forceful spreading of the labia majora. * * * Therefore, if the object is introduced with sufficient force to cause the labia majora to spread, penetration has occurred.'”

Id. at ¶ 17, quoting State v. Brewer, 2d Dist. Greene No. 03CA0074, 2004-Ohio-3572, ¶ 31-32, quoting State v. Grant, 2d Dist. Montgomery No. 19824, 2003-Ohio-7240, ¶ 30. As the trial court’s instruction mirrored this finding, it was not overly broad. Farr at ¶ 17.

[*P28] Here, Huggins argues that his anus was spread when the cheeks of his buttocks were spread, and thus the officers penetrated his anal cavity. However, unlike Farr, the spreading was not caused by the forceful introduction of an object from without. Instead, as Huggins admits, any spreading of the anus was merely the result of the spreading of the cheeks. As a result, under the standard articulated in Farr, penetration did not occur.