DC: Warrantless anal cavity search in courthouse cellblock not shown to be reasonable

The government failed to carry its burden that the anal cavity search of defendant in a courthouse cellblock was reasonable without the use of medical personnel. They may not always be required, but they may be, and what case law there is on this issue requires an inquiry for a reasonableness determination. Akinmboni v. United States, 2015 D.C. App. LEXIS 530 (Nov. 19, 2015):

Determining whether a search or seizure was reasonable in manner requires a balancing of the needs of the government against the invasiveness of the intrusion and its impact on the suspect. Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). In assessing reasonableness, courts “must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id.; see also, e.g., Washington v. United States, 594 A.2d 1050, 1052 (D.C. 1991). Where a search or seizure involves the removal of items from sensitive body cavities, including anal or vaginal cavities, the reasonableness of the methods used may depend upon “a variety of factors including hygiene, medical training, emotional and physical trauma, and the availability of alternative methods for conducting the search.” United States v. Fowlkes, No. 11-50273, 2015 U.S. App. LEXIS 17097, 2015 WL 5667555, at *5 (9th Cir. Sept. 28, 2015).

B.

The Ninth Circuit’s recent decision in Fowlkes illustrates the risks posed when untrained individuals extract unknown contraband from sensitive body cavities. In Fowlkes, officers conducting a jail intake search believed that an arrestee had secreted contraband in his anal cavity. 2015 U.S. App. LEXIS 17097, 2015 WL 5667555 at *1. Although the arrestee initially resisted, the officers forced him to bend forward and expose the area between his buttocks, revealing part of a plastic bag protruding from his anus. 2015 U.S. App. LEXIS 17097, [WL] at *2. Acting in the absence of medical personnel and without any advance knowledge of the plastic bag’s contents or size, one of the officers removed the bag. Id. Although the officer testified that he was able to retrieve the bag without himself touching or penetrating the arrestee’s anal cavity, the “removal itself was a difficult, abrasive procedure.” Id. As things turned out, the object inside the bag was about the size of a golf ball. Id. Once removed, the bag was covered in blood. Id.

Relying heavily on the medical risks posed, the Ninth Circuit held that the officer’s conduct was constitutionally unreasonable. Fowlkes, 2015 U.S. App. LEXIS 17097, 2015 WL 5667555, at *3-10. The court pointed out that there was “no evidence that any of the officers had medical or any other relevant training on how to safely remove suspicious objects from an arrestee’s rectum or how to evaluate whether such removal could cause serious physical harm or death.” 2015 U.S. App. LEXIS 17097, [WL] at *6; see also id. (citing United States v. Cameron, 538 F.2d 254, 258 (9th Cir. 1976) (Kennedy, J.) (“[T]he person accused of concealing contraband within his body is faced with the real prospect that the most intimate portions of his anatomy will be invaded and that he will suffer resulting pain or even physical harm.”)). …