CA11: “Inserting a probe into a woman’s vagina is plainly a search when performed by the government.”

Unwilling sonogram by a college in a class is a Fourth Amendment search. “Inserting a probe into a woman’s vagina is plainly a search when performed by the government.” Investigative purpose not required. Doe v. Valencia College Board of Trustees, 2016 U.S. App. LEXIS 17922 (11th Cir. Oct. 4, 2016):

This appeal requires us to decide two issues: whether student speech that objects to the pedagogy of officials of a public college is “school-sponsored” expression under the First Amendment and whether an invasive ultrasound constitutes a “search” under the Fourth Amendment when performed for instructional reasons instead of investigative or administrative reasons. After several employees of Valencia College encouraged students to submit voluntarily to invasive ultrasounds performed by peers as part of a training program in sonography, some students objected. The employees then allegedly retaliated against the objecting students and successfully pressured two students to undergo the procedure. The students filed a complaint against the employees, which the district court dismissed for failure to state a claim. Because the district court erroneously classified the students’ speech as school-sponsored expression and the district court erroneously ruled that the ultrasound was not a search under the Fourth Amendment, we vacate the order dismissing the complaint and remand for further proceedings.

. . .

B. The Ultrasounds Were Searches Under the Fourth Amendment.

Milward and Ugalde argue that the transvaginal ultrasounds were an unconstitutional search under the Fourth Amendment. The employees argue, and the district court agreed, that no search occurred because the transvaginal ultrasounds had no “investigative” or “administrative” purpose. The district court erred.

Inserting a probe into a woman’s vagina is plainly a search when performed by the government. Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search “has undoubtedly occurred.” United States v. Jones, 132 S. Ct. 945, 950-51 & n.3 (2012). The Supreme Court has long recognized that compelled blood and urine tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (citing Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber v. California, 384 U.S. 757, 767-68 (1966)). Even under the broader test that a “search” is “any governmental act that violates a reasonable expectation of privacy,” O’Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each ultrasound clearly constituted a search. “[I]t is obvious” that the “compelled intrusio[n] into the body … infringes an expectation of privacy that society is prepared to recognize as reasonable.” Skinner, 489 U.S. at 616 (internal quotation marks and citations omitted).

Although the employees did not conduct the transvaginal ultrasounds to discover violations of the law, the word “search” in the Fourth Amendment does not contain a purpose requirement. The Supreme Court explained in Soldal v. Cook County why such a requirement would be anomalous:

[T]he reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the [Fourth] Amendment applies. What matters is the intrusion on the people’s security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all. As we have observed on more than one occasion, it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”

506 U.S. 56, 69 (1992) (emphases added) (quoting Camara v. Mun. Court of San Francisco, 387 U.S. 523, 530 (1967)).