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When Can Police Conduct a Body Cavity Search?

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By Brett Snider, Esq. on November 07, 2013 12:34 PM

When can police conduct a body cavity search?

A body cavity search is one of the most invasive and humiliating kinds of intrusion a suspect can be subjected to, so the constitutional right to be free of these searches is at its zenith. However, there are a few situations in which, despite Fourth Amendment protections, the police may conduct a reasonable body cavity search.

Here's a general overview of what you need to know:

1. With a Search Warrant.

The Fourth Amendment protects Americans from unreasonable searches and seizures whether there is a warrant or not. Search warrants contain a determination of probable cause to search, so searches performed under warrant are presumed legal.

Search warrants that authorize a body cavity search require a judge to consider two factors:

  • The reasonableness of invading a suspect's body, and
  • The state's interest in obtaining evidence of a crime.

A body cavity search is extremely invasive and burdens a suspect's reasonable expectation of privacy, so the government's interests in searching a suspect's body must be even greater.

Even with a legal warrant, some federal courts have held that search warrants authorizing body cavity searches are unreasonable if there are less invasive means of finding that evidence.

Still, police may legally perform a body cavity search on a suspect in good faith, even if the search warrant is later found invalid.

2. At the Border or at an Airport.

The border search exception allows law enforcement to make searches, even body cavity searches, at borders and airports without probable cause.

Because the government's interest in protecting national security is at its peak in these areas, body cavity searches may be reasonably performed without a warrant or probable cause. The U.S. Supreme Court has declined to answer what, if any, level of suspicion would be needed to perform a "nonroutine" search such as a body cavity search at the border.

Lower federal courts have concluded that for body cavity searches, officers would need "real suspicion" or something equivalent to reasonable suspicion.

3. Upon Incarceration.

Like at the border, law enforcement in jails and prisons have greater latitude to perform routine strip and body cavity searches of arrestees and inmates. The U.S. Supreme Court has noted that these standard invasive searches are justified by a need to prevent weapons and contraband from entering a jail or prison.

If you have been subject to a body cavity search that you feel was unlawful, a knowledgeable criminal defense attorney near you can help you sort out your legal options.

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