Reasonable Suspicion Required to Conduct a Visual Body Cavity Search

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Sloley v. VanBramer (2nd Cir. 2019)

Maxmillian Sloley and his soon-to-be-ex-girlfriend, Daphne Rollins, were fighting over rumors that Sloley was seeing another woman. When Sloley grabbed Rollins’ cell phone and ran from the house, Rollins followed, then went back into the house to grab a baseball bat. Sloley tossed the phone and Rollins hit Sloley’s windshield with the bat. Sloley followed Rollins back into the house, took the bat, and hit Rollins’ car. Sloley drove off and Rollins called police.

A trooper responded to the call. The trooper claimed Rollins told him Sloley was involved with drugs and might have drugs on him. Rollins later denied any comments about illegal drugs. A deputy spotted Rollins, pulled him over, handcuffed him and drove him to the police station.

The trooper asked a service dog handler to check Sloley’s car. The handler recognized Sloley’s name “as referring to an individual who was well known in the area for being wrapped up in illegal drugs.” The detector dog gave a positive final response to the odor of illegal drugs at several locations on the car. The trooper searched Sloley’s car and located “a small amount of a loose, chunky substance that appeared to be crack cocaine in the crease in the driver’s seat.” A field test of the substance was positive for cocaine. Sloley denied there were any drugs in the car and denied using illegal drugs.

The handler took Sloley to a private room and directed him to undress, searching each item of clothing Sloley removed. Once Sloley was naked, the handler directed Sloley to lift up his testicles and bend over and spread his buttocks for visual inspection. The search did not reveal any contraband.

The court held that “visual body cavity searches … must be based on reasonable suspicion to believe that the arrestee is secreting evidence inside the body cavity to be searched.”

Sloley was convicted of harassment. He then filed a civil suit against the troopers, alleging the visual body cavity search violated his Fourth Amendment rights. The court began by defining the type of searches Sloley experienced. “(1) a ‘strip search’ occurs when a suspect is required to remove his clothes; (2) a ‘visual body cavity search’ is one in which the police observe the suspect’s body cavities without touching them (as by having the suspect to bend over, or squat and cough, while naked); (3) a ‘manual body cavity search’ occurs when the police put anything into a suspect’s body cavity, or take anything out.”

At the time of Sloley’s arrest, the law was clearly established that a strip search may be conducted with “reasonable suspicion that a misdemeanor arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.” However, the court conceded, neither the 2nd Circuit Court of Appeals nor the U.S. Supreme Court had previously held the same standard applied to a visual body cavity search. Nonetheless, the appellate court reasoned visual body cavity searches are even more intrusive than strip searches.

The court paused to brush aside the notion that a weapon could be hidden in a body cavity. “[W]e are unaware of any case in which an arrestee concealed inside a body cavity a weapon.” A quick conversation with an experienced corrections officer, or even a simple internet search, would quickly have brought the court into the real world of rectal smuggling. Though perhaps not common, rectums have been the repository of pistols large and small, knives, shivs, etc.

The court held that “visual body cavity searches … must be based on reasonable suspicion to believe that the arrestee is secreting evidence inside the body cavity to be searched.” Even though that rule had not been clearly articulated, the court opined “every reasonable” officer should have clearly understood the reasonable suspicion standard applied to a visual body cavity search of an arrestee. Thus, the court allowed no qualified immunity on this point for the handler who conducted the visual search.

One might editorialize and wonder whether every reasonable officer clearly understands weapons may be concealed in the rectum. The issue of a concealed weapon wasn’t before the court in this case, however, the court paused to profess its ignorance of the fact. Perhaps an application of parity of logic would suggest the troopers were entitled to the benefit of the doubt and to qualified immunity.

The dissent defined the majority opinion as “some assembly required” that “has it backward,” and a far cry from judging the troopers’ conduct under the “clearly established” standard repeated and reinforced many times over in the recent past by the current United States Supreme Court. The dissent intimated an invitation for a petition for rehearing en banc (a rehearing before all judges of the circuit court). The Supreme Court certainly hasn’t been slow to summarily reverse the frequent qualified immunity errors of other courts, particularly of the 9th Circuit. Thus, further litigation may follow.

Though the court may have significantly stretched whether the reasonable suspicion standard applicability to visual cavity searches was clearly established prior to Sloley’s arrest, the rule is clear now, at least in the 2nd Circuit. Both strip searches and visual body cavity searches incident to arrest must be supported by a reasonable suspicion the suspect is concealing contraband. Note: This case is one of a search incident to arrest, not a booking search. In Florence v. Board of Chosen Freeholders of Burlington (566 U.S. 318 (2012)), the Court upheld strip searches for any person booked into a jail’s general population, regardless of the level of crime for which the person was booked and without reasonable suspicion of concealed contraband.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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