Warrantless Roadside Body Cavity Searches Are Pretty Much Unconstitutional
Virtually everyone agrees – from defense attorneys to legal scholars to appellate court judges – that a cop violates your constitutional right against an unreasonable search if he or she escalates a traffic stop into a roadside vaginal or anal probe.
It’s unclear, then, why the Harris County Sheriff’s Office last week defended its deputies’ actions in the case of Charneshia Corley, who was pulled over for allegedly rolling through a stop sign near the corner of Ella and Barren Springs in June.
This is what Corley’s attorney, Sam Cammack, alleges happened next: The two deputies, who claim they smelled marijuana when Corley rolled down her window, asked her to get out of the car, which Corley did. Cammack says Corley even consented to a search of her vehicle.
“Let me put you in my office,” one deputy told Corley, escorting her to the back of his cruiser, where she’d wait while he and his partner rummaged through her car, Cammack says.
The search turned up nothing, but when the deputy came back to his cruiser, he claimed he still smelled pot. At that point, Cammack says, deputies should have done one of two things: They could have let Corley go with a traffic ticket or warning, or, if they really felt they still had reasonable suspicion for a marijuana arrest (Cammack, for what it’s worth, disagrees that they did), the deputies could have filed for a warrant and taken Corley to jail, where jailers could have stripped her and made her submit to a squat-and-cough search.
Instead, Corley claims the deputies called another female deputy out to the scene for a body cavity search. Cammack says Corley told the deputies she wasn't wearing underwear when they ordered her to pull down her pants. By this time, Cammack says, Corley had been handcuffed.
Corley maintains that she understandably hesitated once the deputy put on a glove and started to pull down her pants and reach for her genitals. Authorities, however, have charged her with resisting arrest.
And, according to Cammack, this all happened in a Texaco parking lot. Cammack says he’s already found witnesses who say deputies forced Corley to the ground, spread her legs and probed her genitals in plain view.
“The deputies slammed this 21-year-old girl facedown on the ground and got on top of her,” Cammack told the Houston Press. “The deputy grabbed her pants, pulled her pants down all the way past her ankles, while officers held her legs. Then one of them stuck her fingers up inside her.”
Authorities claim they found .02 ounces of marijuana, and have charged Corley with class B misdemeanor possession (it’s unclear where they ultimately found enough pot to justify a charge). Under a policy that the Harris County District Attorney, HSCO and the Houston Police Department all adopted last year, Corley should have been offered what’s been called a “first chance intervention program”; her only record in Harris County is a criminal mischief charge in 2012 that prosecutors ultimately dismissed.
According to Geoffrey Corn, a South Texas College of Law professor whose expertise is in criminal law, the type of body cavity search Corley first described to Channel 13 last week is unconstitutional.
Such warrant-less searches, he said, are typically justified only when waiting for a judge to sign a warrant “will result in imminent loss or destruction of evidence.” (That’s why police and prosecutors argued for years that warrantless blood draws for DWI suspects didn’t violate the Fourth Amendment; most large departments now have judges on call specifically to approve DWI blood draws.)
If the deputies really thought Corley had pot and that the only way they were going to find it was through a body cavity search, they should have waited for a warrant, Corn says. “[T]o comply with the Fourth Amendment’s ‘reasonableness’ requirement, the police would have to establish probable cause the evidence was concealed in the body, and even then obtain a warrant,” he told us via email. “So I think in most cases this would be unreasonable. Even at the border, where normally no cause is required for a search, agents must have at least reasonable suspicion to do a body cavity search because it is considered ‘unusually intrusive.’”
Rebecca Robertson, legal and policy director for the ACLU of Texas, said Corley’s allegations against the sheriff’s office “shock the conscience.” While Robertson said Corley’s case “is a blatant constitutional violation,” she said that courts have ruled that invasive probes can be unconstitutional even when officers obtain a warrant and even when they find drugs.
Robertson pointed to the case of Rondrick Gray, who in April 2010 was pulled over and arrested after a confidential informant told San Angelo police that Gray sold crack cocaine. Police twice searched Gray’s car – once for two hours – but found nothing. They strip-searched him twice, as well, before they took him to jail and forced him to do a squat-and-cough search. Seven hours after his traffic stop, a judge signed a search warrant and police took Gray to the hospital for a body cavity search.
Doctors found nothing after searching his rectum, but police blamed it on Gray being “evasive and uncooperative.” So police brought in another doctor to perform a proctoscopic exam of Gray’s rectum. They had to give him two sedatives intravenously; a doctor later testified that the drugs carried the small risk that Gray could have stopped breathing. Doctors ultimately recovered a small baggie with 9.26 grams of what police say was crack cocaine.
In 2012, however, the federal Fifth Circuit Court of Appeals ruled that the evidence was inadmissible because police violated Gray’s constitutional rights to get it. Gray’s lawyers argued that only full-on exploratory surgery would have been more intrusive. The Fifth Circuit called that “an understatement,” and wrote:
“…the proctosopy here was a greater affront to Gray’s dignitary interest than a full-on exploratory surgery. Though sedated, Gray was conscious throughout the entire procedure. Moreover, the procedure targeted an area of the body that is highly personal and private. In our society, the thought of medical technicians, under the direction of police officers, involuntarily sedating and anally probing a conscious person is jarring. Such a procedure is degrading to the prson being probed – both from his perspective and society’s.”
The ACLU of Texas is now fighting a similar case on behalf of a New Mexico woman who says she was forced to submit to a body cavity exam when stopped at the El Paso border crossing by U.S. Customs and Border Protection; the hospital and doctors who performed the exam have already settled for $1.1 million.
When first questioned by Channel 13 about Corley’s body cavity search in a Harris County Texaco parking lot this summer, “Harris County Sheriff’s spokesman Thomas Gilleland said the deputies did everything as they should,” the station reports. Gilliland also told the station that deputies even wrote in their report that Corley consented to a strip search; it’s unclear, then, why Corley would be charged with resisting arrest if that’s the case.
Harris County Sheriff Ron Hickman hasn’t released any documents or the dash-cam video of the incident to either the media or Corley’s attorney. (His office also failed to return calls and emails requesting comment on the case.) Marijuana reform activists with Houston NORML are demanding that Hickman investigate and, if necessary, punish the deputies involved in Corley’s search. They’re also asking that prosecutors investigate to determine whether any criminal charges, such as sexual assault, are warranted.
Jason Miller, executive director of Houston NORML, points to public polls that show society’s views on pot and how it should (or shouldn’t) be handled in the criminal justice system are changing. Nearly half the country has passed medical marijuana laws. Recreational marijuana use is now legal in four states and the District of Columbia. Ohio just put marijuana legalization on the November 3 ballot.
And locally, even police and prosecutors have come to the conclusion that the way we handle misdemeanor marijuana possession needs to change. Just last year, Houston Police Chief Charles McClelland called the drug war a “failure” and said this about marijuana:
"Most police chiefs understand that when it comes to marijuana use, we cannot criminalize such a large population of society that engage in casual marijuana use. We can't, you just can't continue to do that, we understand that.”
Miller says he understands that law enforcement agencies in Texas have to treat small-time marijuana possession as a criminal offense until state policy shifts with the rest of the country. “But in the meantime," he says, "I would at the very least expect our law enforcement officers to follow the constitution.”