Are Body Cavity Searches Violative of the Fourth Amendment?

In the United States, the Constitution provides citizens with a reasonable expectation of privacy. For instance, the Fourth Amendment protects against government intrusion in private citizen’s homes without a warrant. This amendment applies when persons have a “legitimate expectation of privacy.” In some instances, criminal lawyers have to consult jurisprudence on the matter, like what could come out of Brown v. Wisconsin.

The case of Brown v. Wisconsin, pending before the Supreme Court, examines the issue of whether police officers were justified in searching a woman’s anal cavity and vagina without a warrant. The Supreme Court must decide whether the Fourth Amendment protects persons from humiliating or unreasonable searches by law enforcement. Today we will examine the circumstances of the Brown case and its importance in cases moving forward.

The Context of the Brown Case

In May 2017, Sharon Brown, a Native American woman residing in Minnesota, was stopped by the police after her boyfriend’s alleged shoplifting from a local Wal-Mart. She was a passenger in her boyfriend’s car, and the police took both of them to jail. The police placed Brown in a holding cell, and the jail’s policy allowed manual body-cavity searches without a warrant or probable cause.

Less than a day after Brown’s detainment, another detainee told correctional officer Steven Hillesheim that Brown had drugs on her person. This detainee had a reputation of being a troublemaker and was known to have lied in the past. However, Hillesheim did not investigate the legitimacy of this other detainee’s claims. It is important to note that Brown had no history of drug abuse and was being held for an unrelated claim, shoplifting.

Nevertheless, Hillesheim ordered a manual body cavity search of Brown, and she used the restroom while jail staff watched. The search turned up no drugs, but the officers still suspected she was hiding something. They took her to the hospital and requested an ultrasound of her abdomen, where they again found nothing. Instead of stopping there, though, the officers requested more searches. The doctor inserted a speculum into Brown’s vagina and then her anus, which once again showed no drugs.

Why the Case Is in Court

The ordeal caused embarrassment and emotional trauma to Brown; it left her with depression and anxiety. Brown was also only a pretrial detainee, not an inmate. Furthermore, she was in jail for shoplifting, not drug possession or trafficking. Criminal lawyers would argue she is well within her rights to file a lawsuit, which she did—Brown filed a civil rights lawsuit against the state. She argued that the penetration of her vagina and anus in search of drugs violated her Fourth Amendment rights.

Does Brown Have a Valid Argument?

A “reasonable” intrusion into the body meets several conditions. First, there has to be a warrant for the intrusion. Without a warrant or time to secure one, there needs to be probable cause and a compelling need for official action. The Fourth Amendment protects against unwarranted searches—even blood tests for people suspected of driving under the influence are prohibited without a warrant. The law considers such tests intrusive, unlike breath tests, which are not as invasive.

Concerning bodily cavity searches, visual inspections are standard and to be expected when you check into jail. However, the Fourth Amendment only allows visual tests on balance—if they protect both the jail’s security and the inmates’ privacy. Circuits disagree on how to handle this. For instance, the Tenth Circuit requires probable cause for a strip search, while the Seventh Circuit allows for searches based on “reasonable suspicion.”


American courts are split on the issue of whether the Fourth Amendment needs a reason stronger than reasonable suspicion for a physical search of a pretrial detainee’s anus or vagina. All persons deserve basic dignity and protection against traumatic and invasive procedures, even detainees awaiting a trial. The American legal system stands on the premise of equality for all, so courts and lawyers must do what they must to uphold that.

Trust Frank Fernandez to be your legal representative whenever you need a Boston criminal lawyer. With more than 25 years of experience in both state and federal courts, Atty. Fernandez draws from his wealth of experience in litigation in the Boston, MA area to help his clients achieve the best outcome for their cases. Contact the Fernandez Firm today for a free consultation!