The Fourth Amendment protects against government intrusion in the home and provides for a reasonable expectation of privacy. But does this protection extend to the most intimate areas of a person’s body? The case of Brown v. Wisconsin is pending before the Supreme Court and looks at the issue of whether police officers were justified in searching a woman’s vagina and anal cavity without a warrant. The Supreme Court of the United States must grant cert and decide whether the Fourth Amendment protects a person from unreasonable and humiliating searches by law enforcement officers.

What happened in the Brown case?

Sharon Brown is a Native American woman residing in Minnesota. In May of 2017, she was a passenger in her boyfriend’s car following a trip to Wal-Mart. The police stopped the vehicle after learning that her boyfriend allegedly shoplifted from the store. Despite her only being the passenger in the car, the police took her along with her boyfriend to jail and placed her in the holding cell. The jail’s policy allowed manual body-cavity searches without a warrant, probable cause, or exigency. Less than a day after Brown was detained, another detainee told a correctional officer, Steven Hillesheim, that Brown was hiding drugs. This detainee was a know liar and troublemaker. Hillesheim, however, did not investigate the legitimacy of these claims, despite Brown not having a history of drug use and being held in prison for shoplifting, an unrelated claim.

Hillesiem ordered a manual body cavity search of Brown. Brown used the restroom while jail staff watched. Once she was done, the officers were not satisfied, and still suspected that Brown was hiding something. Brown was taken to the hospital, where an ultrasound was performed of her abdomen, searching for drugs that did not exist. The doctors found nothing. But, instead of stopping there, the doctor inserted a speculum into Brown’s vagina to search for the drugs. After finding nothing in her vagina, the doctors then took their search a step further and inserted the speculum into Brown’s anus. As expected, no drugs were found, and the entire hospital visit and intrusive search was for nothing .

Brown was not only embarrassed after the entire ordeal, but she was emotionally traumatized by the procedure. She cried herself to sleep and was left with depression and anxiety over the incident. Brown filed a civil rights lawsuit and argued that the penetration of her vagina and anus in search of drugs was a violation of her Fourth Amendment rights. Even more shocking is that Brown was just a pretrial detainee, not a convicted inmate.

For an intrusion into the body to be considered “reasonable” under the Fourth Amendment, it must meet a few factors. First, it must be supported by a warrant, probable cause, or a compelling need for official action and no time to secure a warrant. The Fourth Amendment protects against bodily intrusion. Even blood tests to test for intoxicated drivers generally cannot be performed without a warrant because such tests are significantly intrusive compared with the less invasive breath test.

As far as bodily cavity searches go, visual body-cavity inspections are expected when checked into jail. However, the Fourth Amendment only allows that these visual tests can be done if they are balanced against the jail’s security interests against the inmates’ privacy interests. Circuits are split about how to handle this. For example, the Tenth Circuit requires probable cause for strip searches, and Seventh Circuit has an even lower standard. It may do manual body cavity searches based on “reasonable suspicion” alone. On the other hand, four federal courts have held that a body cavity search must have a warrant, probable cause, or a situation so pressing where a warrant cannot be attained.

The nation’s courts are split on the important and sensitive issue of whether the Fourth Amendment requires anything more than reasonable suspicion to physically pernitrate a pretrial detainee’s vagina or anus. Just because a person is in jail does not mean that they are not deserving of basic dignity. The Supreme Court must grant cert and resolve this issue before more pretrial detainees are violated in such an intrusive and traumatic manner.

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