The Controversy of Body Cavity Searches

There are several controversial methods of gathering non testimonial evidence. Among these methods, body cavity searches are the most controversial. Much of this controversy stems from the argument that body cavity searches severely infringe on an individuals right to privacy. Also, it is argued that body cavity searches are used as sources of humiliation and harassment, rather than effective evidence collection techniques. Cases concerning body cavity searches and rights to suspects have been presented several times to the US Supreme Court.

There are several types of body cavity searches. The least invasive is the strip search. This type of search requires persons to remove their clothing and other personal effects to check for contraband. The other type is body cavity searches are broken into two separate subcategories. The first of the two subcategories is through visual body cavity search, a flashlight is used to illuminate body orifices, including nostrils, ears, mouth, male penis (urethra and foreskin), female vagina, and rectum. Usually the person being searched is required to contort so that all body orifices may be examined for contraband. A second type is the manual body cavity searches, in which body orifices are probed using fingers or instruments. This is the type of search that causes the most legal controversy and is usually required to be court approved and completed by a medical doctor. When suspects choose to refuse a visual search the manual search is enabled.

The benchmark case for this issue is Bell v. Wolfish (1979). The court led by Chief Justice Warren E. Burger decided that such searches were not an infraction to the fourth amendment as long as the search was intended to reduce contraband and weapons in the prisons. Via the legal term stare decisis this court decision is binding on future cases. Another Supreme Court case was that of US v. Montoya de Hernandez. In this case, the now prevalent practice of canal smuggling was questioned along with the humane treatment of those detained for crimes and anyone subject to the possibility of submitting to a body cavity search. Canal smuggling involves the swallowing of condoms filled with drugs, crossing a border with the illegal drugs, then nature running its course before the drugs are recovered and resold illegally. In this case the comfort of a suspect of canal smuggling was questioned after reasonable suspicion led the agents to believe she was smuggling drugs. The suspect refused to be x rayed and no immediate flight was available back to their home country. The suspect was instead put into holding until a court order requiring the X rays to be was obtained. The x rays indeed revealed that the person was smuggling drugs illegally into the United States. In this case, the Supreme Court ruled that any discomfort the suspect experienced "resulted solely from the method that she chose to smuggle illicit drugs" (Schmallenger, Pg. 177). In both of these cases, but specifically in Bell v. Wolfish, the supreme court established reasonable standards for conducting invasive searches, among them is security at prisons.

Due to their highly invasive techniques and questionable reliability, their legal standing is often contested. As new cases and techniques, such as non invasive medical procedures like magnetic resonance imaging, come into play in the legal system, the standing of these searches in the judiciary is bound to come under fire yet again. With safety being an over riding concern especially in today's jails and prisons, body cavity searches are necessary to protect both inmates as well as prison employees. The challenges which will be raised in the years to come will definitely challenge the legality of invasive searches, but it will also aid in defining just what is and is not legal regarding the circumstances surrounding the search. Safety will act as an overriding concern of courts and invasive searches will remain legal to act as a guard against the injuries of individuals.