The Supreme Judicial Court ruled today that police do not necessarily need a search warrant to pull foreign materials from between a person's butt cheeks, even if some of the stuff might be lodged inside the person's anus.
In a ruling involving 28 bags of cocaine and heroin allegedly removed from one man's butt cheeks, or, in legal terms, his "intergluteal cleft," following a 2015 arrest in Revere, the state's highest court was forced to get really down and dirty in advising police on just how far they can go before they have to ask a judge for a warrant - to the point of discussing "a gentle flick" to determine just how far up a person's anus a bag might go and how hard it might be to remove.
State law has long differentiated between visual strip searches, which can be done without a warrant provided officers have legitimate reasons to conduct one, and cavity searches, which normally require a warrant from a judge, under the theory that a cavity search is "a more intrusive, humiliating, and demeaning search" that should not be done without proper consideration both for the arrested person's civil rights and for safety concerns if the item is wedged in and not easily removable.
At issue in the Revere case was a single plastic bag containing 28 smaller bags of cocaine and heroin that police say they found between Stanley Jeannis's butt cheeks during a strip search after, police say, he began acting funny during his stay in the police lockup following his arrest on warrants at a local hotel. According to the court summary, Jeannis complained he felt like he was going to vomit. Officers walked him over to another cell with a sink and toilet - and noticed his gait was "slow, rigid, and tense" and that he seemed to be clenching his butt cheeks together.
Fearing he might have "something secreted in his lower half" that could be used to harm officers or other prisoners, a lieutenant ordered him to strip for a visual inspection. He at first resisted pulling down his underpants and continued to clench that part of his body - and to keep it away from officers.
The defendant pulled down the waistband of his underwear and told the officers, in substance, "See, I don't have anything." But when he did so, Singer noticed a plastic bag protruding from the defendant's buttocks. He asked the defendant to remove the bag and the defendant stated, "I will get it for you if you don't charge me." Singer then ordered the defendant to remove the bag, and told the defendant that he would remove it himself if the defendant refused to do so. The defendant complied and, with Singer's hand on top of the defendant's hand, the defendant pulled down his underwear and removed the bag from his buttocks area.
Jeannis appealed the use of the drugs as evidence, saying prosecutors had failed to prove that bag was not partially up his anus, which would have required a search warrant. A lower-court judge denied his request, but the Massachusetts Appeals Court agreed and tossed the evidence, saying that in such a sensitive search, police really need to prove they did not go too far.
The Suffolk County District Attorney's office then appealed to the SJC, which said today that, depending on the circumstance, it is, in fact, possible to remove a bag from between a person's butt cheeks even if part of it did reside a bit further up the alimentary canal in certain circumstance without needing a judge's approval first:
We agree with the Appeals Court that police officers, if they have probable cause, may conduct a visual body cavity search to learn more about the precise location of a protruding bag and that, if they determine through that visual search that the bag is solely within the intergluteal cleft of the defendant's buttocks and has not entered the anus, they may remove the bag based on the same probable cause that justified the visual body cavity search. But we do not agree that a search warrant for a manual body cavity search is always required to remove a plastic bag where the police did not or could not ascertain that the bag is located completely outside of the rectum -- that is, where it did not to any degree penetrate the anus. Rather, we conclude that a search is a strip or visual body cavity search, not a manual body cavity search, where there is "no touching or probing or otherwise opening or manipulating of the defendant's anal cavity, and the bag of drugs was easily removed without in any way endangering the defendant's health or safety." Vick, 90 Mass. App. Ct. at 629.
This means that, where police officers are uncertain whether the bag has penetrated the defendant's anus, they have two alternatives. First, where they have probable cause to do so, they may conduct a visual body cavity search to determine whether the bag has penetrated the defendant's anus. If it has not, they may remove the bag without a search warrant. Second, where the bag has penetrated the anus or where the police officers have not ascertained through a visual body cavity search whether it has, they may determine whether the bag can be safely removed without any touching, probing, or manipulation of the rectum. See id. If it can be safely removed and if there is no touching, probing, or manipulation of the rectum, the removal of the bag is not a manual body cavity search. See id. However, if the bag cannot be safely removed without any touching, probing, or manipulation of the rectum or if there is uncertainty whether it can be, the officers must apply for a search warrant for a manual body cavity search, unless exigent circumstances justify proceeding without a warrant. See id. at 628-629. Pragmatically, a police officer may determine whether the bag can be safely removed without any touching, probing, or manipulation of the rectum by gently flicking the bag with his or her fingers, applying no significant pulling force on the bag. If that suffices to remove the bag without any resistance, we do not consider the search to be a manual body cavity search. See id. at 625, 629. A gentle flick to remove a plastic bag protruding from the cleft of a defendant's buttocks may in some circumstances be safer and less intrusive than a visual body cavity search intended to determine whether the bag has penetrated the defendant's anus. It is easy to envision a defendant resisting an intrusive and embarrassing visual body cavity search, risking injury to both the defendant and the police officers attempting to restrain the defendant. And a gentle flick may be less intrusive than a visual inspection because a police officer attempting to conduct the inspection might need to place his or her fingers so close to the anus that he or she might come close to a touching or probing that would constitute a manual body cavity search.
If there is any resistance to the gentle flick, indicating that the bag is in any way lodged or embedded within the body cavity, then the police must release the bag and apply for a search warrant for a manual body cavity search, unless there are exigent circumstances. We recognize the health risk that may arise if a police officer were to continue to pull on the bag where there is any resistance. In United States v. Fowlkes, 804 F.3d 954, 959-960 (9th Cir. 2015), a police officer continued to pull on a bag protruding from the defendant's rectum after encountering resistance in what was described as "a difficult, abrasive procedure," where the plastic bag "went from a dime size . . . to somewhat near a golf ball size as it was taken out," and was "covered in blood." The requirement of a search warrant for a manual body cavity search is intended not only to ensure that a judge determines whether there is a strong showing of particularized need supported by a high degree of probable cause, Rodriques, 410 Mass. at 888, but also to ensure that any such search is conducted in a safe, reasonable manner under sanitary conditions by a trained medical professional. See Fowlkes, supra at 967 (warrantless forcible seizure of plastic bag protruding from defendant's rectum was unreasonable under Fourth Amendment where item of unknown size was removed from rectum by nonmedical personnel who "did nothing to assure that the removal was safe and performed under sanitary conditions").
In the specific case at issue, the court agreed with prosecutors that a search warrant was not needed:
The size of the 275 pound defendant compared to the small plastic bag at issue -- a photograph of which was admitted in evidence -- supported the finding that the bag, which was apparently visible outside the intergluteal cleft as soon as the defendant pulled down his waistband, did not extend so far down as to be lodged or embedded in his rectum. Although we cannot know with certainty on this record whether any part of the bag was inside the rectum, the facts as found support the conclusion that the bag was not lodged or embedded in the defendant's rectum but was easily removed, and therefore the defendant's rectum did not need to be "manipulated" in order to retrieve the bag. Consequently, a search warrant issued by a judge was not required.