In OLUSHOLA AKINMBONI V. UNITED STATES, decided on November 19, 2015, the Court of Appeals reversed the defendant’s conviction for possession of marijuana, BZP, and drug paraphernalia holding that the cellblock cavity search of the defendant was constitutionally impermissible.

Here the defendant was pulled over during a valid traffic stop, and marijuana was observed in plain view and the arrest made. The next day at the courthouse cellblock, the defendant was searched again and during that search the US Marshall had observed plastic bags partially protruding from the defendant’s cavity.

Defendant was ordered to remove the items (several bags) and thus additional possession charges were lodged against the defendant. The Court of Appeals in holding that the cavity search at the cellblock unreasonable, highlighted the following:

The Fourth Amendment at its core prohibits unreasonable searches and seizures and in the absence of an
exception, warrantless searches or seizures are inherently unreasonable and the evidence gathered during such searches are invariably suppressed and are inadmissible.

Moreover, if a search or seizure is conducted without a valid warrant, the government always bears the burden that the search and the seizure of the evidence was reasonable.

There is also a balancing act in play: the government’s need to conduct the search v. the defendant’s privacy interests determined by the invasiveness/intrusiveness of the search and impact on the suspect.

In assessing the reasonableness, courts must evaluate the scope, manner, and the justification for the search.

When search or seizure “involves the removal of items from sensitive body cavities, including anal or vaginal cavities, the reasonableness of the methods used may depend upon a variety of factors including hygiene, medical training, emotional and physical trauma, and the availability of alternative methods for conducting the search.”

The Court in holding that cavity search inside cellblock was constitutionally impermissible – relied on the potential medical and injurious consequences to the defendant, the possible risk to cause injury to the defendant outweighed the government’s need to have access to such evidence.

It did not matter that the officer had not removed the items himself, or that the defendant was not injured during the process, or that the baggies were protruding and easily visible or that the baggies were not necessary large that could cause discomfort or injury to the defendant.

The Court in essence held that removing illegal substances from defendant’s body cavity in absence of emergency or other exigencies in an environment such as cellblock requires a warrant and the involvement of medical professionals to ensure and to protect both the defendant medical safety as well as his privacy rights under the Fourth Amendment.

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Categories: Criminal Defense.