“. . . as a receptive function of skin, touch is not solely a prerogative of the hand. It covers the entire body, including the eye itself, and the feet, which establish our contact with the ground. Conceived as such a pervasive enterprise, the haptic sense actually can be understood as a geographic sense in a global way: it “measures”, “interfaces”, and “borders” our relation to the world, and does so habitually.” —Giuiliana Bruno, Atlas of Emotion. [1]

The following New York State Court of Appeals (New York State’s highest court) ruling, the People v. Hall, 2008 NY Slip Op 2676 (2008), ruling concerns an alleged drug dealer who, when apprehended and stripped, was found to have a piece of string hanging from his rectum.  The police declared they had reason to believe that the plaintiff, Azim Hall, had a baggie of crack cocaine inside his rectum.  The police pulled the string and found this to be true.  Hall maintained that his Fourth Amendment right — that the State must maintain a warrant before entering the private property of an individual — was violated.  The police explained they technically never entered the plaintiff’s body cavity; they merely pulled the “plainly visible” string from his anus and the contraband emerged with no difficulty. Hall maintained however that being subjected to a visual inspection was itself a violation of privacy and dignity.

The case that follows, Azim v. The People, raises a number of questions that test the constitutional protection against warrantless searches and seizures of one’s private property, whether dwelling or body: What defines the right to privacy?  Is it the contours of the flesh that envelop a the surface of a body and enclose a cavity or also perhaps the eyes of another that probe from a distance? Ultimately, can the two senses — vision and touch— be separated? At stake in this (epistemological) question about the perception of truth are “the interests of human dignity and privacy when a public official peers insider a person’s body” [2].

Employing language that wavers between restrained embarrassment and sensual descriptions of flesh and sight, the judges decide “eyes are as probing as fingers and tools.” Concluding that sight and touch are inextricably bound, the New York’s Court of Appeals consequently firm up constitutional search and seizure rules, imposing greater regulation of both hands and eyes.

But what still remains constitutionally weak are those exceptions that justify a search and seizure without warrant, those exceptions justified on the grounds of “probable cause” that render live the contingent thresholds of privacy.

_____________________________

Excerpts from, The People v. Azim Hall, 2008 NY Slip Op 2676 (2008)

Defendant was transported to a police station where Spiegel searched his clothing but no drugs were found. Spiegel placed defendant in a private detention cell and asked him to remove his clothing. Burnes entered the cell and defendant was ordered to bend over or squat, at which point Spiegel and Burnes observed a string or piece of plastic hanging out of defendant’s rectum. Believing that the string was attached to a package of drugs hidden inside defendant’s body, Burnes ordered defendant to remove the object. When defendant refused, Spiegel proceeded to hold defendant while Burnes pulled on the string and removed a plastic bag that [*3]  was found to contain crack cocaine. Hall at *2-3

There are three distinct and increasingly intrusive types of bodily examinations undertaken by law enforcement after certain arrests and it is critical to differentiate between these categories of searches. A “strip search” requires the arrestee to disrobe so that a police officer can visually inspect the person’s body. The second type of examination — a “visual body cavity inspection” — occurs when a police officer looks at the arrestee’s anal or genital cavities, usually by asking the arrestee to bend over; however, the officer does not touch the arrestee’s body cavity. In contrast, a “manual body cavity search” includes some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body’s surface [3]. Hall at *4

Our task, then, is to determine whether it is reasonable to draw a constitutional distinction between a visual inspection of an arrestee’s body (which requires no touching of the person’s body whatsoever) and a manual body cavity search (which necessarily results in an intrusion beyond the body’s surface and possibly the removal of an object or the insertion of an instrument into an orifice). Hall at *7

Summarizing the relevant constitutional precedent, it is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to the next level required for a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity and the visual inspection must be conducted reasonably. If an object is visually detected or other information provides probable cause that an object is hidden inside the arrestee’s body, Schmerber dictates that a warrant be obtained before conducting a body cavity search unless an emergency situation exists [3]. Hall at *11

Because a manual cavity search is more intrusive [than a visual search] and gives rise to heightened privacy and health concerns, when weighed against the legitimate needs of law enforcement, we believe it should be subject to a stricter legal standard. . . A visual body cavity search “do[es] not create a risk of physical pain or injury” and is therefore somehow less intrusive than “a physical search of an arrestee’s body cavity” [however,] it is still true that eyes — as well as fingers and tools — can intrude unreasonably upon constitutionally protected privacy rights (see Kamins, New York Search & Seizure § 4.01 [1], at 4-3 [2007 ed.] Hall (Concurrence of Ciparick) *4

Endnotes
[1] Bruno, Giuliana. Atlas of Emotion: Journeys in Art, Architecture, and Film. New York: Verso, 2007. 254

[2] The People v. Azim Hall, 2008 NY Slip Op 2676 (2008). p.21

[3] See e.g. Paulino v State, 399 Md 341, 352, 924 A2d 308, 315 (2007), cert denied __ US __, 128 S Ct 709 (2007); Blackburn v Snow, 771 F2d 556, n 3 (1st Cir 1985); McGee v State, 105 SW3d 609, 615 (Tx Ct Crim App 2003); Kamins, New York Search and Seizure § 4.03 (5), at 4-141 (2007).

[3] “Clear indication” means “the necessity for particularized suspicion that the evidence sought might be found within the body of the individual”; it is not “a third Fourth Amendment threshold between ‘reasonable suspicion’ and ‘probable cause’” (United States v Montoya de Hernandez, 473 US 531, 540 [1985]). Because Schmerber mandates a warrant in the absence of exigent circumstances, the clear indication test requires that searches beyond the surface of a person’s body be supported by at least probable cause.

“The interests in human dignity and privacy’ invaded when a public official peers inside a person’s body cavity are at least as great as those invaded by a needle piercing the skin.” – United States v Oyekan, 786 F2d 832, 840 n 13
[8th Cir 1986]