NO. 1408-00


DANNY JOE McGEE, Appellant




Price, J., filed this concurring and dissenting opinion, in which Meyers, J., joined.

In this case, we are called upon to decide whether the arrest and subsequent body-cavity search of the appellant were authorized, in the absence of a warrant, by the laws of Texas and the United States. I agree with the majority that the appellant's arrest was authorized under Article 14.01(b) of the Texas Code of Criminal Procedure. I disagree with the majority's position that the visual body-cavity search performed at a local fire station was authorized by the United States Constitution. This search, which involved a bodily intrusion, was not supported by exigent circumstances.

Neither the United States Supreme Court, nor this Court, has determined whether a search incident to arrest may include a visual body-cavity search, today we address the question. Cases from federal courts and other states provide persuasive authority.

The United States Supreme Court has held that a search incident to a lawful arrest authorizes the police to conduct "a full search of the person." United States v. Robinson, 414 U.S. 218, 235 (1973). Police may also search the area within the arrestee's immediate control, see Chimel v. California, 395 U.S. 752, 763 (1969), and seize his or her personal effects that are evidence of the crime. See United States v. Edwards, 415 U.S. 800, 804-05 (1974).

A police officer's decision to conduct a search incident to arrest is largely free from judicial scrutiny before and after the arrest. The Supreme Court explained in Robinson that a police officers decision about how and where to search a person is "a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search." Robinson, 414 U.S. at 235. The officer's authority to search incident to arrest is justified by the need to protect the officer's safety and to prevent the concealment or destruction of evidence. Ibid. The scope of the search must not exceed the justification for the search, however; this exception to the warrant requirement does not give officers unlimited authority to search an arrestee. See Edwards, 415 U.S. at 808 n.9.

The authority of the police under the Fourth Amendment to conduct a full search of an arrestee's person without a warrant is only skin deep. The policy considerations that justify the search incident to arrest--the need to disarm the suspect and to prevent the destruction of evidence under the suspect's direct control--do not apply to searches involving intrusions beyond the body's surface. Schmerber v. California, 384 U.S. 757, 769 (1966).

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.

Id. at 769-70. The Supreme Court reaffirmed this principle when, in Illinois v. Lafayette, 462 U.S. 640, 646 n.2 (1983), it explained that it was not addressing strip searches as incident to arrest in Edwards.

In many jurisdictions, the search of a body-cavity is considered an intrusion into the body under Schmerber that falls outside the permissible scope of a search incident to arrest. (1)

I agree with this conclusion. Body-cavity searches are different from the average full search of a person; they create natural apprehension and revulsion, and "instinctively give [courts] the most pause." Bell v. Wolfish, 441 U.S. 520, 558 (1979).

The State argues that, because the appellant was under lawful arrest, Rowan was authorized to search the appellant to find contraband or weapons under United States v. Robinson, 414 U.S. 218 (1973). The State cites Salinas v. Breier, 695 F.2d 1073, 1085 (7th Cir. 1982), in support of its argument that, when a person is in custody following a lawful arrest and there is probable cause to believe illegal drugs are hidden on or within the person's body, limited measures may be taken to recover the substance. Because Rowan had probable cause to believe the appellant possessed illegal drugs between his buttocks, the State argues, he was authorized to take the appellant to the fire station and retrieve the drugs.

In Salinas, the Seventh Circuit relied on Robinson, Gustafson v. Florida, 414 U.S. 260 (1973), and Edwards, which all permit a full search of one lawfully arrested. But the language in these cases should not be read to encompass body-cavity searches. The searches in these cases involved the removal of items from the clothing of the arrestees. Edwards, 415 U.S. at 802; Robinson, 414 U.S. at 222-24; Gustafson, 414 U.S. at 262. The searches in these cases, although extensive, were not as complete as a body-cavity search and did not have any "extreme or patently abusive characteristics." Robinson, 414 U.S. at 236.

Body-cavity searches have been described as "dehumanizing, demeaning, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission." Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (internal quotation marks omitted). These searches are highly invasive and cannot be characterized as routine. See Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997). Even in the context of border searches, where officials need no suspicion to conduct most other searches, courts have characterized strip and body-cavity searches as non-routine searches that require various levels of suspicion to be justified. United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994); see also United States v. Montoya De Hernandez, 473 U.S. 531, 541 n.4 (1985) (noting that body-cavity searches are not routine border searches).

The dissenting Justice on the Court of Appeals in this case also relies on Salinas. McGee, 23 S.W.3d at 171 (Hudson, J., dissenting). The dissent found it significant that (1) Rowan had probable cause to believe the appellant was hiding drugs between his buttocks, (2) the expedient way to confirm that fact was to conduct an immediate search, and (3) Rowan tried to protect the appellant's privacy by conducting the search at a fire station. Ibid. The dissent explained that it did not think that the search would be any less humiliating if conducted at the jail.

It may be true that the search would not have been any less humiliating if performed at another location. But that is not the appropriate inquiry. What we must decide is whether a routine search incident to arrest permits an officer to perform a body-cavity search. Given the extraordinary and intrusive characteristics of body-cavity searches, I agree with those courts that have found that the Robinson line of cases and the search incident to arrest exception do not authorize body-cavity searches. See, e.g., Swain, 117 F.3d at 6 (and cases cited therein); Commonwealth v. Gilmore, 498 S.E.2d 464, 469 n.3 (Va. Ct. App. 1998) (and cases cited therein).

When a search exceeds the scope of the search incident to arrest, the warrant requirement is reinstated. Coolidge v. New Hampshire, 403 U.S. 443, 484 (1971). Another exception to the warrant requirement must apply to justify a warrantless body-cavity search. We think that the exigent circumstances exception, in the appropriate case, could justify a body-cavity search after an arrest. Cf. Montoya De Hernandez, 473 U.S. at 541 n.4 (justifying strip searches at the border based on reasonable suspicion that suspect has drugs secreted on her person).

In Schmerber v. California, the Supreme Court permitted a warrantless search involving a bodily intrusion on the basis of exigent circumstances. Schmerber, 384 U.S. at 770-72. The case involved the removal of blood from the defendant who had been involved in a collision and arrested for driving while intoxicated. The Court found the search to be permissible because there was a clear indication that the evidence would be found, the officer reasonably could have believed that the evidence would have been destroyed had he sought a warrant, and the search was conducted in a reasonable manner. Ibid.

To decide whether an intrusion is reasonable under the Fourth Amendment, we weigh the particular need for the search against the invasion of personal rights. Bell v. Wolfish, 441 U.S. 520, 559 (1979). A reviewing court looks at the scope of the intrusion, the manner in which it was conducted, the justification for initiating the search, and the place where the search was conducted. Ibid.

Based on these principles, I would hold that a warrantless body-cavity search, even though conducted incident to a lawful arrest, violates the Fourth Amendment unless (1) the police have a clear indication that evidence is located within a suspect's body, (2) the police reasonably believe that the evidence would be destroyed during the delay necessary to obtain a warrant, (2) and (3) the search is conducted in a reasonable manner. See Schmerber, 384 U.S. at 770-71.

In the case before us, Officer Rowan received a tip from a concerned citizen that the appellant and two other men were selling crack cocaine. The citizen gave Rowan the names of the appellant and one other man and a detailed description of the clothing of all three. The citizen also told Rowan that the man later identified as the appellant was hiding the crack cocaine between his buttocks. Rowan was able to confirm much of the information he received in the tip. The three men matched the physical description given by the citizen. The two names provided matched the name of the appellant and one of the suspects. Evidence of drug usage and possession was found in the area. The evidence supports finding a clear indication that drugs would be found where the citizen said the drugs would be. See Schmerber, 384 U.S. at 770-72.

Rowan testified that, after he handcuffed the suspects, he was concerned about transporting the three men in the car together. If one suspect possessed illegal drugs and dropped those drugs in the car, it would be difficult to determine which of the three had possessed the drugs. Even Rowan testified that this was not an emergency situation. And it is standard procedure to call for back-up to transport each suspect separately, as it is standard police procedure to check the patrol car before and after a suspect has ridden in the car. Rowan did not call for back-up officers; he transported the appellant to a fire station and performed a highly intrusive search without a warrant. This record does not support a finding that there was a risk of the destruction of evidence. There was no evidence from which a reasonable officer could conclude that the drugs located between the appellant's buttocks would be destroyed during the time necessary to obtain a warrant. See Schmerber, 384 U.S. at 770-72.

Because no warrant was obtained, and because no exception to the warrant requirement is supported by the record, the visual body-cavity search of the appellant at the fire station was unreasonable under the Fourth Amendment. As the Court of Appeals held, the fruits of the illegal search should have been suppressed. Because I would affirm the judgment of the Court of Appeals, I dissent.

Delivered: April 23, 2003.


1. See United States v. Oyekan, 786 F.2d 832, 839 n.13 (8th Cir. 1986) (stating that "a body cavity search must be conducted consistently with the Schmerber factors"); Giles v. Ackerman, 746 F.2d 614, 616 (9th Cir. 1984) (stating that Schmerber "implies that intrusions into the arrestee's body, including body cavity searches . . . are not authorized by arrest alone"); see also Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997) (stating that "Robinson did not hold that all possible searches of an arrestee's body are automatically permissible as a search incident to arrest"); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991) (stating that "Robinson simply did not authorize" arresting officers to conduct a strip and visual body cavity search); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1271 (7th Cir. 1983) (stating that "the Robinson court simply did not contemplate the significantly greater intrusions that occur[]" in a visual search of an arrestee's anal and vaginal cavities).

Several state courts have similarly concluded that the broad authority of the police to search an arrestee's person incident to arrest is limited by the principles applicable to bodily intrusions set forth in Schmerber. See Commonwealth v. Gilmore, 27 Va. App. 320, 498 S.E.2d 464, 469 (1998); State v. Milligan, 304 Ore. 659, 748 P.2d 130, 135 (Or. 1988); People v. Williams, 157 Ill. App. 3d 496, 510 N.E.2d 445, 447-48 (Ill. App. Ct. 1987); State v. Baker, 502 A.2d 489, 492 (Me. 1985); State v. Clark, 65 Haw. 488, 654 P.2d 355, 361-62 (Haw. 1982); State v. Fontenot, 383 So. 2d 365, 367 (La. 1980).

2. We have concluded that this is an objective, not subjective, standard in the context of an exigent circumstances review. Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998).