WASHINGTON (CN) — Announcing the Supreme Court's rejection of a case where jail officials searched the anus and vagina of an accused shoplifter, Justice Sonia Sotomayor said she did not turn down the case lightly but that the issue requires more input from other courts.
The arrestee Sharon Brown described her ordeal in a petition for certiorari, saying jail officials in Polk County, Wisconsin, had subjected her to the invasive search after her 2017 shoplifting arrest based solely on the speculation of fellow detainees that she was hiding drugs. When a hospital ultrasound detected no foreign objects, the officials then directed a male doctor to don a headlamp and wield a speculum to search her vagina and anus for contraband.
The found nothing, but a federal judge tossed her ensuing civil rights complaint at summary judgment, and the Seventh Circuit affirmed.
“It bears emphasis, however, that the degree of suspicion required for a search should be substantially informed by the availability of less intrusive alternatives,” Sotomayor wrote. “This court does not lightly permit an entire category of warrantless, invasive searches when less offensive options exist. Particularly searches of those who have not been convicted of any crime.”
Drawing upon Supreme Court precedent that, when breath tests are available to determine a suspect’s blood alcohol content, drawing blood is unreasonable absent a warrant or exigent circumstances, Sotomayor wrote that it is important to consider less intrusive alternatives in the context of searching pretrial detainees.
“Given the degrading nature of the search in this case, less invasive possibilities abound," she said. "The court below did not address the option of a solely visual search, or multiple visual searches over time. ... They could isolate the detainee and investigate further to obtain probable cause. They could await a monitored bowel movement.”
Brown’s attorney said Monday that he and his client are disappointed by the court’s denial, highlighting Justice Amy Coney Barrett's need to recuse from the case because of her history on the Seventh Circuit.
“It appears that the prospect of the court having to hear the matter with only eight justices participating weighted heavily against the petition and it is a shame that justice for Ms. Brown and the consideration of this important question were affected by the timing of the matter reaching the Court,” said Vincent Moccio of Bennerotte & Associates. “The dehumanizing search that Ms. Brown was subjected to should always be the search of last resort. Here it was not and we are hopeful that the court will give such guidance to jailors and the lower courts in the future.”
Danielle Tierney of Axley Brynelson, representing Polk County, did not return a request for comment.
While there are no next steps for Brown’s case, Moccio said he thinks the Supreme Court could one day rule on one like it.
“I expect the practice of dehumanizing and humiliating searches in the jail setting will continue in numerous jurisdictions and the question will eventually be taken up by the high court when it believes it is in a position to fully rule on it,” he said.
The case was one of dozens that the Supreme Court turned down in Monday's order list. One case, though, sparked a 9-page dissent, with Sotomayor saying she would have taken up claims by Frederick Whatley who says he was sentenced to death in Georgia as a result of his being shackled during the sentencing phase of his trial.