Skip to main content

From traffic stop to colonoscopy

By Danny Cevallos, CNN Legal Analyst
updated 8:39 AM EST, Thu November 14, 2013
Police have the right to search for drugs in body cavities if they can get a warrant, says CNN legal analyst Danny Cevallos.
Police have the right to search for drugs in body cavities if they can get a warrant, says CNN legal analyst Danny Cevallos.
STORY HIGHLIGHTS
  • New Mexico man sues, alleges traffic stop led to anal cavity search by police
  • Danny Cevallos says police have the right to search body if they have a warrant
  • Lawsuit says police concluded man was hiding drugs by his posture and by speculation
  • Cevallos: Police need probable cause to get a warrant and typically have immunity from suits

Editor's note: Danny Cevallos is a CNN legal analyst and an attorney practicing in Pennsylvania and the U.S. Virgin Islands.

(CNN) -- All of us as drivers have failed at one point or another to yield at a stop sign. Most of the time we get away with it. Sometimes we get stopped by the police. The punishment usually includes a court date and/or a fine. Sometimes, apparently, it can lead to something much worse. In Deming, New Mexico, according to a lawsuit filed in federal court, failing to yield can lead to ... an anal cavity search.

The shocking allegations of David Eckert's complaint are worth a read, though at least the defendant-prosecutor has denied many of them. The other defendants include the arresting police officers, the hospital and doctors. Irrespective of whether the allegations are ultimately proven, this lawsuit raises some larger questions: How do police get from a traffic stop to a colonoscopy?

The Fourth Amendment protects all citizens from unreasonable search and seizure by the government. It requires that the greater the intrusion upon the person, the greater must be the reason for conducting a search. Is there ever a good reason for this kind of search?

Danny Cevallos
Danny Cevallos

The answer is yes. The police can get access to your most intimate parts and even their interiors. The law is clear: Sometimes a search of one's cavity is justified.

Fortunately, police can't do this on a whim. They need what we call "probable cause" that that part of your body contains contraband. That means a lot more than an arbitrary hunch or guess. Then, beyond that, they have to convince a judge or a magistrate of the likelihood of contraband in your rectum, and that judge has to issue a search warrant independently -- though defense attorneys would argue this is less an independent process and more a one-sided affair.

The only real way around the warrant requirement is an exigency -- that is the evidence is likely to disappear during the delay in securing a warrant. A warrant for an anal cavity search must also provide specifics on the medical procedure to be used to be reasonable.

But the underlying question remains: How were the police in this case able to articulate probable cause for a rectal warrant from a traffic violation?

Bad posture?

According to the complaint, one of the officers noticed Eckert's "posture to be erect and he kept his legs together." It's often said you can read a lot into the way someone carries himself. A lot of people stand different ways. Sometimes it means you have good, militarylike bearing. Other times it means you have a strong back.

To police in this case, apparently, standing erect can mean something else: You may have drugs in your anal cavity. And with that interpretation, police have a starting point for their probable cause to get that warrant. To bolster their probable cause, police also allegedly justified the "search" by citing Eckert's reputation.

A reputation

Perhaps in school you had a friend who had a reputation for being cheap. That's one kind of reputation. To police, according to the complaint, Eckert had a reputation, too -- for carrying around drugs in his rectum.

To most civilians, that doesn't even sound like a kind of reputation. To police, however, that reputation was allegedly further justification for an invasive warrant. It will be interesting to see in this litigation how substantiated this prior reputation was. How does a rumor like this get started?

The police in this case also used a narcotics canine to sniff Eckert's vehicle. The canine apparently alerted police to the driver's seat of Eckert's truck. While courts have held that a police canine alert is sufficient probable cause for a drug search of a car, there is no question that the upholstery of a car seat should not be considered the same as the interior of someone's body cavity.

Even a canine alert of someone's pants area should not automatically constitute probable cause for a colonoscopy warrant. The law is well-settled in this area: For a rectal search, police need a high degree of probable cause and a warrant.

Persistence

Once police were armed with a warrant, Eckert's complaint alleges he was subjected to a prolonged detention, including two trips to different hospitals, two rectal searches, three enemas, two X-rays and a colonoscopy.

At each stage, the complaint alleges, no drugs were found, but according to Eckert, the search continued well into the next day with increasingly invasive procedures.

If anyone other than the police conducted this kind of nonconsensual physical invasion of another's rectum, based upon a posture and a reputation, they'd likely be civilly and criminally liable. But when the police physically invade your person, they often enjoy what's called "qualified immunity" from lawsuits.

To be sure, the idea behind immunity for police action is sound: It would be a massive disincentive to law enforcement if it feared liability over every decision. Generally, police won't be liable for bad searches if they have a good argument for probable cause. Courts will consider whether a reasonably well-trained officer would have known that he failed to establish probable cause and that he never should have applied for the warrant.

As a society, we accept that the police are empowered to invade our privacy in ways members of the public cannot. If they have the requisite probable cause and a warrant, law enforcement has the power to invade our homes, our vehicles, and -- like it or not -- our rectums. This has led many to ask whether the very people entrusted with the power to invade our bodies physically should legally be subjected to more scrutiny rather than general immunity.

Members of the public who are concerned they will be subjected to this kind of cavity search as part of a routine traffic stop can probably rest easy; it appears from the face of the complaint that Eckert was someone who was on law enforcement radar for some time.

Just being "known to" police doesn't justify a cavity search, but it assuages the average citizen that his own body is not a high-value target. But at minimum, Eckert's ordeal may make us all think twice about rolling through that next stop sign.

Follow us @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Danny Cevallos.

ADVERTISEMENT
Part of complete coverage on
updated 5:01 PM EDT, Wed October 22, 2014
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
updated 12:19 PM EDT, Thu October 23, 2014
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
updated 6:35 PM EDT, Tue October 21, 2014
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
updated 9:36 AM EDT, Fri October 24, 2014
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
updated 6:08 PM EDT, Thu October 23, 2014
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
updated 5:54 PM EDT, Thu October 23, 2014
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
updated 12:21 PM EDT, Fri October 24, 2014
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
updated 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 10:14 AM EDT, Thu October 23, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
updated 2:51 PM EDT, Tue October 21, 2014
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
updated 6:07 PM EDT, Tue October 21, 2014
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:05 AM EDT, Wed October 22, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT