Visual Body Cavity Searches Get New Test From Second Circuit

Police officers must have a specific, articulable suspicion a suspect is hiding contraband in his person before he may be subject to a visual body cavity search incident to his arrest, the Second Circuit said Dec. 12.

The rule holds true regardless of whether the defendant was arrested for a felony or misdemeanor, the opinion by Judge Rosemary S. Pooler said.

The New York state troopers involved in the search of Maxmillian Sloley nevertheless argued they were entitled to qualified immunity from his civil rights suit. When the search was conducted, the Second Circuit hadn’t held that a visual body cavity search incident to a felony arrest must be supported by reasonable suspicion, they said.

Although the U.S. Court of Appeals for the Second Circuit didn’t have a case squarely on point, precedent from federal district courts within the circuit and the New York Court of Appeals had already adopted the reasonable suspicion test, the appeals court said. The test became binding on the troopers when the New York Court of Appeals adopted it in 2008, it said.

While one trooper was granted immunity, the other must face Sloley’s suit, because the facts showed he only had a “hunch” Sloley was secreting drugs in his anal cavity, the court said.

Judge Jon O. Newman concurred, but wrote separately to stress that the opinion doesn’t announce a general rule that state court decisions can be used to establish qualified immunity in federal cases. The New York Court of Appeals decision cited by the majority was only used as “guidance,” he said.

Dissenting Judge Dennis Jacobs argued that at the time of Sloley’s search federal constitutional law only required reasonable suspicion for a body cavity search in misdemeanor cases. Criticizing the majority’s use of state court precedent in its analysis, he said federal constitutional law will now differ state-by-state within the circuit.

Simpson Thacher & Bartlett LLP represented Sloley.

The case is Sloley v. VanBramer, 2019 BL 475871, 2d Cir., No. 16-4213, 12/12/19.