Brown v. Polk County

Cite as: 593 U. S. ____ (2021) 1
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
SHARON LYNN BROWN v. POLK COUNTY,
WISCONSIN, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 20–982. Decided April 19, 2021
The petition for a writ of certiorari is denied. JUSTICE
BARRETT took no part in the consideration or decision of
this petition.
Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
Petitioner Sharon Lynn Brown asks this Court to decide
what degree of suspicion the Fourth Amendment requires
to justify the physically penetrative cavity search of a pre-
trial detainee. While Brown was in pretrial detention, offi-
cials at Polk County Jail directed a male doctor to insert a
speculum into her vagina, spread it open, and shine a flash-
light inside to search for contraband. The doctor did the
same to Brown’s anus. The Court of Appeals for the Sev-
enth Circuit held that mere reasonable suspicion justified
this search. That is, for example, the same degree of suspi-
cion required for police to stop someone on the street and
ask a few, brief questions. See Terry v. Ohio, 392 U. S. 1,
21–22 (1968). Brown argues this much more invasive
search required probable cause and a warrant or exigent
circumstances. Those are, by comparison, the same prereq-
uisites for police to draw blood from an unconscious motor-
ist to determine his blood alcohol content. See Mitchell v.
Wisconsin, 588 U. S. ___, ___ (2019) (slip op., at 16).
This petition raises an important question. Nonetheless,
I agree with the Court’s decision to deny certiorari, as “fur-
ther consideration of the substantive and procedural rami-
fications of the problem by other courts will enable us to
2 BROWN v. POLK COUNTY
Statement of SOTOMAYOR, J.
deal with the issue more wisely at a later date.” McCray v.
New York, 461 U. S. 961, 962 (1983) (Stevens, J., statement
respecting denial of certiorari).
It bears emphasis, however, that the degree of suspicion
required for a search should be substantially informed by
the availability of less intrusive alternatives. This Court
does not lightly permit an entire category of warrantless,
invasive searches when less offensive options exist. Partic-
ularly searches of those who have not been convicted of any
crime. The courts below considered no such alternatives
before holding that reasonable suspicion alone justified this
degrading search into Brown’s vagina and anus. Future
courts presumably will not do the same.
I
In May 2017, police arrested Brown for shoplifting and
took her to Wisconsin’s Polk County Jail. The jail’s written
policy at the time permitted officials to direct medical per-
sonnel to perform “an inspection and penetration of the
anal or vaginal cavity . . . by means of an instrument, appa-
ratus, or object, or in any other manner” whenever they had
“reasonable grounds” to believe a detainee was concealing
“weapons, contraband, or evidence,” or otherwise “be-
lieve[d] that the safety and security of the jail would bene-
fit” from such a search. Electronic Case Filing in No. 3:18–
cv–00391 (WD Wis.), Doc. 12–1, pp. 1, 6 (ECF). At least one
correctional officer, respondent Steven Hilleshiem, sought
permission for penetrative vaginal and anal searches “any
time one inmate sa[id] another inmate ha[d] contraband on
their person in a body cavity.” ECF Doc. 14, p. 6, Tr. 19. He
generally would not investigate the tipster’s source, deter-
mine her reputation for honesty, or seek any other indicia
of reliability. Id., at 5–6, Tr. 17–19. In his view, the tip
alone provided “reasonable grounds.” Id., at 7, Tr. 23. The
jail administrator, respondent Wes Revels, similarly
needed only Hilleshiem’s word to approve a search. ECF
Cite as: 593 U. S. ____ (2021) 3
Statement of SOTOMAYOR, J.
Doc. 19, pp. 7–8, Tr. 22–23, 26–28.
A day after Brown’s arrest, two inmates told jail staff that
Brown was hiding drugs in her body. Hilleshiem contacted
Revels, who authorized a cavity search.1 Brown was taken
to the hospital, where a male doctor performed an ultra-
sound that revealed no foreign objects. The doctor then in-
serted a speculum into her vagina, spread open the vaginal
walls, and shined his headlamp inside. He did the same to
her anus. He found no contraband.
Brown testified that, when the doctor removed the spec-
ulum from her anus, “I immediately started crying. I
couldn’t stop. I cried myself to sleep. I cried all the way
back to the jail. I cried the whole time I was getting
dressed.” ECF Doc. 17, p. 32, Tr. 121. When she returned
to the jail, she “asked to stay in the holding cell because
[she] couldn’t quit crying.” Ibid., Tr. 124. This trauma left
Brown with anxiety and depression. She slept just three
hours a night. Id., at 15, Tr. 55. She experienced flash-
backs and feared leaving the house, terrified the police
would pull her over and send her back to jail. Id., at 15, Tr.
53; id., at Tr. 62–63. Nearly two years later, Brown was
still afraid of being alone in a room with a man. Even her
own brother. Id., at 16–17, Tr. 59–61.
Brown sued Polk County, Hilleshiem, Revels, and others,
alleging that they violated her Fourth Amendment right to
be free from unreasonable searches. The District Court
granted respondents’ motion for summary judgment, con-
cluding that a penetrative cavity search of a pretrial de-
tainee requires only reasonable suspicion. The Seventh
Circuit agreed. “[G]iven the heft of the security interest at
stake,” it reasoned, “the invasion to [Brown’s] privacy was
not so . . . grea[t] that it pushes the threshold suspicion re-
quirement into probable cause.” 965 F. 3d 534, 540 (2020).
——————
1 Because it is irrelevant to the question presented, there is no need to
address whether these tips in fact provided reasonable suspicion.
4 BROWN v. POLK COUNTY
Statement of SOTOMAYOR, J.
II
The Seventh Circuit nowhere considered whether some-
thing less intrusive than “prying open [Brown’s] vagina and
anus” was sufficient to ensure jail security. Id., at 541.
That was error. The necessity of a search and its extent
cannot be determined in a vacuum. It must instead “be
judged in light of the availability of . . . less invasive alter-
native[s].” Birchfield v. North Dakota, 579 U. S. ___, ___
(2016) (slip op., at 33). When such an option exists, the
State must offer a “satisfactory justification for demanding
the more intrusive alternative.” Ibid. See also Florida v.
Royer, 460 U. S. 491, 500 (1983) (“[T]he investigative meth-
ods employed should be the least intrusive means reasona-
bly available to verify or dispel the officer’s suspicion”).
This Court has thus held, for example, that the availabil-
ity of a breath test to determine a suspect’s blood alcohol
content makes a blood draw for that purpose unreasonable,
absent a warrant or exigent circumstances. Birchfield, 579
U. S., at ___ (slip op., at 33). Two Members of this Court
have underscored the importance of considering less intru-
sive alternatives in the context of searching pretrial detain-
ees. See Florence v. Board of Chosen Freeholders of County
of Burlington, 566 U. S. 318, 341–342 (2012) (ALITO, J., con-
curring) (“[A]dmission to the general jail population, with
the concomitant humiliation of a strip search, may not be
reasonable” for those who will soon be released, “particu-
larly if an alternative procedure is feasible,” such as sepa-
rating “minor offenders from the general population”); id.,
at 340 (ROBERTS, C. J., concurring) (emphasizing that
“there was apparently no alternative” to housing the ar-
restee with the general population).
This is a sensible rule, particularly where, as here, the
State seeks a categorical exception to the Fourth Amend-
ment’s warrant requirement. If courts permit extraordi-
narily intrusive searches of pretrial detainees without a
warrant, correctional officers may abandon less invasive,
Cite as: 593 U. S. ____ (2021) 5
Statement of SOTOMAYOR, J.
but more burdensome, practices. Likewise, if officers are
free to decide for themselves if they have the requisite de-
gree of suspicion, some may cross the line, even if in per-
fectly good faith.2 See Brinegar v. United States, 338 U. S.
160, 182 (1949) (Jackson, J., dissenting) (“We must remem-
ber that the extent of any privilege of search and seizure
without warrant which we sustain, the officers interpret
and apply themselves and will push to the limit”). The con-
sequences will be borne by both the innocent and the guilty.
Consider Polk County Jail. Its official policy was to per-
form penetrative searches of pretrial detainees’ vaginal and
anal cavities based on mere reasonable suspicion. In prac-
tice, both Hilleshiem and Revels believed that even the bar-
est accusations met that standard, with no corroboration
needed. But see, e.g., Alabama v. White, 496 U. S. 325, 330
(1990) (“[I]f a tip has a relatively low degree of reliability,
more information will be required to establish the requisite
quantum of suspicion”). Anyone could have suffered the in-
dignity of this practice. “If an officer has probable cause to
believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating
the Fourth Amendment, arrest the offender.” Atwater v.
Lago Vista, 532 U. S. 318, 354 (2001). Meanwhile, “crimi-
nal laws have grown so exuberantly and come to cover so
much previously innocent conduct that almost anyone can
be arrested for something.” Nieves v. Bartlett, 587 U. S. ___,
___–___ (2019) (GORSUCH, J., concurring in part and dis-
senting in part) (slip op., at 1–2). An unbuckled seatbelt, a
noisy muffler, an unleashed dog: Any one of countless petty
misdemeanors might land you in jail. See Florence, 566
U. S., at 346–347 (BREYER, J., dissenting). Polk County did
not distinguish between detainees. An unverified charge
——————
2 That said, “the authority which we concede to conduct searches and
seizures without [a] warrant may be exercised by the most unfit and
ruthless officers as well as by the fit and responsible.” Brinegar v. United
States, 338 U. S. 160, 182 (1949) (Jackson, J., dissenting).
6 BROWN v. POLK COUNTY
Statement of SOTOMAYOR, J.
from a stranger with unknown motives could send anyone
to the hospital for a penetrative search, just like Brown.3
Given the degrading nature of the search in this case, less
invasive possibilities abound. The court below did not ad-
dress the option of a solely visual search, see id., at 322, or
multiple visual searches over time. Prison officials could
order an X ray or transabdominal ultrasound, as occurred
here. They could isolate the detainee and investigate fur-
ther to obtain probable cause. They could await a moni-
tored bowel movement. See United States v. Montoya de
Hernandez, 473 U. S. 531, 534–535, 541, and n. 4 (1985)
(upholding prolonged detention of a traveler at the border
reasonably suspected of smuggling contraband in her body);
United States v. Booker, 728 F. 3d 535, 547 (CA6 2013) (dis-
cussing Customs and Border Patrol policy to first “attempt
an x-ray,” then “engage in a monitored bowel movement,”
and “only engage in an involuntary body cavity search after
obtaining a court order”). There are likely many other less
invasive options worth considering.
Some of these searches would be, to different degrees, less
effective than that performed here. As discussed above, this
is not the case to decide whether a penetrative cavity search
is necessarily unreasonable in light of these potential alter-
natives. Going forward, however, courts must consider less
intrusive possibilities before categorically allowing war-
rantless searches. This obligation weighs particularly
heavily for dehumanizing searches of pretrial detainees like
that which Brown endured here.
——————
3 People of color disproportionately bear these burdens. Brown is a
member of the Fond du Lac Band of Lake Superior Chippewa. ECF Doc.
17, p. 17. Native American people are vastly overrepresented in Wiscon-
sin jails and prisons. See Brief for National Alliance to End Sexual Vio-
lence et al. as Amici Curiae 12–13. Native American women, meanwhile,
“experience sexual violence at higher rates than any other population in
the United States.” Id., at 14. Consequently, “non-consensual body cav-
ity searches are more likely to traumatize and retraumatize” Native
American women and their communities. Ibid.