Published on: Monday, April 19, 2021

Supreme Court Justice Sonia Sotomayor authored a six-page opinion respecting the denial of certiorari on Monday in a case assessing the constitutionality of whether people who are accused of the most minor crimes can be subjected to extremely invasive warrantless searches and traumatized by jail officials. 

Sharon Lynn Brown, a Native American and member of the Fond du Lac Band of Lake Superior Chippewa, was arrested for shoplifting, a misdemeanor, in 2017. Brown was taken to the hospital, where a male doctor performed an ultrasound that revealed no foreign objects. The doctor then inserted 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. The Seventh Circuit Court of Appeals’ opinion relays even more shocking details.

“Given the degrading nature of the search in this case, less invasive possibilities abound,” she said. “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.”

“If courts permit extraordinarily intrusive searches of pretrial detainees without a warrant, correctional officers may abandon less invasive, but more burdensome, practices,” Justice Sotomayor wrote. “Going forward, however, courts must consider less intrusive possibilities before categorically allowing warrantless searches. This obligation weighs particularly heavily for dehumanizing searches of pretrial detainees like that which Brown endured.”