California Penal Code Section 4030 - Interpretation

Penal Code section 4030, subdivisions (d)(3) and (h), require that a warrant be secured before performing a "physical body cavity search" on a person arrested for a misdemeanor or an infraction. The warrant requires "reasonable suspicion based on specific and articulable facts to believe such person is concealing a weapon or contraband . . . ." (Id., subd. (f).) In People v. Wade (1989) 208 Cal.App.3d 304, a defendant who appeared to be under the influence of narcotics during a traffic stop for an expired registration was taken to the police station where he was asked to pull down his trousers and spread his buttocks. An officer saw a plastic object protruding from the defendant's anus. Another officer, wearing rubber gloves, spread the defendant's buttocks, causing the bindle to fall to the floor. (Id. at pp. 306-307.) After noting that Penal Code section 4030 was not the basis for an exclusionary rule, the Wade court continued: "Use of the federal exclusionary rule has been discussed in scores of cases involving physical searches. For example, in Rochin v. California (1952) 342 U.S. 165, the Supreme Court emphasized the importance of a case-by-case balancing test to determine whether an invasion into a suspect's body 'shocks the conscience' citation or involves 'methods too close to the rack and the screw to' be tolerated. There, officers forcibly entered the defendant's bedroom, jumped on him in an unsuccessful effort to force expectoration of morphine capsules he swallowed, and finally retrieved the contraband by having his stomach pumped at a hospital. The court determined this episode offended 'even hardened sensibilities' and suppressed the evidence. In Winston v. Lee (1985) 470 U.S. 753 , the court concluded a proposed surgery under general anesthesia to remove a bullet from the defendant's chest without his consent would not be tolerated. The decision set forth various factors which should be considered, including 'the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity' and 'the community's interest in fairly and accurately determining guilt or innocence.' This case Wade pales by comparison with Rochin and Winston: the body search was brief, nonviolent, minimally intrusive, and not conducted in a grossly offensive manner." (People v. Wade, supra, 208 Cal.App.3d at pp. 308-309.)