There was moral outrage aplenty as Charnesia Corley was subjected to being digitally penetrated by a Harris County deputy. Had it been anyone else, a bunch of letters would have been saved by calling it rape, but even though it was nonconsensual and there was assuredly penetration of a vagina, it was not rape. The deputy was otherwise authorized by law to probe.
The search, this time, was for marijuana. After a routine traffic stop for allegedly running a stop sign, a deputy smelled pot. It’s unclear whether it was burned or fresh, but he smelled it. And he knows what pot smells like from “his training and experience,” as is uttered in every suppression hearing. It smells “pungent.” Not poignant, though that will do too.
And that is probable cause. There is no way to capture proof of a smell. It can’t be bottled, tagged and brought into court. But a cop smelling pot is good enough to search a car, because the cop said so and the automobile exception to the Fourth Amendment.
When the deputy searched Corley’s car and came up empty, he was left with a dilemma. Where could the pot be that he smelled? Now it could well be, assuming it was unburned marijuana (because burnt pot raises different possibilities), that there had been pot in the car another day, and its smell lingered. Or it could be that it wasn’t the smell of pot at all. There are plenty of other cut flora that emit similar odors, though police deny this possibility on the witness stand.
Or it could be that the deputy was lying through his teeth, and didn’t smell pot at all. He just wanted a reason to search, and claiming to smell pot gave him carte blanche to look and see what he could find. Of course, this isn’t a ploy that will work forever.
Tell a judge that you thought you smelled pot 50 or 60 times, when you found a gun, or meth, or cash, or anything but pot, and there’s a possibility that the judge will start thinking you’re making stuff up and give the cop a stern lecture about not using the pot claim to get a free search, while admitting what was found into evidence.
But the deputy here claimed to be certain he smelled pot, and if not in the car, where else could it be? Vagina. People do secrete things in there, not to mention their anus as well. Not your thing? So what? Other people do stuff you wouldn’t do, and that includes hiding illegal drugs in a vagina.
It’s not as if the deputy used this as an excuse to search a vagina for kicks. He called in female deputies to conduct the actual search. They were made aware of the fact that Corley found the search objectionable, so there could be no doubt as to her lack of consent to the cavity probe, and they went in search of pot.
Radley Balko raises the obvious moral objection.
So Corley was forced to the ground, stripped, and penetrated to search for evidence that at worst would have amounted to a misdemeanor. Which means that the Harris County Sheriff’s Department believes its perfectly acceptable to allow a stranger to forcibly probe a woman’s vagina in order to prevent her from possessing a personal-use quantity of marijuana. And even that happened without a warrant, based only on one deputy’s claim to have smelled the drug.
What was even more shocking was the Harris County Deputy didn’t try to spin it to deflect this outrage.
Incredibly, a spokesperson for the Harris County Sheriff’s Department told a local TV station that “the deputies did everything as they should.” And so there you have it. Holding a woman down and forcibly penetrating her vagina to search for pot is official policy in Harris County.
Texas’s legislators and governor approved the law in June, making it so “a peace officer may not conduct a body cavity search of a person during a traffic stop unless the officer first obtains a search warrant pursuant to this chapter authorizing the body cavity search.” But the measure doesn’t take effect until September.
So until September, this is a perfectly proper search. After September, they will delay the search until a phone call secures a warrant based upon the deputy’s smell. The warrant will come. The probe will happen. But at least the warrant will give the entry into a vagina the imprimatur of official justice, which makes rape a ton more acceptable. It’s not like a cop said so, but a judge said okay when a cop said so, which makes a stranger’s entry into a body cavity entirely different.
But the hard part to understand for most is how it’s come to this, where a cop, with or without a judge nodding her head, gets to stick things into people’s bodies. It happens with needles, with fingers, whether cops or docs, whether gloved or “commando.” It happens.
It happens because we create a mechanism with tiny baby steps that make complete sense at the time, but the rationale of which extends, ever so slightly, beyond the specific facts before a court. The automobile exception, a hole in the Fourth Amendment through which a Mack truck could be driven, allows for searches upon probable cause of automobiles because a criminal could, if no search was permitted, drive away and never get caught.
The Supreme Court has decided that allowing a criminal to drive away with contraband hidden in a car is untenable given the societal need to prevent crime. And if they can search a car, they can search sealed containers within the car, because when the car drives away, those containers will go with it. And what’s a body cavity but a container made of flesh and yucky stuff. Search it.
Probable cause is a very low standard. It’s misnamed, as it’s hardly probable, though it should be. A cop with half a brain and a moderately glib tongue can come up with probable cause whenever he needs to. The courts know this, but they believe cops even when there is no objective, preservable evidence to justify the search. It’s just a matter of choosing which horse to back, and they long ago picked law enforcement.
And from law created in 1924 in Carroll v. United States, based on the need to stop whisky in cars, Harris Count deputies lawfully inserted their fingers in Charnesia Corley’s vagina on the side of the road. At the time of Carroll, no justice would have believed that it would end up with a deputy’s finger in a woman’s vagina or a man’s anus. Such a result would have been ridiculed as unthinkable. Yet, here we are.
This is why a battle is waged on two fronts, challenging the logical extreme application of laws never intended to permit such offensive conduct at its initiation, and challenging new laws that will eventually reach their logical extremes and do unintended, unacceptable harms despite their proponents’ cries that it could never happen.
It can. It does. All the time. And it’s not just the moral outrage of a finger in the vagina of an innocent woman, but the potential death of a woman who didn’t comply. Yet neither court nor advocates admit to where their notions to protect society will end up when it’s hit the bottom of the slippery slope.