Daily Press, Newport News, Va., Tamara Dietrich column [Daily Press, Newport News, Va.]

Sept. 10--What on earth is up with cops and cavity searches?

For the second time in about a year, Peninsula police officers are embroiled in accusations of conducting a rectal search of a suspect. On a public street.

The first case was dismissed in April on a technicality, and the second incident is so new that police are still looking into it and can't comment.

So, for the moment, we're left to wonder if the accusers are telling tall tales, or officers are a little too quick to snap on the plastic gloves.

Before we get to the nut of the accusations, let's get the nut of the law:

"The circumstances have to be dire for police to conduct a cavity search incident to arrest," Kent Willis, executive director of the ACLU of Virginia, told me Wednesday.

Hear that? Dire.

Specifically, said Willis after consulting recent Virginia case law, a pre-detention cavity search must meet two exigent circumstances: a clear indication that evidence concerning your case is located in a particular cavity, and a belief that the evidence will disappear or that you're somehow in danger.

For police, these criteria are the legal equivalent of flaming hoops to jump through.

In fact, in one Virginia appellate case, even with an informant telling police that contraband was located in a suspect's underwear, and even after a cavity search conducted in private, the search was still declared illegal.

Of course, once you're being locked up, Willis says, jail security kicks in, and a cavity search is permissible.

"But, incident to arrest," he said, and "even in a private place -- the threshold is very high."

Now to the local cases:

Kirby Johnson, 20, of Hampton claimed he was pulled over in the summer of 2007, and that an officer inserted a metal object in his rectum in a futile search for drugs. His $66 million lawsuit against the city was thrown out because it wasn't filed within the two-year statute of limitations.

Now a Newport News School Board member and retired police officer claims her 28-year-old son, Ashley Burnett Jr., was pulled over by Newport News police last Thursday afternoon for interfering with traffic.

A verbal exchange escalated, Priscilla E. Burnett says in a written statement, and her son was arrested. She also claims he was pepper-sprayed and hit with a police baton.

Then, she claims, as her son was standing there handcuffed, a detective pulled on a plastic glove and inserted a finger in his anus.

She says there are witnesses to it all.

Police are investigating and can't comment.

Other aspects of this case, as presented by Ms. Burnett, are troubling. A leg injury she claims her son sustained in the incident wasn't photographed for evidence; a week later he's still being held without bond for obstructing justice, resisting arrest and assault on a police officer, so timely verification is now impossible.

Also, Burnett claims others in the southeast community tell her "young black males downtown have also been subjected to body cavity searches in the street."

I don't believe police chiefs James Fox in Newport News and Charles Jordan in Hampton would sanction body cavity searches conducted cavalierly. Or contrary to the law.

So, either individual officers are taking matters into their own hands, so to speak, and engaging in a pattern of intimidation against a segment of the population, or their accusers are outright lying.

Either way, it's serious business.

It's also your business. For the past several years, state lawmakers have tried to give police the authority to arrest for minor misdemeanors. For now, they can only issues summonses for Class 1 and Class 2 offenses, unless you're drunk, resistant or indicate you won't show up to answer the charge.

The ACLU opposes expanding this authority because it would give law enforcement the discretion to act on any prejudices, consciously or not.

It would also expand their authority to conduct cavity searches -- remember, all an officer needs to snap on the glove is an arrest.

Whether every officer understands the "very high threshold" for that search to stand up in court is another matter.

And, if Burnett's account is accurate, beside the point.

Contact Dietrich at 757-247-7892 or [email protected].

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