, No exception to the warrant requirement based on exigency can be gleaned from the facts and circumstances of this case. See State v. Clark, 65 Haw. 488 , 494, 654 P.2d 355 , 360 (1982) (generally defining an exigency as "when the demands of the occasion reasonably call for an immediate police response”). Nor has the State argued that an exigency is present.
We likewise believe that, at least with regard to the fourth amendment, the rights of persons not yet convicted of crimes must be more closely scrutinized than the rights of prisoners. See generally State v. Clark, 65 Haw. 488, 498 n. 11, 654 P.2d 355, 362 (1982) (distinguishing pre-incarceration searches of arrestees from those of prisoners entering the main prison). This hesitancy is shared by most other courts, which have ruled that prisoners are not completely devoid of fourth amendment protection.
Therefore, a body cavity inspection cannot be justified by a lesser standard than that applied in Schmerber for a blood test"]; cf. United States v Oyekan, 786 F2d 832, 839 n 13 [8th Cir 1986] ["We believe a body cavity search must be conducted consistently with the Schmerber factors, even though such a search does not technically require piercing the skin, because both the degree and kind of intrusion involved are of analogous proportions"]). Indeed, it is indisputable that visual body cavity searches are degrading, humiliating, and frightening ( see Campbell v Miller, 499 F3d 711, 718 [7th Cir 2007], quoting Mary Beth G. v City of Chicago, 723 F2d 1263, 1272 [7th Cir 1983] ["strip searches involving the visual inspection of the anal (and genital) area(s) are 'demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, (and) signify() degradation and submission'"]; State v Clark, 65 Haw 488, 497, 654 P2d 355, 362 ["It is humiliating and degrading to be forced to totally expose one's self to a total and hostile stranger"]; Bell v Wolfish, 441 US 520, 576-577 [1979, Marshall, J., dissenting] [visual body cavity searches "represent one of the most grievous offenses against personal dignity and common decency"]; accord More, 97 NY2d at 213 [body cavity searches incident to arrest are "invasive" and "degrading"]). Logically then — because we adopted the Schmerber test in More — our state's citizens should be entitled to as much protection from warrantless visual body cavity searches as they are from a common blood drawing procedure that "involves virtually no risk, trauma, or pain" ( see Schmerber, 384 US at 771).
This court recognizes exceptions to the warrant requirement in "those cases where the societal costs of obtaining a warrant, such as . . . the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." Id. (quoting State v. Clark, 65 Haw. 488, 494, 654 P.2d 355, 360 (1982)). One such legally recognized exception is exigent circumstances.
[A]ny warrantless search of a constitutionally protected area is presumptively unreasonable unless there is both probable cause and a legally recognized exception to the warrant requirement. [ State v.] Bonnell, 75 Haw. [124,] 137, 856 P.2d [1265,] 1273 [(1993)]; see also State v. Propios, 76 Haw. 474, 477, 879 P.2d 1057, 1060 (1994); State v. Perham, 72 Haw. 290, 292, 814 P.2d 914, 915, reconsideration denied, 72 Haw. 616, 841 P.2d 1074 (1991); State v. Wiley, 69 Haw. 589, 591, 752 P.2d 102, 103 (1988); State v. Ritte, 68 Haw. 253, 256-57, 710 P.2d 1197, 1201 (1985); State v. Barrett, 67 Haw. 650, 653-54, 701 P.2d 1277, 1280 (1985); [ State v.] Fields, 67 Haw. [268,] 281, 686 P.2d [1379,] 1384 [(1984)]; State v. Ortiz, 67 Haw. 181, 184, 683 P.2d 822, 825 (1984); State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 561 (1984); State v. Clark, 65 Haw. 488, 493, 654 P.2d 355, 359-60 (1982); State v. Kaluna, 55 Haw. 361, 363, 520 P.2d 51, 55 (1974). "In general, these exceptions provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate."
That being the case, any warrantless search of a constitutionally protected area is presumptively unreasonable unless there is both probable cause and a legally recognized exception to the warrant requirement. Bonnell, 75 Haw. at 137, 856 P.2d at 1273; see also State v. Propios, 76 Haw. 474, 477, 879 P.2d 1057, 1060 (1994); State v. Perham, 72 Haw. 290, 292, 814 P.2d 914, 915, reconsideration denied, 72 Haw. 616, 841 P.2d 1074 (1991); State v. Wiley, 69 Haw. 589, 591, 752 P.2d 102, 103 (1988); State v. Ritte, 68 Haw. 253, 256-57, 710 P.2d 1197, 1201 (1985); State v. Barrett, 67 Haw. 650, 653-54, 701 P.2d 1277, 1280 (1985); Fields, 67 Haw. at 281, 686 P.2d at 1384; State v. Ortiz, 67 Haw. 181, 184, 683 P.2d 822, 825 (1984); State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 561 (1984); State v. Clark, 65 Haw. 488, 493, 654 P.2d 355, 359-60 (1982); State v. Kaluna, 55 Haw. 361, 363, 520 P.2d 51, 55 (1974). "In general, these exceptions provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate."
"[T]hese exceptions provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." State v. Clark, 65 Haw. 488, 494, 654 P.2d 355, 360 (1982) (citation and internal quotation marks omitted); see also State v. Ritte, 68 Haw. 253, 257, 710 P.2d 1197, 1201 (1985) (probable cause and exigent circumstances); Fields, 67 Haw. at 283, 686 P.2d at 1383-84 (probationary status); State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 561 (1984) (consensual searches); State v. Paahana, 66 Haw. 499, 505-06, 666 P.2d 592, 597 (1983) (search incident to arrest); Clark, 65 Haw. at 498, 654 P.2d at 362 (preincarceration searches); State v. Kapoi, 64 Haw. 130, 140, 637 P.2d 1105, 1113 (1981) (open view); State v. Faulkner, 64 Haw. 101, 106-08, 637 P.2d 770, 774-75 (1981) ("automobile exception"); State v. Bennett, 62 Haw. 59, 610 P.2d 502 (1980) (stop and frisk); State v. Powell, 61 Haw. 316, 603 P.2d 143 (1979) (plain view). B. The Open View and Plain View Doctrines
State v. Rosborough, 62 Haw. 238, 240, 615 P.2d 84, 86 (1980); State v. Kaluna, 55 Haw. 361, 363, 520 P.2d 51, 55 (1974). The government must show that the facts of the case justified the police searching without a warrant and that the search itself was no broader than necessary to satisfy the need which legitimized the departure from the warrant requirement in the first place. State v. Clark, 65 Haw. 488, 493, 654 P.2d 355, 359-60 (1982); Kaluna, 55 Haw. at 363, 520 P.2d at 55. The justifications to support warrantless searches have coalesced into "a few specifically established and well-delineated exceptions."
Neither can the search be justified as a search motivated by "exigent circumstances," as claimed by the State in the suppression hearing. In State v. Clark, 65 Haw. 488, 654 P.2d 355 (1982), we noted that the exception for searches incident to a lawful arrest was closely related to the more general exception for searches motivated by exigent circumstances. In essence, the exception for searches incident to a lawful arrest "implies the exigent circumstances of imminent danger to the arresting officer or others and of imminent concealment or destruction of evidence or the fruits of the crime from the circumstances of a lawful arrest."
Accordingly, "warrantless searches are invalid unless they fall within narrowly drawn exceptions."State v. Mahone, 67 Haw. 644, 646, 701 P.2d 171, 173 (1985) (citation omitted). The burden of proving that the search was reasonable is borne by the State. State v. Clark, 65 Haw. 488, 493, 654 P.2d 355, 359 (1982). On appeal, the State seeks to justify the searches of Vinuya's home and bedroom by invoking the consent exception to the warrant requirement.