North Carolina Court of Appeals Issues Ruling on a Strip Search by Law Enforcement Officers

In 2013, I wrote two posts on strip searches by law enforcement officers, which are available here and here. This post discusses the first published North Carolina appellate court strip search case since these posts: State v. Collins, 2016 WL 385690 (N.C. App., Feb. 2, 2016).

Collins is only the ninth published state appellate case on strip searches by law enforcement officers. The prior eight cases engendered dissenting or concurring opinions in half of them. Although the United States Supreme Court has decided cases involving strip searches in jails and schools (Jamie Markham wrote a 2012 post on strip searches in jails here), it has not decided a strip search case by law enforcement officers. So it is not surprising that North Carolina’s appellate court justices and judges have been divided on this issue given the lack of guidance from the United States Supreme Court.

Facts and court proceedings in Collins. When officers in Winston-Salem entered a residence on December 13, 2012, to serve an arrest warrant on someone other than the defendant, they smelled the odor of burnt marijuana. When the defendant was located upstairs in the home, an officer smelled marijuana on his person. The officer patted down and searched the defendant, including examining the contents of his pockets; nothing was found. The defendant was then taken downstairs. Although the defendant initially gave a false name to the officers, once they determined his real name, they found out that he had an outstanding arrest warrant from New York for a drug charge. The defendant was wearing pants and shoes but no shirt.

Based on the outstanding warrant for the defendant, the odor of marijuana about his person, and the defendant giving a false name, an officer decided to conduct a strip search of the defendant. He informed the defendant he was going to conduct a strip search and removed the handcuffs in the hope he would cooperate. But the defendant refused to give consent, and he physically resisted by struggling when the officer attempted to remove the belt from his pants. The officer lowered the defendant to the floor and reattached the handcuffs. While doing so and before removing any of the defendant’s clothes, the officer noticed a white crystalline substance consistent with cocaine on the floor where the defendant had been standing. The officer then searched the defendant, pulling down or removing both his pants and underwear. Noticing that the defendant was clenching his buttocks, the officer removed several plastic bags from between his buttocks, two containing what appeared to be crack cocaine and one containing marijuana.

The trial court denied the defendant’s motion to suppress the introduction of the drug evidence seized as a result of the search. The defendant was convicted of various drug offenses and appealed to the North Carolina Court of Appeals, asserting that the trial court erred in denying the suppression motion.

Court’s opinion. The court ruled that because there was probable cause to believe that contraband was secreted beneath the defendant’s clothing (in this respect, the court noted the crystalline substance consistent with cocaine on the floor where the defendant had been standing), it was not required to consider whether the search was “officially” a strip search or to find exigent circumstances before declaring the search reasonable; the court relied on State v. Robinson, 221 N.C. App. 267 (2012). Even assuming that exigent circumstances were required, the court found that exigent circumstances existed, given the observation of what appeared to be cocaine near where the defendant had been standing and the fact that the concealed cocaine may not have been sealed, leading to danger of the defendant absorbing some of the substance through his large intestine. Also, the court noted that the search occurred in the dining area of a private apartment, removed from other people and providing privacy.

A second judge of the three-judge panel concurred in the result only, which typically means that the concurring judge does not necessarily agree with the analysis in the court’s opinion but supports its ultimate ruling (i.e., affirming the trial court’s denial of the suppression motion).

Dissenting opinion. The dissenting opinion concluded that the trial court erred in denying the suppression motion because the officers did not have a justification to conduct the strip search. It stated that the State may not justify the search based on facts acquired after initiating the search, even if the facts became known just before the most intrusive part of the search—the removal or lowering of the defendant’s pants and boxers. (The court’s opinion stated the defendant was procedurally barred from raising this ground on appeal because he failed to properly raise it before the trial court; the dissenting opinion disagreed.) The fact that the officer saw white powder on the floor after attempting unsuccessfully to disrobe the defendant cannot justify the earlier decision to conduct the search. Likewise, it cannot support exigent circumstances or serve as a supporting fact. Without considering the white powder, it was an insufficient justification to conduct the strip search based only on the smell of marijuana, the defendant giving a false name, and the outstanding arrest warrant from New York for a drug offense.

Based on the dissenting opinion, the defendant has a right to appeal the search issue to the North Carolina Supreme Court, so it is likely that there will be another opinion issued in this case.

Factors to consider when conducting a strip search. Reading the analyses of prior strip search cases in the posts linked at the beginning of this post will assist in determining whether a strip search may be legally conducted. Assuming that a strip search is justified, the following factors should be considered concerning how to conduct the search:

  • What efforts were made by officers to shield the suspect from public view and generally to protect the suspect’s privacy?
  • Was the search conducted by an officer or officers of the same sex as the suspect and away from the view of officers of the opposite sex?
  • How intrusive was the search and was it conducted in a reasonable manner?
  • If the search was conducted during the execution of a search warrant, was the suspect named in the search warrant as a person to be searched, and if not, was there a basis for believing that the object of the search was in the suspect’s underclothing?