Strip Searches by Law Enforcement Officers (Part II)

This blog post is divided in two parts. This is Part II. Part I was posted yesterday. That post offered a general introduction, defined a strip search, and discussed the legality of consent searches involving strip searches. This post discusses the legality of nonconsensual strip searches. As mentioned in Part I, strip searches at jails and prisons are discussed here by Jamie Markham and are not the subject of these posts.

North Carolina appellate cases. These cases are discussed in chronological order because they sometimes build upon or distinguish prior cases. The facts in strip search cases are often critical to a court’s ruling, and because of space limitations not all the pertinent facts can be included here, so the reader will need to read the cases to gain a better understanding of the rulings.

The North Carolina Court of Appeals in State v. Smith, 118 N.C. App. 106 (1995), ruled that a search was unreasonable under the Fourth Amendment. However, the dissenting opinion disagreed, and the North Carolina Supreme Court in a per curiam ruling without an opinion, 342 N.C. 407 (1995), reversed the court of appeals and adopted the dissenting opinion, thus upholding the search. Officers had probable cause to believe that the defendant possessed cocaine and specific information that the cocaine would be concealed in or under his crotch. Based on these facts, the dissenting opinion stated that the officers had authority to make a warrantless search of the defendant, including his crotch area, after the officers had stopped the defendant in his vehicle. While blocking the defendant from being seen by the public, an officer pulled the defendant’s underwear down and removed a paper towel that contained cocaine. The opinion noted that the officer took reasonable precautions to prevent public exposure of the defendant’s private areas.

In State v. Johnson, 143 N.C. App. 307 (2001), officers had a search warrant to search a male defendant and his apartment for crack cocaine. The officers required the defendant to remove his clothes and move his genitals and spread his buttocks to exhibit his anal area. The officers saw a piece of plastic protruding from his anus. The defendant removed the package at their request; it contained individually packaged bags of crack cocaine. Two male officers searched the defendant in his bedroom, and they did not touch him. The court upheld the search. Note that in this case the defendant was specifically named in the search warrant as a person to be searched; the court’s ruling may not have upheld the strip search otherwise unless the officers had a basis for believing that illegal drugs or other contraband were concealed in his private areas.

In State v. Battle, 202 N.C. App. 376 (2010), officers received a tip from a confidential informant that three named people were driving to another municipality to obtain cocaine and transport it. After stopping the vehicle, officers searched two male passengers and did not find any illegal drugs. The third passenger, a female, was strip searched by a female officer at the roadside between the vehicle’s open doors—in daylight hours with pedestrians and vehicles in the immediate vicinity and a male officer standing close by with a Taser. The search included pulling her underwear out from her body, which resulted in the discovery of a folded five dollar bill and a crack pipe. The court stated that for a roadside strip search to be constitutional, there must be both probable cause and exigent circumstances to show that some significant governmental or public interest would be endangered if law enforcement officers were required to wait until they could conduct the search in a more discreet location. The opinion concluded there were not exigent circumstances in this case. Although the opinion for the court was that of only one judge of the three-judge panel, later cases of State v. Fowler and State v. Robinson, discussed below, have recognized the opinion as a binding precedent. In addition, Robinson limited the requirement of exigent circumstances for roadside strip searches only to cases in which officers lack a specific basis for believing that illegal drugs, weapons, etc. are located in a suspect’s underclothing.

In State v. Fowler, ___ N.C. App. ___, 725 S.E.2d 624 (2012), the court upheld a strip search after a vehicle stop was supported by probable cause based on an informant’s information that the defendant would be carrying 3 grams of crack cocaine. A consensual search of the defendant’s vehicle produced marijuana but no cocaine. Because the search did not produce the cocaine, the court concluded that the officers had probable cause to believe that the defendant was hiding the drugs on his person, and exigent circumstances supported the search. An officer knew that the defendant had prior experience with jail intake procedures and that he could reasonably expect that the defendant would attempt to get rid of any illegal drugs before getting to the jail. The strip search occurred in a dark area away from the traveled roadway, with no one other than the defendant and the officers in the immediate vicinity. The trial court had found that the searching officer did not pull down the defendant’s underwear or otherwise expose his bare buttocks or genitals—the search of the underwear was done with the officer’s hand. No females were present or within view during the search.

In State v. Robinson, ___ N.C. App. ___, 737 S.E. 2d 712 (2012), the court upheld a strip search. Crack cocaine was found in a car in which the defendant was a passenger, and the defendant possessed a lot of cash. An officer felt something hard between the defendant’s buttocks during a weapons pat down. Based on his training and experience the officer inferred that the defendant may have been hiding drugs in his buttocks. The court found that the officer had an ample basis to believe that the defendant had contraband beneath his underwear and reasonable steps were taken to protect his privacy: the defendant was positioned between a rear door and passenger seat and the officer pulled the waistband of the defendant’s pants and looked inside the rear of the pants, and no one else was present. The court limited Battle’s requirement of exigent circumstances for roadside strip searches to those in which officers do not have specific a specific basis for believing that illegal drugs, weapons, etc., are in a suspect’s underclothing. (Note: There was a dissenting opinion in this case, the defendant filed a notice of appeal to the supreme court, but later withdrew it.)

In State v. Johnson, ___ N.C. App. ___, 737 S.E. 2d 442 (2013), the court ruled that probable cause and exigent circumstances supported a roadside search of the defendant’s underwear for drugs that was conducted after a vehicle stop. It also ruled that the search was conducted in a reasonable manner. There was probable to search because the defendant smelled of marijuana, a drug dog had alerted to the driver’s seat, and during a pat-down the officer noticed a blunt object in the inseam of the defendant’s pants. The officer placed the defendant on the side of his vehicle, with the vehicle between the defendant and the travelled portion of the highway. Other officers stood around the defendant to prevent passers-by from seeing him. Between the defendant’s two pairs of underwear (outer pair of boxer briefs and inner pair of compression shorts) the officer found a cellophane package containing several smaller packages. The court noted that narcotics can be easily and quickly hidden or destroyed, especially after a defendant has notice of an officer’s intent to discover whether the defendant possessed them.

Factors to consider concerning the lawfulness of a strip search. Based on these cases, below are some of the factors to consider when deciding the reasonableness of a strip search under the Fourth Amendment, although any single factor is not necessarily dispositive.

• Did officers have exigent circumstances to conduct a roadside strip search, as opposed to conducting the search in a nonpublic area? But note that exigent circumstances is only required for a roadside strip search (under State v. Robinson) when officers lack a specific basis for believing that illegal drugs, weapons, etc., are present in the suspect’s underclothing.
• Did officers have a specific basis for believing that illegal drugs, weapons, etc., were hidden in the suspect’s underclothing?
• 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?