Most search warrants are for homes or offices. Some are for vehicles. Less often, a search warrant is for a person. See generally G.S. 15A-241 (defining a search warrant as an order authorizing the search of “designated premises, vehicles, or persons”). When a search warrant authorizes the search of a person, how intensive may the search be? Specifically, may the executing officer conduct a strip search? Continue reading
Tag Archives: johnson
That’s my take-away from State v. Johnson, decided by the court of appeals last week. Continue reading →
Category: Motor Vehicles, Search and Seizure, Uncategorized | Tags: court of appeals, fishtail, johnson, reasonable suspicion, speeding, unsafe movement
Two new cases from the court of appeals, both involving defendants named Johnson, shed more light on the meaning of “absconding” from probation. Continue reading →
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?
Category: Search and Seizure, Uncategorized | Tags: battle, fourth amendment, fowler, johnson, robinson, Search and Seizure, strip search
Yesterday, I wrote about a pair of recent cases about weaving within a lane of travel. Today, I want to mention another pair of recent cases related to automobiles. Last month, the court of appeals decided, on the same day, two cases that address the scope of a suspect’s consent to search a vehicle. In State v. Lopez, __ N.C. App. __, __ S.E.2d __ (Feb. 21, 2012), an officer stopped a vehicle for speeding. One thing led to another, and the officer came to suspect that the driver was involved in the drug trade. The officer asked for, and received, consent to search the defendant’s vehicle. The officer didn’t just search the interior of the vehicle. He also opened the hood and “released several clips or latches” securing the air filter compartment, eventually finding cocaine in that compartment. The defendant argued that the officer’s conduct exceeded the scope of the consent, making an analogy between the air filter compartment and a closed container. The court of appeals ruled otherwise, stating that “both the hood and air filter compartment are part of the vehicle,” and observing that the defendant did not specifically exclude those areas from his consent.
The second case is State v. Schiro, __ N.C. App. __, __ S.E.2d __ (Feb. 21, 2012). In that case, officers stopped the defendant, obtained consent to search the defendant’s car, and eventually found a gun that had been used in a murder. The gun was found behind some trim in the vehicle’s trunk, and the defendant argued that his consent to search did not allow the search to be so intrusive. The trial court found that the vehicle’s rear quarter panels were fitted with carpet-over-cardboard interior trim and that the trim pieces “were loose,” suggesting that the search, while thorough, did no harm to the vehicle and was therefore permissible. The trial court also noted that the searching officer “was easily able to pull back the . . . trim.” The court of appeals agreed that, on those facts, the search did not exceed the scope of the defendant’s consent.
The Schiro court explicitly distinguished State v. Johnson, 177 N.C. App. 122 (2006), where “a plastic wall panel was removed by a law enforcement officer from the interior of defendant’s van, thereby facilitating discovery of . . . cocaine.” Johnson effectively holds that when a person gives an officer consent to search his vehicle, he should expect a “thorough” search but not “the destruction of his vehicle, its parts or contents.” The federal courts have likewise generally drawn the line at damaging the vehicle. See, e.g., United States v. Gonzalez, 512 F.3d 285 (6th Cir. 2008) (“Applying an objective reasonableness standard, we agree that [the defendant’s] consent to search could not be reasonably understood as authorizing [the officer] to damage the van.”); United States v. Alverez, 235 F.3d 1086 (8th Cir. 2000). Judges, lawyers, officers, and motorists should all be aware that consent to search a vehicle will normally be interpreted to include any part of the vehicle that can be accessed without damage.
Category: Motor Vehicles, Search and Seizure, Uncategorized | Tags: consent, johnson, lopez, schiro, scope of consent, vehicle
Because our appellate courts often find the Fourth Circuit’s opinions to be persuasive authority, I read all the Fourth Circuit’s published criminal cases. Yesterday, the court decided United States v. Johnson, a drug case involving two noteworthy issues.
The short version of the facts is as follows: Officers wiretapped a suspected drug dealer’s phone. The suspect had several conversations with the defendant. The conversations consisted of slang that the officers interpreted as evidence of a drug conspiracy. The defendant was arrested and charged accordingly, and the case proceeded to trial. The government’s evidence consisted largely of (1) the recorded conversations, plus testimony from an officer about the meaning of the slang used in the recordings, and (2) evidence about the defendant’s prior drug activity, admitted under Fed. R. Evid. 404(b). The defendant was convicted and appealed, but the Fourth Circuit reversed.
First, it found that the trial court erred in admitting the officer’s testimony. It reasoned that (a) the officer was not offered as an expert, so his testimony was admissible, if at all, as lay opinion under Fed. R. Evid. 701; (b) Rule 701 allows lay opinion only if it is based on a witness’s personal knowledge and observations; and (c) the officer testified that he knew the meaning of the slang based on his training and experience, not his personal observations. Thus, his testimony was “expert testimony dressed in lay witness clothing,” and was inadmissible.
Despite that characterization, the court stated that the testimony would not have been admissible as expert testimony under Rule 702, either. Although several prior Fourth Circuit cases — cited in the opinion — allow officers to testify as experts regarding the drug trade and the language used therein, they may do so only when they can show that “reliable principles and methods” support their testimony. In this case, the officer did not testify in any detail about his principles and methods, and indeed, the government admitted that the phrases he interpreted were not “typical drug code” and did not have a fixed meaning in the drug world. (For example, the officer testified that “I’m going to hit you and let you know what’s happening” meant “when [I am] able to obtain cocaine, [I]’ll let [you] know so [you] can purchase it.”)
I don’t know of a North Carolina case that analyzes this issue in as much detail. I found several cases in which an officer testified in passing about the meaning of a term, but these cases do not focus on the propriety of such testimony. See, e.g., State v. Mackey, 352 N.C. 650 (2000) (officer explains that to be “looking” is “terminology indicating a desire to purchase drugs”). The most relevant case may be State v. Hargrave, __ N.C. App. __, 680 S.E.2d 254 (2009), in which the court of appeals held that officers properly gave lay opinion testimony that “the cocaine [found near the defendant] was packaged as if for sale and that the total amount of money and the number of twenty-dollar bills found on defendant were indicative of drug sales.” The court concluded that the testimony was based on the officers’ “personal experience” and “personal knowledge of drug practices.” I suspect that our appellate courts would view most testimony about drug-related slang, when offered by an experienced officer, as similarly grounded in the officer’s knowledge of the drug trade.
Of course, the line between an officer’s personal experience and her “training and experience” — which the Johnson court found to be an improper basis for lay opinion testimony — is not a sharp one. My sense is that the key to Johnson was not so much the specific theory of admissibility as it was the government’s concession that the terms at issue there were not typical drug code, and lacked any fixed meaning in the drug business. That concession calls into question the relevance of both the officer’s “training” and his “experience.” In effect, the officer was trying to translate a language that the government admitted he did not speak.
The second issue in the case was the Rule 404(b) issue. One of the government’s witnesses was an inmate who claimed that he had purchased drugs from the defendant nearly ten years earlier. The court ruled that this evidence should not have been admitted to show the defendant’s intent and knowledge. It found the prior conduct insufficiently relevant given the lack of connection in “time, pattern, or state of mind” between the earlier transactions and the charged offenses. This Rule 404(b) analysis is routine, and is similar to how North Carolina courts would address the same issue. Yet the case is noteworthy because the court found admission of the evidence to be reversible error even though the the trial judge had given a limiting instruction about the purpose for which the jury was permitted to consider the evidence. The Fourth Circuit has often placed considerable faith in limiting instructions, see, e.g., United States v. Johnson, 587 F.3d 625 (4th Cir. 2009) (expressing the court’s “presum[ption] that juries follow such instructions”), making this aspect of the opinion somewhat surprising.
On June 1, 2010, the N.C. Court of Appeals applied Arizona v. Gant in State v. Johnson and held that the defendant’s Fourth Amendment rights were violated when the police searched his vehicle incident to his arrest. There is nothing particularly significant about that holding, as it involved a fairly straightforward application of Gant. However, one aspect of the holding already has generated some traffic on my phone line. Specifically, in its decision, the court stated: “because [Gant] applies retroactively, we conclude that the warrantless search of the defendant’s car following his arrest . . . was unconstitutional.” (emphasis added). My callers have been asking: “Does this mean Gant applies retroactively to cases for which the direct appeal process ended years ago?” The answer to that question is no; Johnson didn’t hold that Gant applies retroactively to cases that became final before Gant was decided.
As I discuss in much more detail in a paper here, retroactivity, as it applies to judge-made rules, is a term referring to a new rule of criminal procedure that applies to cases that became final before the decision adopting the new rule was rendered. Notwithstanding the Johnson court’s use of the term “retroactively,” retroactivity wasn’t at issue in that case. [editor’s note: my summary of Gant is here, and my discussion of Gant and retroactivity is here.]
Consider the procedural history of the case:
| July 8, 2008 | Trial court denies defendant Johnson’s motion to suppress |
| Jan. 13, 2009 | Defendant pleads guilty, preserving the right to appeal the denial of his suppression motion |
| Jan. 14, 2009 | Defendant files notice of appeal |
| April 21, 2009 | Gant is decided |
| June 1, 2010 | Court of Appeals’ decision on Johnson’s direct appeal is issued |
As is readily apparent, Gant was decided while Johnson’s appeal was pending. Gant thus applies to Johnson’s case under clearly established law that new judge-made rules of criminal procedure apply to all cases pending and not yet final on appeal at the time the decision was rendered. In fact the Johnson opinion recognizes this when it states: “Gant applies retroactively to this case, since this case is currently on direct review, and is not yet final.” (Slip op. at 11-12 (citing Griffin v. Kentucky, 479 U.S. 314 (1987)). Although the court’s repeated use of the word “retroactively” initially may create confusion, a careful look at the case’s procedural history makes clear that Johnson was not a case in which Gant was applied to a conviction that was final when Gant was decided. In order for a court to apply Gant in that way, it would have to conclude that the case warrants retroactive application under the Teague retroactivity standard. The United States Supreme Court has not had occasion to apply the Teague test to the Gant rule. Nor did Johnson do so. More information on the Teague retroactivity test is provided in the paper mentioned above.
