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: strip search
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). Continue reading →
It’s a bird, it’s a plane . . . no, it’s a drone over the skies of North Carolina. And soon it may be operated by law enforcement. The News and Observer reports that the General Assembly is poised to enact S 446, which flew through the House yesterday and has been returned to the Senate for concurrence with relatively minor amendments. The bill repeals the prohibition on governmental use of unmanned aircraft enacted in 2013 and authorizes the State’s Chief Information Officer to approve the procurement and operation of unmanned aircraft systems by State agencies and local governments. 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?
This blog post is divided in two parts. This is Part I. Part II will be posted tomorrow.
Introduction. These posts will discuss strip searches by law enforcement officers that usually occur during investigative stops, frisks, arrests, executing search warrants, and related actions. These posts will not include strip searches at jails, which are discussed here by Jamie Markham.
Unlike other Fourth Amendment issues, there have been relatively few appellate rulings on the lawfulness of strip searches by law enforcement officers. Although the United States Supreme Court has ruled on strip searches in jails and schools (see the citations and links to Florence and Safford below), it has not done so with searches by officers, although it once commented in a case involving an unrelated issue that “the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street.” Illinois v. Lafayette, 462 U.S. 640, 645 (1983). Fortunately, there have been several North Carolina cases that offer guidance to officers concerning the legality of these searches. Officers who are unsure about these searches may wish to consult their agency’s legal advisor or other legal resource, particularly because their agency may impose stricter standards in conducting them than permitted by case law.
Definition of strip search. What constitutes a “strip search”? Interestingly, there has not been a precise definition set out by the United States Supreme Court or North Carolina appellate courts. The United States Supreme Court noted in the jail search case of Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510, 1515 (2012), that a strip search is an “imprecise term” and did not choose to define it. See also the school strip search case of Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009). For a North Carolina case noting the lack of a precise definition of a strip search by its appellate courts, see State v. Robinson, ___ N.C. App. ___, 727 S.E.2d 712, 719 (2012).
I will use for this discussion the following definition of a strip search: A strip search generally involves all or part of the following: a removal, pulling down, or rearrangement of some or all of a person’s clothing to provide an outside view of the genital or anal areas or exposure of female breasts, a search of the clothing, or a squat and cough or similar act that requires a person to expose anal or vaginal cavities for visual inspection.
(Note: For a discussion of the legal standards required to justify the more physically intrusive body-cavity search, which involves a digital touching or other probing of the anal or vaginal cavity by another person, see pages 228-29 of Arrest, Search, and Investigation in North Carolina (4th ed. 2011).)
Fourth Amendment privacy interest. The reasonableness of a search under the Fourth Amendment often involves a balancing of the governmental interest in conducting a search with a person’s interest in being left alone by government officials. With strip searches, court cases often recognize that a person has a heightened privacy interest in not being unclothed involuntarily, observed unclothed, or have their private parts observed or touched.
Consent searches. Because a strip search involves an intrusion beyond a typical search of a person’s body, courts carefully examine whether the scope of a person’s consent to search his or her body included a strip search. An example is State v. Stone, 362 N.C. 50 (2007). The defendant was confronted by an officer who recognized the defendant as a drug dealer. The officer asked for and received the defendant’s consent to search after the defendant denied having any drugs or weapons on his person. The officer checked the rear of the defendant’s sweat pants and then moved his hands to the front of the waistband. The defendant said “Whoa” when the officer pulled the defendant’s sweat pants away from his body and trained his flashlight on the defendant’s groin area. The North Carolina Supreme Court ruled that a reasonable person in the defendant’s position would not have understood that his general consent to search allowed the officer to undertake these “very intrusive measures.” The court noted that its ruling is necessarily predicated on the facts and “we observe that different actions by the officer could have led to a different result.” For example, if the officer before or during the intrusive search had made clear to the defendant what the officer was planning to do. Or perhaps if the defendant had not objected by saying “Whoa” during the search.
In State v. Neal, 190 N.C. App. 453 (2008), the North Carolina Court of Appeals distinguished Stone and ruled that the defendant’s consent to search included a strip search. A vehicle was stopped and an odor of marijuana emanated from the passenger side where the defendant had been seated. She consented to a frisk and a search of her purse; no weapons were found but $1,095 in small bills were in her purse. When a canine search of the vehicle passenger area was being conducted, the defendant acted very nervously and fidgeted, often putting her hands in and out of the back part of the waistband of her pants. The officers also noticed a “bulge” in the back of her pants, and she was instructed to keep her hands away from her waistband. An officer informed her that he wanted to conduct a better search to determine what was located in the back of her pants, and he had contacted a female officer for assistance. When asked if she would mind undergoing a “more thorough” search, she responded that she would not. The female officer conducted a strip search in the privacy of a women’s bathroom during which the defendant was extremely cooperative and never expressed any objections. The court noted, unlike Stone, a reasonable person would have understood that the officers intended to conduct a strip search of the defendant.
What do we learn from these consent-to-search cases? A court will look to all the circumstances to determine if the consent to search was voluntarily given, including whether the defendant cooperated during the strip search, and whether a reasonable person would have understood that the scope of the search included a strip search.
If a strip search is not justified by consent, a court may consider whether or not other grounds supported the search. These will be discussed in tomorrow’s post.