The Court of Appeals just decided State v. Battle, a case about roadside strip searches. It’s an important case for judges, lawyers, and especially officers.
A confidential and reliable informant told police that Battle, her boyfriend, and another man would be going to Durham to buy cocaine, and returning by a specific route in a specific vehicle. Several officers set up along the predicted route, and soon saw the threesome motoring along. They had probable cause to arrest Battle’s boyfriend for a prior drug offense, so they stopped the car and arrested the boyfriend, who was driving. As he exited the vehicle, the officers noticed many small ziploc bags in the driver’s side door. The officers searched the boyfriend and found nothing. They also searched the male passenger and found nothing.
A female officer then searched Battle. Apparently in anticipation of an intrusive search, the officer asked Battle to stand between the opened front and rear passenger doors of the officers’ SUV, and between the body of the SUV and the officer. The officer did a pat-down and found nothing. She asked Battle to pull her bra away from her body and shake the bra; the evidence is conflicting about whether rolling papers fell out of her bra. The officer then opened the front of Battle’s pants, and pulled her underwear away from her body. The officer was able to see Battle’s buttocks and the top of her pubic hair. This revealed a crack pipe and a folded five-dollar bill, inside of which was a small amount of heroin. The officers in Battle testified that men involved in drug offenses often ask their female companions to hold contraband, because most police officers are male and won’t strip search females.
Battle was arrested and charged with possession of heroin and possession of drug paraphernalia. She moved to suppress, but the trial court denied the motion, apparently finding that the search was supported by probable cause. Battle then pled guilty, reserving her right to appeal. The court of appeals reversed. The court’s opinion is 42 pages long, so the following is a condensed version of the court’s reasoning. [Update: One of my colleagues correctly points out that the opinion of the court was not joined by the two judges, other than the author, that heard the case. The other judges agreed with the result, but the apparent disagreement about the proper rationale may limit the precedential value of the Battle opinion.]
1. This was a strip search, although Battle’s pants and underwear were not completely removed or lowered. The buttocks and pubic area are very private and “the scope of the intrusion . . . was great,” regardless of the exact degree of exposure.
2. The search was a “roadside” strip search, not one conducted in private. Although the female officer made some effort to shield Battle from view during the search, the court noted that several vehicles passed by during the search, and that residences and a nursing home were located nearby. On this issue, the court of appeals plainly disagreed with the trial judge, who found that there was no way for anyone but the female officer to see Battle during the search. The court of appeals suggested that it might have viewed the search differently had it been conducted inside the officers’ SUV, in a restroom, or in some other private location.
3. Roadside strip searches require probable cause plus exigent circumstances. I’ll note in passing that I’m confused about the basis for the search. The court of appeals says that it was a search incident to arrest, but it isn’t obvious that there was any basis for arresting Battle prior to the search, and it appears that the trial court found that the search was justified based on probable cause. Regardless of the basis of the search, the court of appeals held that a roadside strip search requires exigent circumstances “that show some significant government or public interest would be endangered were the police to wait until they could conduct the search in a more discreet location.” Possible circumstances include (a) evidence that the person will attempt to destroy evidence in the interim, and (b) evidence that the person will attempt to conceal the evidence in a way that endangers his or her health, e.g., by secreting a controlled substance in a body cavity.
4. There were no exigent circumstances here. There was some evidence in this case that Battle resisted the officer’s attempts to open Battle’s pants, but the court of appeals viewed that as “consistent with a person who is about to have her pants unzipped by a stranger,” not necessarily as evidence of an intent to conceal or destroy evidence. And, since Battle had already been frisked, the court did not think that an immediate strip search could be justified on the grounds that it might uncover a weapon. The court also noted again that the search could have been conducted inside the SUV, which presumably would have involved virtually no delay.
Near the end of the opinion, the Battle court distinguishes State v. Smith, 118 N.C.App. 106 (1995), rev’d for reasons stated in the dissenting opinion, 342 N.C. 407 (1995), in which the state supreme court upheld a roadside strip search of a drug suspect. As the Battle court observes, the showing of probable cause was significantly stronger in Smith. But the distinctions cut both ways: the intrusiveness of the search in Smith was also greater (the police searched under the suspect’s scrotum), and the privacy precautions taken by the officers were lesser (the search took place in the middle of an intersection). The search in Smith did take place late at night rather than during daylight hours, but it was apparently in a fairly busy area, and both the suspect and the officer were concerned about passers-by.
In the end, the court of appeals simply found that the combination of facts and circumstances present in Battle called for a different result than Smith. However, the different results in two relatively similar cases highlights the fact that there are no simple rules and bright lines in this area. Since I started this post by emphasizing its importance to officers, I’ll end with a couple of suggestions for officers considering a roadside strip search: (1) attempt to get the suspect’s consent; (2) if you can’t, consider moving the search into a private location, such as the inside of a vehicle with tinted windows; (3) if that isn’t feasible, proceed only if you have specific reasons to believe that the suspect is concealing evidence in his or her undergarments; and (4) document those reasons, as well as any evidence suggesting that the suspect might destroy evidence or attempt to hide it in a body cavity.