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Search & Seizure – Applicability of Exclusionary Rule – Violation of Nonconstitutional Right – § 968.255 (Strip Searches)

State v. Charles A. Wallace, 2002 WI App 61
For Wallace: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶25. We conclude, however, that we need not address whether police may conduct a consensual strip search free of the statutory restrictions. Absent a constitutional violation, a court may not suppress evidence obtained in violation of a statute except where the statute ‘specifically requires suppression of wrongfully or illegally obtained evidence as a sanction.’ State ex. rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999). Wisconsin Stat. § 968.255 does not require suppression of evidence obtained in violation of its provisions.

A body cavity search is more intrusive than a mere strip search and should be analyzed separately. Nor should it be overlooked that strip searches are themselves governed by the fourth amendment. In effect, § 968.255 imposes certain extra-constitutional protections violation of which, as Wallace holds, isn’t enforceable by the exclusionary rule – but that hardly means that the fruits of strip searches are ipso facto admissible.

Not only should cavity searches be separated out analytically, there will undoubtedly be cases which raise the question of whether a strip search, hence need for heightened review, is actually presented. Definitions, that is, very much matter; see, for example, Commonwealth v. Prophete, Mass. SJC No. 09321, 3/1/05, adopting

definition of a strip search as one in which a detainee is commanded to remove the last layer of his or her clothing. Here, the defendant was ordered to remove his shirt, his shoes, his socks, and his pants. In the last analysis, however, he was not told to remove the last layer of his clothing [i.e., his underpants], and, thus, he was not subjected to a strip search.

And, Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985), as quoted in State v. Jenkins, 842 A.2d 1148, 1156 n.8 (Conn. App. 2004):

‘‘A ‘strip search,’ though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject’s body cavities. A ‘visual body cavity search’ extends to visual inspection of the anal and genital areas. A‘manual body cavity search’ includes some degree of touching or probing of body cavities.’’

For a good overview of strip searches, especially relating to fourth amendment restrictions for minor offenses, see also Nieves v. State, Md. Ct. Spec. App. No. 2003, 12/23/03, affirmed, Md. Ct. App. No. 10, 11/15/04. Among its points:

The issue of strip search is like a pebble in the shoe of the judiciary. Virtually every court that has addressed the issue of the permissibility of a strip search under any circumstances has recognized the extreme intrusiveness of that search beyond a mere search incident to arrest…. The Departmental Rules spell out as clearly as possible when and how to conduct the search in order to eliminate the potential for abuse. Though this is a step in the right direction, there are still the larger issues looming over the whole area of strip searching, such as the meaning of reasonableness and the insuring of seemingly “fragile” privacy rights. Furthermore, there is a presumption against strip searching for minor or traffic offenses, absent some suspicion that the arrestee is in possession of contraband or weapons. … A strip search is permissible only if the official has an individualized suspicion that an arrestee is hiding weapons or contraband. This suspicion must relate to the “individual,” not a “category of offenders,” such as drug users.

When formulating articulable reasonable suspicion, The Departmental Rules provide guidelines as to what factors may be taken into consideration by the arresting officer:

Reasonable suspicion may be based on, but is not limited to:

  • The nature of the offense charged.
  • The arrestee’s appearance and demeanor.
  • The circumstances surrounding the arrest.
  • The arrestee’s criminal record, particularly past crimes of violence and narcotics offenses.
  • The discovery of evidence of a major offense in plain view or in the course of a search incident to the arrest.
  • Detection of suspicious objects beneath the suspect’s clothing during a search incident to arrest.

The Maryland Court of Appeals’ affirmance thoroughly canvasses relevant caselaw – main points: where arrest is for a minor traffic offense unrelated to drugs or violence, you need reasonable suspicion to conduct a strip search incident to arrest; and, something more than the arrestee’s prior drug history is needed for reasonable suspicion. See also, e.g., State v. Edwards, 759 N.E.2d 626, 629 (Ind. 2001) (routine, warrantless strip searches of misdemeanor arrestees, even when incident to lawful arrests, unreasonable); Way v. County of Ventura, 9th Cir No. 04-55457, 4/30/06 (blanket policy of strip searching all drug-offense arrestees before release into general jail population unreasonable); Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001) (misdemeanor arrestee being processed into jail can’t be strip searched, or subjected to visual body cavity inspection, absent reasonable suspicion of concealed weapon or contraband). The 2nd Circuit reaffirmed this point, in N.G. v. Connecticut, 2nd Cir. No. 02-9274, 9/7/04:

However, in several decisions, we have ruled that strip searches may not be performed upon adults confined after arrest for misdemeanors, in the absence of reasonable suspicion concerning possession of contraband…. As far as we can tell, all the circuits to have considered the issue have reached the same conclusion with respect to strip searches of adults confined for minor offenses….

(N.G. followed, Smook v. Minnehaha County, 8th Cir No. 05-1363, 8/9/06.) It is worth stressing the importance not only of the nature of the offense of arrest but also the distinction between a strip-search for evidence and one made pursuant to a jail’s “security and safety” policy. While the authorities above indicate that these concerns are linked, other authority decouples the issues, and reserves the issue of whether a jail requires cause to “lawfully conduct strip searches of person about to become inmates of jail administration,” Evans v. Stephens, 407 F.3d 1272 (11th Cir No. 2005),en banc, reversing panel decision, Evans v. City of Zebulon, 351 F.3d 485 (11th Cir. 2003). But as the en banc Evans goes on to say, in the instance of “a post-arrest investigatory strip search by the police looking for evidence (and not weapons),” the “officer must have at least a reasonable suspicion that the strip search is necessary[.]” More: not only must the police have reasonable suspicion (lacking in Evans’ case, where the arrest was not for drugs), the strip search must be conducted in a reasonable manner, again lacking: “Plaintiffs were taken to and searched in an abnormal place (thus, capable of exciting more fear): a broom closet or supply room, not a dedicated search cell, medical examination room, or even a bathroom…. [¶] The physical aspects of the searches are also disturbing. Unnecessary force was used. [¶] … Stephens used threatening and racist language. We accept that such language has an impact on people and counts towards the unreasonableness of the manner of the searches.” Bear in mind, that Evans nonetheless questions whether a broad policy of suspicionless strip searching when processing arrestees into jail violates the 4th amendment, see, Hicks v. Moore, fn. 5, 11th Cir No. 03-13686, 8/31/05 (court goes on to “accept that a person’s being charged with a crime of violence is sufficient to evoke reasonable suspicion that the person may be concealing weapons or contraband”). But see more recent authority: Powell v. Barrett, 11th Cir No. 05-16734, 9/4/08, en banc (suspicionless strip searches of arrestees when processed into general jail population upheld).

For an example where the court upheld a strip search after not merely finding reasonable suspicion, largely based on arrestee’s nervousness and known drug trafficking, but weighing potential danger against the potential humiliation, see U.S. v. Cofield, 391 F.3d 334 (1st Cir. 2004).

The quantum of belief neccessary to support a strip search – reasonable suspicion vs. probable cause – hasn’t been definitively resolved. The Nieves observation (fn. 4) that the majority rule favors reasonable suspicion is reinforced by Evans; but there is also support for probable cause: Commonwealth v. Thomas, 708 N.E.2d 669 (Mass. 1999) (“probable cause is the appropriate standard to apply to strip and visual body cavity searches”); and Tinetti v. Wittke, 479 F.Supp. 486 (E.D. Wis. 1979), opinion adopted and affirmed, 620 F.2d 160 (7th Cir. 1980):

Accordingly, for the reasons given, this Court declares that the defendants’ subjection of plaintiff, a non-misdemeanor traffic violator incarcerated only due to the inability to post cash bond, to a strip search without probable cause to believe that she was concealing weapons or contraband on her body was a violation of the plaintiff’s rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. Further, this Court permanently enjoins and restrains defendants from undertaking, enforcing, maintaining or adopting any policies, procedure, practices or acts of strip searching persons charged with traffic offenses which are not misdemeanors except where law enforcement officers have probable cause to believe that contraband or weapons are being concealed on the person of the traffic violator.

See also Tardiff v. Knox County, 1st Cir. No. 04-1065, 4/9/04 (“the core notion that some classes of arrestees should not be strip searched without particularized suspicion is now embedded in the case law”), and cases cited, id. n. 1; and Commonwealth v. Prophete, Mass. SJC No. 09321, 3/1/05, citing Commonwealth v. Thomas, 429 Mass. 403, 407-08, 708 N.E.2d 669 (1999) (“probable cause is the appropriate standard that must be met for a strip or visual body cavity search to be constitutionally permissible”).

As indicated by Evans, the fourth amendment “reasonableness” requirement equally regulates the manner in which the search is conducted, apart from individualized belief. Thus, by way of another example, People v. Mitchell, 2003 NYSlipOp 19080, App. Div., 1st Dept., 12/4/03, holds that even after arrest

a strip search, conducted in a public place, regardless of whether it includes a search of the arrested person’s body cavities, is not justified or reasonable absent the most compelling circumstances, that is, circumstances that pose potentially serious risks to the arresting officer or others in the vicinity (accord Illinois v Lafayette (462 US 640, 645 [1983] [“the interests supporting a search incident to an arrest would hardly justify disrobing an arrestee on the street”]).The strip search in this case, conducted as it was on the street, in full view of the public, fails to meet the place or manner component of the Bell v. Wolfish inquiry, and, therefore, the glassine envelopes containing cocaine, obtained as a result of this unlawful search, should have been suppressed.

Seemingly adopting this approach (“must also consider the manner in which the search was conducted”): Paulino v. State, 399 MD 341 (2007) (detailed survey of caselaw; concluding on facts that strip/cavity search incident to arrest was “unnecessarily within the public view and thus violative of the Fourth Amendment”), cert. petitionhereAmaechi v. West, 237 F.3d 356, 364 (4th Cir. 2001) (“we have repeatedly emphasized the necessity of conducting a strip search in private”); U.S. v. Ford, 232 F. Supp. 2d 625, 630 (E.D. Va. 2002) (4th amendment violated because due to “highly invasive search by exposing the defendant’s buttocks on the side of a public highway in broad daylight”); cf.State v. Jenkins, 842 A.2d 1148, 1157 (Conn. App. 2004), though denying relief on contrasting facts (officers took defendant out of public view, and merely pulled underwear away from body rather than requiring removal); State v. Jenkins, FL SCt No. SC06-389, 3/6/08 (albeit in public setting, officer’s merely pulling boxer shorts away from arrestee’s body, incident to arrest, not “strip search,” hence not unconstitutional). For a quick take, to effect that although Mitchell holding “is not already a well-established constitutional principle,” but is nonetheless correct, see Sherry F. Colb, Are Strip Searches Special?. But see: U.S. v. Williams, 8th Cir No. 06-2448 (probable cause-based seizure of drugs from inside underwear, near arrestee’s genitals, in police parking lot reasonable because police “took sufficient precautions to protect Williams’s privacy before fulfilling their legitimate need to seize contraband that Williams had chosen to carry in his underwear”). One court has held that even given ample justification for a strip search, the ensuing “search was unreasonable because a civilian camerawoman with no affiliation with law enforcement was present during and filmed the strip search,”State v. Thompson, Ind Ct. App. No. 49A05-0405-CR-286, 4/7/05. Also see, Campbell v. Miller, 7th Cir. No. 03-3018, 6/28/04, dissent (“That the search of Campbell was conducted in public significantly increases the severity of the governmental intrusion involved here,” with supporting case cites; majority holding turns on separate procedural issue and doesn’t reject, indeed doesn’t discuss, this point). Again: the manner of, as opposed to justification for, a strip search may require separate scrutiny. In contradistinction, visual body cavity and strip searches in a prison setting don’t generally require individualized suspicion, given the institution’s need for security and the inmate’s reduced expectation of privacy (though such searches must still be “reasonably” carried out). People v. Collins, Cal. App. No. B160390, 1/23/04. See also Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697 (7th Cir. 1998) (“given the considerable deference prison officials enjoy to run their institutions it is difficult to conjure up too many real-life scenarios where prison strip searches of inmates could be said to be unreasonable under the Fourth Amendment”); and Jeffrey Whitman v. Nesic and Ellerd, 7th Cir. No. 03-2728, 5/18/04 (strip search as part of prison random drug testing program didn’t violate 8th amendment). For a discussion of strip searches in juvenile detention facilities, see N.G. v. Connecticut, 2nd Cir. No. 02-9274, 9/7/04, including dissent.

 

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