FILED
Jul 29 2016, 8:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Patricia Caress McMath
Attorney General of Indiana Marion County Public
Eric P. Babbs Defender Agency
Deputy Attorney General Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, July 29, 2016
Appellant-Plaintiff, Court of Appeals Case No.
49A04-1512-CR-2173
v. Appeal from the Marion Superior
Court
Dejon Pitchford, The Honorable John M. Christ,
Appellee-Defendant Commissioner
Trial Court Cause No.
49G14-1505-F6-017468
Mathias, Judge.
[1] The State of Indiana appeals the order of the Marion Superior Court granting a
motion filed by Dejon Pitchford (“Pitchford”) to suppress evidence discovered
as a result of a warrantless strip search of Pitchford in jail. The State claims that
the trial court erred in concluding that the search of Pitchford was
impermissible under Article 1, Section 11 of the Indiana Constitution.
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[2] We affirm.
Facts and Procedural History
[3] Both parties agree as to the relevant facts. Pitchford was arrested on a
preliminary charge of battery on May 8, 2015. After his arrest, Pitchford was
taken to the Marion County Arrestee Processing Center. Marion County
Sheriff’s Deputy Mark Bunch (“Deputy Bunch”) was acting as the “search
deputy” that day. Pursuant to department policy, Deputy Bunch conducted a
strip search of Pitchford because he had been arrested for battery, which Bunch
testified was considered to be a “crime of violence.” Tr. pp. 10, 24-25.
[4] The relevant portion of the Sheriff’s policy provides:
1. Before a strip search is performed, certain criteria shall be
met. Strip searches shall be authorized only under the following
circumstances:
a. There is reasonable suspicion that the arrestee possesses a
weapon, drugs, or contraband.
b. Current charge(s) for escape, possession of drugs, weapons
or crimes of violence;
c. Refusal of a pat search;
d. Discovery of weapons, drugs, or contraband during a pat
search;
e. Alerted by alarm on the magnetometer;
NOTE: If a strip search is indicated due to a walk-through
magnetometer alarm during a pat search, the use of a
hand-held magnetometer should be used, if available, to
determine if surgically implanted metals, etc., caused the
alarm prior to initiating a strip search.
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f. Reliable information that the arrestee possesses a weapon,
drugs, or contraband;
g. The arrestee is a fugitive or a detain order exists (hold) for
any of the above listed offenses; or
h. Contact with the public or exposure to a public area after
arrest.
2. If a pat search has not been completed, a thorough pat search
shall be performed while arrestee is still handcuffed and before
proceeding to the Search Room where the strip search is to be
conducted.
3. Deputies of the same gender as the person to be searched shall
perform strip searches. The Deputy performing a strip search
shall not touch the arrestee unless there is an officer safety issue
or the arrestee becomes combative.
4. The Deputy that performs the search shall Sign the OAR as
the “Search Deputy.”
Ex. Vol., State’s Ex. 1., pp. 5-6. Pursuant to the policy, the strip search
consisted of an “inspection of the genitalia, buttocks, breast, or undergarments
of an arrestee, that is preceded by the removal of, or rearrangement of, some or
all of the person’s clothing that directly covers the person’s genitalia, buttocks,
breast, or undergarments.” Id. at 1.
[5] Deputy Bunch explained the actual process of the strip search as follows:
A strip search is conducted after an initial pat search is done
while the arrestee is still in handcuffs. And then after the arrestee
is pat searched, they’re walked through a metal detector. And
after that, they go back into the strip room where the strip search
is proceeded.
Initially, the process would be to remove outer clothing. I usually
start with the top, like a shirt.
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And then after the clothing is removed, I -- as far as like the shirt,
I would have the arrestee turn the article of clothing inside out to
make sure that there’s nothing on the inside of the clothing. And
that’s the same process for any additional clothing.
As far as pants, I would go through the pants or shorts, whatever
they have on. And then the same process for all those clothings.
The socks would then be removed. The underwear would be
removed.
And then after all of that, then I would then begin the rest of the
strip search which would include to have the arrestee open their
mouth, lift their tongue up, and make sure there’s nothing under
the tongue, and to lift the top and bottom lips.
And after that, I would then ask them to raise their arms so I
could see their armpits.
After that, I then would have him, being a male, lift their testicles
up to make sure there’s nothing being hidden there.
And then after that, I would have them turn around, face the
wall, put their hands on the bar that’s inside of that room. It’s
like a railing. And then with their hands on the bar, I would have
them raise one foot at a time to show me that there’s nothing on
the bottoms of their feet.
And then with their hands still on the railing, I would have them
squat down. usually just tell them it’s like a baseball catcher,
Squat down all the way, where they’re bending at the knees. And
then they would proceed then to cough three times, usually in a
loud manner.
And then after that, I would have them stand up and then keep
their legs straight at this point, bend over forward at the waist
completely, reach back with both hands and spread their butt
cheeks and then cough again three times to make sure that there
is nothing in there.
Tr. pp. 12-14.
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[6] Pitchford was compliant with the strip search until the last portion of the
search, which required him to bend at the waist and spread his buttocks apart.
When Pitchford refused to cooperate with this part of the search, Deputy Bunch
called for other deputies to assist him. The deputies then attempted to place
Pitchford in handcuffs, but Pitchford resisted. During the process of
handcuffing Pitchford, one of the assisting deputies noticed a plastic bag
“extruding” from Pitchford’s buttocks. Tr. pp. 15-16. Inside the bag was a
substance that tested positive as cocaine and heroin.
[7] As a result, the State charged Pitchford on May 21, 2015, with Level 6 felony
possession of cocaine, Level 6 felony possession of a narcotic drug, and Class A
misdemeanor resisting law enforcement. Pitchford subsequently filed a motion
to suppress the evidence discovered during the strip search, arguing that the
deputies had no reasonable suspicion to justify the search of a misdemeanor
offender. The trial court held a hearing on this motion on October 13, 2015,
and the parties later submitted briefs to the court on this issue. On October 27,
2015, the trial court issued a ruling from the bench granting Pitchford’s motion.
The State then filed a request that the trial court issue a written order, claiming
that it needed a written order in order to appeal.1 Accordingly, on November
20, 2015, the trial court issued findings of fact and conclusions of law
1
We are unaware of any such requirement. Pitchford makes no argument that the State’s appeal is untimely.
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explaining its grant of Pitchford’s motion to suppress. The State filed its notice
of appeal on December 14, 2015, and this appeal ensued.
Standard of Review
[8] The State argues on appeal that the trial court erred in granting Pitchford’s
motion to suppress. In cases involving a warrantless search, the State bears the
burden of proving an exception to the warrant requirement. Halsema v. State,
823 N.E.2d 668, 676 (Ind. 2005). Therefore, on appeal from the trial court’s
decision to grant a motion to suppress, the State appeals from a negative
judgment. State v. Mason, 829 N.E.2d 1010, 1015 (Ind. Ct. App. 2005). Thus,
the State must show that the trial court’s ruling on the suppression motion was
contrary to law. Id. We will reverse a negative judgment only when the
evidence is without conflict and all reasonable inferences lead to a conclusion
opposite that reached by the trial court. Id. On appeal, we neither reweigh the
evidence nor judge the credibility of witnesses. Id. Instead, we consider only the
evidence most favorable to the trial court’s decision. Id.
Discussion and Decision
[9] The State argues that the strip search of Pitchford was constitutional and that
the trial court therefore erred in granting Pitchford’s motion to suppress. The
constitutionality of strip searches in Indiana is controlled by our supreme
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court’s decision in Edwards v. State, 759 N.E.2d 626 (Ind. 2001).2 In that case,
the court held that routine, warrantless strip searches of misdemeanor arrestees,
even when incident to a lawful arrest, are not reasonable under Article 1,
Section 11 of the Indiana Constitution or the Fourth Amendment to the United
States Constitution. Id. at 629.
[10] The Edwards court suggested that there “may be misdemeanor charges for
which a body search is appropriate because of the reasonable likelihood of
discovery of evidence.” Id. at 629. “[B]ut false informing,” the crime for which
Edwards was arrested, “without more, is certainly not such a crime.” Id. The
court also rejected the suggestion that the possible discovery of weapons or
contraband justifies a search of every incarcerated person. Id.
[11] The Edwards court ultimately held that a strip search is appropriate if the officer
conducting the search has “a reasonable suspicion, based upon the totality of
the circumstances surrounding [the defendant’s] arrest, that [the defendant] was
concealing weapons or contraband.” Id. at 630. In Edwards, the record was
unclear as to whether the defendant had been subjected to a routine strip search
or if the officer had a reasonable suspicion that Edwards was concealing
weapons or contraband. Therefore, the court held that the trial court did not err
2
Because Edwards is controlling, we reject the State’s argument that we should analyze Pitchford’s claims
under the three-factor test set forth in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005).
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in concluding that the State had not met its burden of demonstrating that the
warrantless search was justifiable. Id.
[12] The State argues that the holding in Edwards has been abrogated by the United
States Supreme Court’s more recent decision in Florence v. Board of Chosen
Freeholders of Burlington County, 132 S. Ct. 1510 (2012). The Court in Florence
held that the Fourth Amendment does not prohibit strip searches of arrested
persons before they enter a jail’s general population. Id. at 1523. The Florence
majority rejected the contention that persons arrested for minor offenses must
be excluded from such strip searches. 132 S. Ct. at 1520-21.
[13] However, the holding of our supreme court in Edwards was based on both the
Indiana Constitution and federal Constitution. See Edwards, 759 N.E.2d at 630
(assuming that case decided by Seventh Circuit Court of Appeals was correctly
decided under the Fourth Amendment, but reaching the same conclusion under
Article 1, section 11 of the Indiana Constitution). Accordingly, even if the strip
search of Pitchford was permissible under the Fourth Amendment,3 it must still
pass muster under the distinct, and arguably stricter, requirements of Article 1,
Section 11 of the Indiana Constitution. See Litchfield v. State, 824 N.E.2d 356,
361 (Ind. 2005) (holding that warrantless search of trash, which is permissible
3
The constitutionality of the strip search under the Fourth Amendment would depend on whether Pitchford
was to be held outside the general population. See Cantley v. W. Va. Reg’l Jail & Corr. Facility Auth., 771 F.3d
201, 208 (4th Cir. 2014) (“strip searching pre-arraignment detainees who are held outside the general
population of a detention facility is unconstitutional absent reasonable suspicion.”) (Wynn, J., concurring)
(citing Florence, 132 S.Ct. at 1523 (Roberts, C.J., concurring); id. at 1524 (Alito, J., concurring); id. at 1525
(Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting)).
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under the Fourth Amendment, requires a reasonable suspicion under the
Article 1, Section 11); Clanton v. State, 977 N.E.2d 1018, 1023 (Ind. Ct. App.
2012) (noting that despite the nearly identical language of the Fourth
Amendment and Article 1, Section 11, the very same police behavior could be
reasonable under the federal constitution and unreasonable under the state
constitution because each has a distinct reasonableness analysis).
[14] Thus, the holding in Edwards is still controlling to the extent that it was based
on Article 1, Section 11. Under Edwards, the warrantless strip search of
misdemeanor arrestees is impermissible unless, given the totality of the
circumstances, the officer has a reasonable suspicion that the arrestee is
secreting weapons or contraband. Nothing in the record indicates that Deputy
Bunch conducted the strip search based on any reasonable suspicion. It was
instead the very sort of routine, warrantless search prohibited by Edwards.
[15] The State attempts to distinguish this case from Edwards by focusing on the fact
that Pitchford was arrested for battery, which it claims is a crime of violence.
The State argues that Edwards would permit a strip search of an individual
arrested for a violent misdemeanor. Our reading of Edwards, however, reveals
no general exception for crimes of violence. Instead, the court in Edwards
merely noted that the possible charges faced by the defendant in that case were
all nonviolent misdemeanor offenses. 759 N.E.2d at 629. The court did not
hold that it was therefore permissible to routinely strip search those arrested for
violent misdemeanors. To the contrary, the court clearly held that strip searches
of misdemeanor arrestees must be based on a reasonable suspicion that the
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arrestee is concealing weapons or contraband. Edwards, 759 N.E.2d at 631.
Therefore, if an individual were arrested for a violent misdemeanor that
involved drugs or the use of a weapon, then this might, under the proper
circumstances, support a reasonable suspicion that the arrestee is concealing
contraband or weapons. See id. (noting that there “may be misdemeanor
charges for which a body search is appropriate because of the reasonable
likelihood of discovery of evidence). However, Pitchford’s offense is not this
sort of misdemeanor charge, as nothing in the record indicates that Pitchford’s
battery involved any sort of weapon or the possession of any contraband.
[16] The other cases in which this court has upheld a strip search are readily
distinguishable. In Bryant v. State, 959 N.E.2d 315, 320 (Ind. Ct. App. 2011),
this court held that the defendant, who was arrested for misdemeanor resisting
law enforcement, might have a strong argument that a warrantless strip search
was impermissible without other justification. However, the police in Bryant did
have such justification because they also had probable cause that the defendant
had committed the felony of dealing in a narcotic drug and reasonable
suspicion that he was concealing contraband. Id.
[17] In White v. State, 24 N.E.3d 535, 540-41 (Ind. Ct. App. 2015), trans. denied, we
held that the strip search of a defendant arrested for a misdemeanor was
permissible under the Fourth Amendment4 because of the officer’s reasonable
4
The court in White made no reference to Florence. Although the holding in White was based upon the
Fourth Amendment, we find its holding instructive in our analysis under Article 1, Section 11.
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suspicion that contraband might be introduced into the jail due to the lingering
odor of marijuana which engulfed the defendant even after he had been
transported to the arrestee processing center).
[18] In Frye v. State, 757 N.E.2d 684, 688-89 (Ind. Ct. App. 2001), trans. denied, we
held that, under the Fourth Amendment,5 a strip search was not justified merely
by the defendant’s arrest for fleeing the police but was justified because some
evidence gave rise to a reasonable suspicion that the defendant was in
possession of contraband, i.e., the presence of illicit drugs and paraphernalia in
plain view in the house from which the defendant fled. Id. See also Thompson v.
State, 824 N.E.2d 1265, 1268 (Ind. Ct. App. 2005) (holding that strip search of
defendant arrested for felony attempt to deal in cocaine was reasonable but that
the search being filmed by civilian camerawoman rendered the search
unreasonable).
[19] The bottom line is that Edwards is controlling, and we are not at liberty to
ignore it. Even though the Edwards court’s reliance on the Fourth Amendment
has been undermined by the United States Supreme Court’s holding in Florence,
its holding still stands for purposes of Article 1, Section 11. The clear holding in
Edwards requires that a warrantless strip search of a misdemeanor arrestee be
justified by reasonable suspicion, based on the totality of the circumstances, that
the arrestee is concealing weapons or contraband. No such suspicion was
5
To the extent that Frye was based upon the Fourth Amendment, it would appear to have been abrogated by
Florence. However, we still find it supportive of our analysis under Article 1, Section 11.
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reported in the present case, nor do we read Edwards as permitting the
warrantless strip search of all defendants arrested for violent offenses. Here,
Pitchford was arrested for misdemeanor battery, and nothing about the
circumstances surrounding his offense or his arrest support a reasonable
suspicion that he was concealing weapons or contraband. In short, the State has
not established that the trial court’s decision was contrary to law.6 The order of
the trial court granting Pitchford’s motion to suppress the evidence discovered
during the strip search is therefore affirmed.
[20] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
6
We note that the good faith exception to the exclusionary rule does not apply to cases involving warrantless
searches. See Thompson, 824 N.E.2d at 1271.
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