Paulino v. State

Dissenting Opinion by

BATTAGLIA, J.,

which CATHELL and WILNER, JJ., join.

I respectfully dissent.

The crux of the present case is whether the police’s search of Paulino was reasonable under the Fourth Amendment.1 The majority concludes that the search was both a highly intrusive strip search and a visual body cavity search and holds that the search was unreasonable, emphasizing the location of the search and the perception that there was a lack of exigency. I disagree that the search constituted a strip search or a visual body cavity search, and that the search was unreasonable.

A.

In State v. Nieves, 383 Md. 573, 861 A.2d 62 (2004), we addressed whether a strip search conducted incident to a *362lawful arrest for a minor traffic offense was reasonable under the Fourth Amendment. In that case, Nieves’ clothes were removed and he was searched at a police station, resulting in the discovery of two small plastic baggies containing cocaine protruding from his rectum; we addressed what constitutes a strip search:

The term “strip search” has been defined and used in differing contexts in Fourth Amendment jurisprudence. In general, strip searches involve the removal of the arrestee’s clothing for inspection of the under clothes and/or body. Some have defined strip searches to also include a visual inspection of the genital and anal regions of the body. Black’s Law Dictionary defines a strip search as “a search of a person conducted after that person’s clothes have been removed, the purpose usually being to find any contraband the person might be hiding.” ... There is a distinction between a strip search and other types of searches, such as body cavity searches, which could involve visually inspecting the body cavities or physically probing the body cavities.

Id. at 586, 861 A.2d at 70 (citations omitted). Therefore, a strip search generally involves the removal of clothing and inspection of the naked body; a visual body cavity search entails a specific visual inspection of the anal or genital body cavity areas. In the present case, the

search of Paulino was not a strip search, nor a body cavity search. The evidence adduced at the suppression hearing reflected that police knew that Paulino would be traveling in a Jeep Cherokee near a car wash in the 1100 block of North Point Road in Dundalk around 11 p.m. on September 29, 2000, and that he would be in possession of a quantity of crack cocaine, secreted in his buttocks area between his butt cheeks. Based upon this information, the police arrested Paulino when he arrived at the car wash, placed him on the ground, and conducted the search, lifting up his boxer shorts, reaching between his butt cheeks and securing the baggie. Paulino w as already wearing his pants below his buttocks so that the officers found the drugs by simply “lifting up [Paulino’s] shorts,” but not by removing them:

*363[COUNSEL FOR PAULINO]: And you did conduct a search then, is that correct? How did you come to find the drugs? [DETECTIVE LATCHAW]: Well, when we— when Mr. Paulino was removed from the vehicle and laid on the ground, his pants were already pretty much down around his — below his butt, because I guess that’s the fad, these guys like wearing their pants down real low, so it was just a matter of lifting up his shorts, and between his butt cheeks, the drugs were — I believe one of the detectives actually put on a pair of gloves and just spread his cheeks apart a little bit and it was right there.

The fact that Paulino’s shorts were pulled away from his waist so that the searching officer could determine whether he had drugs secreted in his buttocks area does not render the intrusion a strip search or a visual body cavity search.

Rather, the search of Paulino was a “reach-in” search incident to a lawful arrest. In United States v. Williams, 477 F.3d 974 (8th Cir.2007), after Williams was arrested, an officer opened his pants, reached inside his underwear, and recovered a large amount of drugs. The United States Court of Appeals for the Eighth Circuit distinguished strip searches from “reach-in” searches, noting that unlike a strip search, a “reach-in” search does not involve the exposure of the suspect’s private areas:

To be sure, our cases suggest that police officers should “take precautions to insure that a detainee’s privacy is protected from exposure to others unconnected to the search,” Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.1985), but Jones, like Starks v. City of Minneapolis, 6 F.Supp.2d 1084 (D.Minn.1998), analyzed whether police may conduct a strip search during which a suspect must expose fully his or her private areas. Jones, 770 F.2d at 740; Starks, 6 F.Supp.2d. at 1088-1089. In contrast, a reach-in search of a clothed suspect does not display a suspect’s genitals to onlookers, and it may be permissible if police take steps commensurate with the circumstances to diminish the potential invasion of the suspect’s privacy.

*364Id. at 977 (emphasis added) (citations omitted). See also United States v. Ashley, 37 F.3d 678, 682 (D.C.Cir.1994) (officer opened individual’s pants and discovered a bag from drugs inside his underwear); United States v. Williams, 209 F.3d 940 (7th Cir.2000) (police officer conducted search wherein he reached into the back of Williams’s undershorts and removed a plastic bag containing cocaine from between Williams’s buttocks); State v. Smith, 342 N.C. 407, 464 S.E.2d 45, 46 (1995) (officer searched individual by pulling open pants and underwear and reaching in to retrieve drugs). Therefore, a “reach-in” search, or a search of a clothed suspect wherein the officer conducting the search reaches between an individual’s clothing and his skin, without exposing the individual’s genitalia to onlookers, is not the same as a strip search or visual body cavity search and its reasonableness is measured by its limited intrusiveness weighed against the needs of the police to seize drugs they believe are secreted on a suspect’s body. See Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979) (“The test for reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”); Nieves, 383 Md. at 583, 861 A.2d at 68 (“In determining the reasonableness of a search, each case requires a balancing of the government’s need to conduct the search against the invasion of the individual’s privacy rights.”).

In Williams, 209 F.3d at 940, the police conducted a traffic stop of Williams’s vehicle, after which they asked Williams to get out of his car and for consent to search his person. After Williams was arrested, he attempted to flee the scene; the police apprehended him, and an officer reached into the back of Williams’s pants, within his undershorts, and removed a plastic bag containing cocaine from between his buttocks. Addressing whether the search was unreasonable, the United *365States Court of Appeals for the Seventh Circuit concluded that it was reasonable because the search was not significantly more intrusive than necessary:

Williams next argues that the “crack” seized from him should be suppressed because it was found when Officer Lewis “strip searched” him at the scene subjecting him to great humility and indignity. The district court, however, construed the search as a search incident to an arrest, not a strip search.
Lewis retrieved the object by sliding his hand under Williams’ waistband and down the back part of his pants. Williams was never disrobed or exposed to the public. The search occurred at night, away from traffic and neither officer saw anyone in the vicinity. Additionally, Williams’ attempt to flee the scene and his physical resistance prior to the retrieval of the substance suggest that he would have tried to further conceal or dispose of the evidence had they not retrieved it immediately. In this case, the scope of the initial pat-down search by the officers was no more intrusive that which was already permitted.... The officers’ seizure of the drugs did not add significantly to Williams’ invasion of privacy. Based on the officers’ experience, the scope of the search, its justification and the place where it occurred, the district court did not clearly err in concluding the search of Williams was not overly intrusive and was correct in denying the motion to suppress.

Id. at 943-44 (emphasis added).

In Williams, 477 F.3d at 974, the United States Court of Appeals for the Eighth Circuit addressed a search wherein, on a police precinct parking lot surrounded by a residential neighborhood, an officer opened Williams’s pants, reached inside his underwear, and removed a large amount of crack and powder cocaine. Assessing the reasonableness of the “reach-in” search, the court noted that “[t]here is no question that police were justified in searching inside Williams’s pants [because] [t]he police possessed a warrant authorizing them to *366search his person for drugs and firearms, and an initial pat-down produced specific probable cause that Williams was hiding something inside his pants,” and that the proper issue was “whether the search was reasonable in its scope, manner, and location.” Id. at 975. In this respect, the court concluded that the search was reasonable, remarking that the officers took sufficient precautions to protect Williams’s privacy:

We believe that the officers 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. The police refrained from searching Williams on a public street, and instead took him to the more private precinct parking lot. The parking lot is partially secluded. It holds squad cars and the cars of police employees, and is surrounded by a chain link fence that is topped by barbed wire and covered to some degree with vegetation. The district court’s findings of fact recounted uncontradicted testimony of police officer Randy Olson that no vehicles entered the lot during the search, and that he saw no person other than police officers-either inside or outside the parking lot-within eyesight of the brief search. To the extent any citizen observed the search without notice of the police, there is no evidence that such a person would have seen the private areas of Williams’s body or any contact between the gloved hand of the officer and Williams’s genitals, which remained obscured from the view of passers-by. Rather, the citizen would have observed from a distance that an officer briefly reached inside Williams’s pants and pulled out a bag of cocaine. We conclude that such a search does not unreasonably infringe on Williams’s privacy interests when balanced against the legitimate needs of the police to seize contraband that he carried on his person.

Id. at 977-78.

Likewise, in Smith, 464 S.E.2d at 45, the defendant was stopped by police officers, and informed that he was suspected of transporting cocaine; the officer stood between the open car door and Smith and pulled back and down Smith’s pants *367and underwear, reached in, and pulled out a paper towel containing cocaine from under Smith’s scrotum. Assessing the reasonableness of the search, the Supreme Court of North Carolina reversed the intermediate appellate court and adopted the dissent, State v. Smith, 118 N.C.App. 106, 454 S.E.2d 680, 687 (1995) (Walker, J., dissenting), wherein Judge Walker concluded that the search was reasonable because there were sufficient exigent circumstances to conduct the search in the street to prevent the loss or destruction of the drugs and because the officer took precautions to protect Smith’s privacy interests:

The search in the instant case took place at approximately 1:30 A.M. at the intersection of two streets in Fayetteville. The record does not reveal the conditions at the time, and defendant’s objection was that he did not want the officer to “search [his] rear” in “the middle of the street.”
Here the evidence does show that prior to the search Officer Cook asked defendant to step behind the open car door of his vehicle and that he positioned himself between defendant and the car door on the outside. Officer Cook said he took these steps “because [he] didn’t want to expose [defendant] to other cars, the public, to embarrass him, that sort of thing.” Defendant did not dispute this testimony. Considering the totality of the circumstances, I believe that the officers here, like the trooper in Bazy, took “the necessary and reasonable precautions to prevent the public exposure of defendants] ... private areas.” While there may have been other less intrusive means of conducting the search, I agree with the Bazy court that the availability of those less intrusive means does not automatically transform an otherwise reasonable search into a Fourth Amendment violation. Just as the court in Bazy was unwilling to second guess the procedures used by the officers in that case, I am unwilling to second-guess the trial court’s finding here that the officers’ conduct during the search did not violate defendant’s Fourth Amendment rights. The trial court in ruling on defendant’s motion to suppress had the arguments of both parties before it and was in a superior position to evaluate *368the reasonableness of the search. I do not believe defendant is entitled to a new trial, and I would affirm the trial court in all respects.

Id. at 687 (Walker, J., dissenting). Similar to the searches conducted in those cases, the search of Paulino was reasonable under the Bell reasonableness balancing test; the police needed to conduct the search in order to prevent either loss or destruction of the drugs, which could have occurred while in transit, and the officers protected Paulino’s privacy interests by conducting the search in such a manner to prevent any onlookers from viewing his genitalia.

The majority contends, because the officer touched Paulino’s clothes and body to view and secure the drugs, that the search constituted a strip search, citing Amaechi v. West, 237 F.3d 356 (4th Cir.2001) (officer walked Amaechi to police car, causing her house dress to fall open, and during search, swiped his hand across Amaeehi’s vagina causing slight penetration of her genitals); United States v. Dorlouis, 107 F.3d 248 (4th Cir.), cert, denied, 521 U.S. 1126, 117 S.Ct. 2525, 138 L.Ed.2d 1025 (1997) (police took Paul inside a police van and ordered him to remove his clothes); United States v. Vance, 62 F.3d 1152 (9th Cir.1995) (Vance consented to a pat-down search, which revealed a bulge in his crotch area and that he was wearing two sets of underwear; a customs officer then ordered Vance to remove his trousers and pull down his underwear); Blackburn v. Snow, 771 F.2d 556 (1 st Cir.1985) (Blackburn was required by prison officials to remove her clothes so that a matron could view her armpits, lift her breasts, examine her genitalia, and spread her buttocks apart); McGee v. State, 105 S.W.3d 609 (Tex.Crim.App.), cert, denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003) (McGee was forced to remove his pants, bend down, and spread his buttocks); and Hughes v. Commonwealth, 31 Va.App. 447, 524 S.E.2d 155 (2000) (Hughes’ clothes were removed and he was asked to bend over and cough). These case are not instructive, however, because the searches in those cases involved removal of clothing, which was not present in this case, and because they involved an intentional touching of genitalia, *369which was far more intrusive than the touching the officer did in this case to secure the drugs.

Rather, the fact that Paulino was not fully or partially disrobed differentiates the instant search. In McCloud v. Commonwealth, 35 Va.App. 276, 544 S.E.2d 866 (2001), the defendant was arrested for possessing a stolen car; during the search incident to the arrest, the officer pulled McCloud’s pants and underwear away from his body and discovered plastic baggies containing cocaine. The officer reached inside McCloud’s underwear and seized the baggies. In assessing the reasonableness of the search, the intermediate appellate court concluded that the search was not a strip search because the search did not involve full or partial disrobement, nor did it involve the exposure of McCloud’s genitalia:

We have found no cases, nor has appellant cited any, that include “arranging” of the suspect’s clothing in a definition of “strip search.”
Further, in a review of a number of federal appellate decisions, we found no cases that characterize a strip search as other than partial or total disrobement. See Amaechi v. West, 237 F.3d 356 (4th Cir.2001); Swain v. Spinney, 117 F.3d 1 (1st Cir.1997); Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir.1992); Masters v. Crouch, 872 F.2d 1248 (6th Cir.1989); Weber v. Dell, 804 F.2d 796 (2nd Cir.1986); Salinas v. Breier, 695 F.2d 1073 (7th Cir.1982).
In this case, in accepting the Commonwealth’s evidence, we find appellant was not subjected to a strip search. Unlike in Hughes, Moss, Taylor, and Gilmore, appellant’s clothing was not removed, and his genital area was not exposed. The officers made no visual inspection of appellant’s genitals nor did the officers touch appellant’s genitals. Therefore, we affirm the judgment of the trial court.

Id. at 868-69.

Further, in Williams, 477 F.3d at 974, a case remarkably close to the situation we consider here, the court rejected the argument that a search was unreasonably intrusive because it *370involved physical contact, remarking that such contact is unavoidable when conducting a search for drugs:

Williams makes two objections to the search. First, he claims it was unreasonably intrusive in its scope and manner because it involved physical contact with his genitals. We disagree. The police could not have removed the drugs that Williams stashed near his genitals without making some “intimate contact,” and we reject Williams’s claim that such contact is per se unreasonable. Some physical contact is permissible, and indeed unavoidable, when police reach into a suspect’s pants to remove drugs the suspect has chosen to hide there____
The search of Williams was both less intrusive, as it involved no penetration or public exposure of genitals, and far more justified, as police had probable cause to believe he was carrying drugs inside his pants. We disagree with Williams’s claim that the police were required to avoid physical contact with him by directing him to disrobe and then visually inspecting his body for drugs. “A creative judge, engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.” But the existence of “less intrusive means” does not, by itself, make a search unreasonable. While the potential for destruction of evidence is diminished when a suspect is in custody, it is not completely eliminated, and it was not unreasonable for the officers to assume the initiative by seizing the contraband that Williams secreted in his underwear, rather than allow Williams to disrobe and remove the drugs himself.
* * *
In contrast, a reach-in search of a clothed suspect does not display a suspect’s genitals to onlookers, and it may be permissible if police take steps commensurate with the circumstances to diminish the potential invasion of the suspect’s privacy.

*371Id. at 976-78 (some citations omitted). Thus, the fact that the search of Paulino involved an officer touching Paulino’s buttocks to view the drugs did not automatically make the search an unreasonably intrusive strip search. Instead, Paulino’s search was a reasonable “reach-in” search incident to arrest.

B.

Even were the search of Paulino to be considered a strip search, it was reasonable. Although the majority agrees that strip searches may be reasonable, it finds that the search of Paulino was unreasonable because it was conducted at a “public” car wash in the presence of Paulino’s friends who arrived with him in the Jeep Cherokee. In its conclusion, the majority is establishing a per se rule that strip searches must be done in an enclosed area. Such a per se rule violates the standard of reasonableness iterated in Bell v. Wolfish, 441 U.S. at 520, 99 S.Ct. at 1861, 60 L.Ed.2d at 447. In Bell, the Supreme Court remarked that whether a strip search is reasonable is incapable of being measured by per se rules because the test for reasonableness “is not capable of precise definition or mechanical application.” Id. at 559, 99 S.Ct. at 1884, 60 L.Ed.2d at 481. The Court did not differentiate between searches conducted in public and searches conducted in enclosed areas, stating that the reasonableness of a search is measured by balancing the need for the particular search— in this case, the police’s need to prevent evidence from becoming destroyed or lost — against the invasion of privacy the search entails. Id.

In Nieves, 383 Md. at 573, 861 A.2d at 62, this Court considered whether a strip search was reasonable after Nieves had been stopped for a traffic offense. In assessing the reasonableness of the strip search, we noted that if an individual is connected with drug trafficking, a reasonable strip search incident to a lawful arrest may be conducted. Id. at 598, 861 A.2d at 77. Moreover, we did not distinguish searches conducted in public from searches conducted in enclosed areas, instead emphasizing that “[i]n determining the reasonableness of a search, each case requires a balancing of *372the government’s need to conduct the search against the invasion of the individual’s privacy rights.” Id. at 583, 861 A.2d at 68.

Therefore, whether a search is conducted in public as opposed to in an enclosed area is not controlling; the reasonableness of a search is measured by balancing the need for the search against the intrusion upon the individual’s privacy rights. In State v. Jenkins, 82 Conn.App. 111, 842 A.2d 1148 (2004), an undercover police officer, after having been informed that the defendant was dealing drugs, arranged to buy heroin from him. When Jenkins approached the officer to sell him the drugs, he was arrested and taken to the side of a restaurant building to be searched; the officer subsequently pulled Jenkins’s pants and underwear away from his body and discovered glassine packets of heroin and crack cocaine. Although the court considered the search of Jenkins a strip search, it found the search reasonable under the Fourth Amendment because the officers had reasonable suspicion that Jenkins had drugs on his person, and they adequately protected his privacy interests even though the search was conducted in public:

A custodial arrest gives rise to the authority to search, even if the arresting officer does not “indicate any subjective fear of the [defendant] or ... suspect that [the defendant] was armed.” “The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.... It is the fact of the lawful arrest which establishes the authority to search, and ... in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that amendment.” (Citations omitted; emphasis added; internal quotation marks omitted). It was, therefore, of no moment that Brody was searching for weapons or contraband.
*373 In this case, the manner in which the officers conducted the strip search struck the appropriate balance between “the need for the particular search” and “the invasion of personal rights...The officers took the defendant to the side of the restaurant, away from the street and out of public view. [The officer] did not require him to remove any of his clothing, but rather pulled his pants and underwear away from his body specifically to retrieve the glassine packets he discovered and suspected were there from the patdoum of the defendant.

Id. at 1157-58 (emphasis added).

Similar to the search conducted in Jenkins, the police took reasonable precautions to protect Paulino’s privacy interests, and the search, although not done in a physically enclosed space, was no more intrusive than necessary to determine whether Paulino possessed drugs. The evidence at the suppression hearing reflected that Paulino arrived at the car wash late at night when the car wash was closed to the public. The police arrested him, placed him on the ground and conducted the search, lifting up his boxer shorts, reaching between his butt cheeks and securing the baggie, precisely where they were told it would be. The police secured the drugs in Paulino’s possession inside the bay of a car wash facility in the rear of a parking lot, blocked in by police vehicles, and secluded behind a storage facility and an automobile repair shop, such that the area could not be seen by passers-by. Although the majority assumes that Paulino’s friends were present at the car wash and that they had the ability to view Paulino’s buttocks during the search, there was no evidence adduced at the suppression hearing to support this assertion. Although one of the detectives testified that the car wash area was well-lit, there is no evidence that anyone saw Paulino’s genitalia, nor that anyone other than the searching officer saw Paulino’s buttocks.

Moreover, even when there exists alternatives, or less intrusive means, to conduct a search, that does not by itself render the search unreasonable. See Byndloss v. State, 391 Md. 462, 484, 893 A.2d 1119, 1133 (2006) (“A creative judge engaged in *374a post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But ‘[t] he fact that the protection of the public might, in the abstract, have been accomplished by “less intrusive” means does not, itself, render the search unreasonable.’ The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.”), quoting Wilkes v. State, 364 Md. 554, 577, 774 A.2d 420, 433 (2001), quoting in turn United States v. Sharpe, 470 U.S. 675, 687, 105 S.Ct. 1568, 1576, 84 L.Ed.2d 605, 616 (1985) (citations omitted).

By holding as it does, the majority impermissibly restricts the police’s ability to conduct reasonable searches under the Fourth Amendment for drugs that are secreted on an individual known to be carrying such drugs to prevent their loss. I disagree, and would affirm the judgment of the Court of Special Appeals.

Judges CATHELL and WILNER authorize me to state that they join in this dissent.

Dissenting Opinion by

. The Fourth Amendment of the United States Constitution provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV.