By Robert C. Bonsib, Esq.
The Maryland Court of Special Appeals (CSA) in Faith v. State, 242 Md. App. 212, 217, 213 A.3d 809, 811 (2019) (click her for full case) holds that a visual body search, in which a female officer conducted a “look-in” at Faith’s genital area, was unreasonable under the Fourth Amendment, given the public manner and location in which that search occurred. The CSA found that the State failed to establish any exigent reason to perform this inspection on the shoulder of a highway in the presence of onlookers, instead of at a more private setting that would lessen the intrusion into Faith’s personal privacy and, as a result, the CSA reversed Faith’s conviction. In this opinion, the CSA reviewed the constitutional limits on sexually invasive searches like the one at issue in Faith.
The facts presented to the Court established that after police officers had stopped and detained Faith, a K-9 was at the scene and alerted to the presence of drugs on the person of Faith. A female police officer was dispatched to the scene to conduct a search of Faith.
The female police officer testified regarding how she conducted her search:
[DEFENSE COUNSEL]: So in this specific case, you told her to unbutton your shorts, and to pull your shorts out towards you so that you could see inside?
[POLICE OFFICER]: Correct. Obviously, if she leaves them buttoned, she can’t pull that and her underwear away for me to see in her underwear.
[DEFENSE COUNSEL]: And so you also tell her to pull her underwear out?
[POLICE OFFICER ]: Away from her body, correct.
[DEFENSE COUNSEL]: And that allows you to see her genitalia?
[POLICE OFFICER.]: I can see the front portion of her vagina, correct.
[DEFENSE COUNSEL]: You saw enough of her vagina in this case where you were able to describe it as a condom protruding from her vagina?
[POLICE OFFICER]: I saw enough of a condom coming out of her vagina in her underwear, correct.
Drugs were discovered in the condom.
Police are allowed to conduct a search incident to arrest in order to remove any weapons the [arrestee] might seek to use in order to resist arrest or effect his escape … [or] to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. Where a warrantless search is based upon the destruction or removal of evidence, the surrounding circumstances must present a specific threat to known evidence.
When a search proceeds beyond “a routine custodial search,” to a strip search, body cavity search, or other sexually invasive search, the necessity for such an invasive search must turn upon the exigency of the circumstances and reasonableness” because, without the constitutional safeguards of exigent circumstances and reasonableness, every search incident could result in a strip search.
The Fourth Circuit Court of Appeals in United States v. Edwards, 666 F.3d 877, 882-83 (4th Cir. 2011) recently reviewed the analytical framework used to evaluate sexually invasive searches and stated:
“[w]hen … a search involves “movement of clothing to facilitate the visual inspection of a [person’s] naked body,” the search qualifies as a type of “sexually invasive search and to determine whether a sexually invasive search is reasonable, we employ the test adopted in Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L.Ed.2d 447 (1979). Under the Bell framework, we balance the invasion of personal rights caused by the search against the need for that particular search. 441 U.S. at 559, 99 S. Ct. 1861. Pursuant to Bell, we examine the search in its complete context and consider the following factors: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed. Id.
…. [W]e observe that a sexually invasive search “constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual.” Courts have described such searches, including strip searches, as terrifying, demeaning, and humiliating. When the scope of a search exceeds a visual inspection of an individual’s naked body, the magnitude of the intrusion is even greater.”
The CSA noted that the Court in Edwards recognized that sexually invasive searches, which it referred to collectively as strip searches, may vary in scope, explaining that [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 a visual inspection of the anal and genital areas. A “manual body cavity search” includes some degree of touching or probing of body cavities. “By definition a strip search involves a more invasive search of the person as opposed to a routine custodial search. Therefore, the necessity for such an invasive search must turn upon the exigency of the circumstances and reasonableness. Without the constitutional safeguards of exigent circumstances and reasonableness, every search incident could result in a strip search. As [the CSA has] said, “[t]he meaning of exigent circumstances is that the police are confronted with an emergency – circumstances so imminent that they present an urgent and compelling need for police action.”
A search that permits a police officer to view a suspect’s private areas “is not the type of search that automatically is allowed as a search incident to arrest.” Allen v. State, 197 Md. App. 308, 323, 13 A.3d 801 (2011). Applying the analytical framework established by Bell, the CSA stated that it must consider the manner and location of the challenged search, in light of its scope and justification, to balance the need for this roadside search against the invasion of personal rights that the search entailed
In response to questioning by the suppression judge, the police officer testified that she viewed Faith’s genitalia. Specifically, the police officer said that she saw a condom protruding from Faith’s vagina. After finding that this search was not a body cavity search, the suppression court recognized that it was a visual body search of Faith’s genital area.
Whether the search of Faith qualifies as a visual body cavity search based on the police officer’s external inspection of Faith’s vagina, it was undisputedly a visual body search because the police officer required the rearrangement of clothing to enable her to view Faith’s vaginal area. It also falls within the Fourth Circuit’s definition of “sexually invasive search” as a “search involv[ing] ‘movement of clothing to facilitate the visual inspection of a [person’s] naked body.'”
For the particular search mode in Faith’s case – a visual inspection of her external genital area, with no removal of clothing, no touching, and no visual inspection of internal body cavities – the CSA said it would use the terms visual body search or “look-in” search. Like a “reach-in” search in which clothing is manipulated to enable a police officer to reach in and retrieve the contraband without exposing the arrestee’s private areas to others, a “look-in” search involves manipulating clothing so that a police officer can visually inspect external genitalia. Although look-in searches and reach-in searches often go together, this search illustrates that is not always the case.
The Faith Court reviewed the pertinent Fourth Amendment law and reminded that when a K-9 dog alerts to the presence of narcotics in a vehicle, a police officer has probable cause to undertake a warrantless arrest of the driver, police may search the person of the arrestee to remove any weapons or recover evidence that could be concealed or destroyed and a sexually invasive search may be conducted incident to arrest if police have a reasonable articulable suspicion that the arrestee is concealing drugs on her body. In the case of an arrest for drug distribution, the nature of the offense provides reasonable suspicion to believe that the arrestee is concealing drugs on his or her person, which reflects that it is “well known in the law enforcement community, and probably to the public at large, that drug traffickers often secrete drugs in body cavities to avoid detection.”
The brevity of such a sexually invasive search cannot render it reasonable “where there was no exigency.” The State must establish some constitutionally relevant and non-pretextual justification for immediately conducting a sexually invasive roadside search and the State bears the burden of establishing a legitimate need to proceed with such a search “at that precise moment” instead of taking steps to protect privacy, such as by transporting Faith to the police station or conducting the search in a vehicle.
The Faith Court was not persuaded by the State’s contention that establishing exigency is less important because a look-in search, like a reach-in search, is not as intrusive as a strip search or body cavity search and said that such a position ignores the “intrusive and demeaning” nature of submitting to an involuntary visual inspection of genitals by a government agent.
Sexually invasive searches may not be conducted in public view solely for the convenience of law enforcement officers. Although police may obtain consent to search at the scene, here the police officer instead announced that she was going to search Faith, including her vagina, without giving Faith any option to be searched at the police station or at a less public location. The CSA also noted that neither did the police officer explain why this search could not wait until Faith, who was already subject to arrest based on the canine alert, was taken to a more private location, or, alternatively, why the police officer did not conduct this search in one of the four vehicles at the scene of this traffic stop
The CSA held that there was nothing unusual or exigent about this traffic stop that created a need to conduct this sexually invasive search in such a public manner and location.
Perhaps one of the factors that was important to the CSA in evaluating the reasonableness of the actions of the police officer was the police officer’s acknowledgement that the search of Faith was one of “thousands” of similar “female searches” (some of which involve skin-to-skin contact) she has performed over fifteen years and was, as was the case in most other instances she described, the search occurred after the she was called to the scene of a stop that generated suspicions of drug activity. The police officer testified that she followed her “systematic” protocol, from her un-Mirandized questioning designed to “build” the reasonable suspicion necessary to conduct a search, to her announcement that she was going to search Faith’s vagina, through her placement of Faith behind her cruiser, her instructions to Faith to open up her shorts and hold out her underwear, and her inspection of Faith’s external genital area.
The CSA cautioned that “[w]ithout the constitutional safeguards of exigent circumstances and reasonableness, every search incident could result in a [sexually invasive] search and observed that the record in this case revealed that the Frederick County Sheriff’s Department had established a systematic practice of conducting such roadside searches, rather than taking the privacy steps suggested by prior cases such as conducting searches inside a vehicle or at a police station.
The CSA continued and concluded that what the collective testimony of the police officers in this case, as well as the arguments made by the State, made clear was that the Frederick County Sheriff’s Department was operating under the premise that, even when conducted in public view, a look-in search conducted by a single police officer of the same gender, is permissible because the scope of such a search is not “unreasonably” invasive.
The CSA rejected the State’s position and said that although a visual body search might be reasonable under the Fourth Amendment when it occurs during a “routine encounter in a public place, if the police take reasonable steps to protect the arrestee’s privacy so as to remove or shield the search itself from public view, that did not happen in Faith’s case. The CSA held that when, as in this case, the police choose to conduct a non-exigent look-in search in a public setting, constitutional constraints require measures beyond simply shielding others from viewing private parts.
The CSA found that what had occurred was an non-exigent visual inspection of the genital area of a person suspected of concealing CDS occurred in the daylight, while Faith stood between two police cruisers with emergency lights flashing, along the shoulder of an interstate highway, as moderate to heavy traffic passed and that Faith’s companion and three-year-old child were present as the search occurred. Under these circumstances, the CSA held that the search violated Faith’s Fourth Amendment right to be free from unreasonable searches.