State v. Harding

³⁸⁷ CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned). The decision in this State appeal from an adverse pretrial suppression ruling was filed on October 7, 2010, in order to satisfy the time limit established by Maryland Code, Courts and Judicial Proceedings Article, § 12 — 302(c)(3)(iii) (1973, 2006 RepLVoL). We reversed a pretrial order to suppress physical evidence.

We indicated that an opinion explaining our decision would follow. A Strip Search With yet no direct guidance from the Supreme Court, a nation-wide debate (or series of more or less related debates) has been raging over the extent to which the search of an individual for evidence may, in its intensity, go beyond the limits of the traditional search incident to lawful arrest and still be deemed reasonable within the contemplation of the Fourth Amendment. That debate, thus far, has produced far more heat than light. The case law and the academic commentary have been growing so prolifically that they are producing a chaotic sprawl.

An effort has to be made to organize this growing mass of material into more manageable and comprehensible sub-units. Part of our goal in this opinion will be that of reducing the doctrinal clutter. Our special concern on this appeal will be with the precise justification required to expand a routine search incident into what may be characterized as a “strip search.” The law has been in a quandary about how to understand, and to explain, the relationship between the strip search and the search incident. The heart of the problem is that the strip search grows out of the search incident — but not automatically.

In getting a handle on that troubled relationship, the key concepts will be 1) that a search incident does not demand particularization but 2) that a strip search (or anything more invasive) does. Procedural Background The Grand Jury for Baltimore County returned an indictment on October 5, 2009, charging the appellee, Gregory ³⁸⁸ Maurice Harding, with the possession of cocaine with intent to distribute. The appellee moved, pretrial, to suppress the baggy of crack cocaine that fell to the floor as he took off his pants during what the suppression hearing judge described as a “strip search” at a police precinct headquarters. In ruling that the evidence would be suppressed, the judge found that the police did not have “a reasonable articulable suspicion to do the strip search”: So, the Court considered the testimony of the officers in this case who would be the only ones that could describe the reasonable articulable suspicion, as well as any of the evidence submitted, and this Court does not find reasonable articulable suspicion in this case — which the Court recognizes is a lower standard than probable cause — but this Court does not find that there was a reasonable articulable suspicion to do the strip search.

(Emphasis supplied). Legal Antecedents To the Station House Search There is a single limited issue before us, and that is whether there was adequate justification for the more intensive search, characterized by the judge as a “strip search,” that took place at the station house after the appellee’s traffic stop and ultimate roadside arrest on the evening of September 10, 2009. As the hearing judge ruled, and as we agree, all of the steps taken by the police prior to that station house search were reasonable according to the Fourth Amendment. A. Traffic Stop: On September 2, 2009, Detective Richard Hearn and Detective Timothy Stadler of the Vice and Narcotics Section of the Baltimore County Police Department received information from a “very reliable informant” that the appellee was selling crack cocaine out of a blue Audi, with the Maryland tag number 7EPG15, in the Towson and Parkville areas.

The two detectives had been using that particular informant for between five and six months and he had provided “reliable” information in other cases that had “led to numerous CDS ³⁸⁹ arrests and search warrants.” Another detective in the unit also stated that he had received a complaint two or three months earlier that a man named Harding was selling crack cocaine at a liquor store on Perring Parkway and McClean Boulevard. On September 10, 2009, eight days later, Detectives Hearn and Stadler were conducting undercover surveillance on Joppa Road when they spotted the blue Audi with the license tag number that had earlier been supplied by the informant. The appellee was driving the Audi with no passengers. The detectives called upon a marked police car, driven by Sergeant John Matthews, to make a traffic stop if the opportunity presented itself.

See Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). Sgt. Matthews paced the Audi and found that it was traveling at a speed of 50 miles per hour in a 35 mile per hour zone. Seizing the opportunity, he stopped the Audi and issued it a written warning for speeding.

The hearing judge ruled that the traffic stop did not offend the Fourth Amendment. The first issue that the Court has considered and has been raised is the validity of the traffic stop in the first place, whether or not the stop was appropriate. It’s the Defendant’s position that the stop was not appropriate based on what was there. However, this Court, in looking at the totality of the circumstances and the information that the police had, believes that the stop was appropriate; that there was sufficient grounds to make the stop; that based on the information — and the law is very clear that if there is sufficient information to make a stop, that the State or the government is allowed to make traffic stops and look for technical violations in order to find more information.

That is totally appropriate. It’s condoned by the Courts, and in this case this was a proper traffic stop. (Emphasis supplied). No issue in that regard is now before us. ³⁹⁰ B. The Canine Alert: As a routine part of the traffic stop, Sgt.

Matthews checked, via police radio, the appellee’s driver’s license number and vehicle registration. While that checking was in process, the two detectives called in a K-9 unit. Within two minutes of the initial traffic stop, Officer Samantha Roberts was on the scene with her trained drug-sniffing dog, Aaron. Aaron alerted twice on the Audi, once at the driver’s side door and then again on the driver’s seat.

The hearing judge also ruled that this stage of the investigation passed constitutional muster. So, then the next question is whether or not his calling in of the K-9 Unit was proper based on the evidence presented. It’s the Defendant’s position that basically the dog shouldn’t have been called based on the information, but this Court disagrees. This Court finds there was sufficient information based on evidence that the State had — which is what the police had — to call the K-9.

There is no issue raised that the dog was called in late or it was some timing issue. It was actually very quick. So, there’s no issue on that. Now, as to the second issue in terms of propriety of the K-9 unit being called in, the Court finds that was proper.

(Emphasis supplied). There is no issue before us in this regard. Actually, of course, as long as the automobile is still properly being detained, the police need no justification for calling in the K-9 unit. The hearing judge found more than was necessary.

C. Arrest Based on K-9 Alert: There is also no question but that Aaron’s positive alert furnished probable cause for both a Carroll Doctrine search of the Audi and for the arrest of the appellee as the driver of the Audi. In State v. Ofori, 170 Md.App. 211, 229-34 , 906 A.2d 1089 (2006), on which the hearing judge relied, we began this part of our analysis by quoting from Fitzgerald v. State, 153 Md.App. 601, 620 , 837 A.2d 989 (2003), aff'd, 384 Md. 484 , 864 A.2d 1006 (2004), and then went on: ³⁹¹ The same degree of certainty that will support the warrantless Carroll Doctrine search of an automobile will, ipso facto, support the warrantless arrest of a suspect. 153 Md.App. at 620 , 837 A.2d 989 . We thought that what we there said meant that, in circumstances such as those involving a K-9 sniff, probable cause to search the vehicle is, ipso facto, probable cause to arrest, at the very least, the driver. If any further clarification is necessary, that is, indeed, what we meant.

The Supreme Court’s decision in Maryland v. Pringle, 540 U.S. 366 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003), is absolutely dispositive. Because of the close association between contraband in a vehicle and the driver of (or other passenger in) the vehicle, either finding the drugs in the vehicle, as in Pringle , or probable cause to believe that they are in the vehicle, as in this case, necessarily implicates the driver and passengers. Whatever the level of certainty we have reached with respect to the presence of contraband itself, its association with the occupants of the vehicle is the same. In terms of that inculpatory association, the Supreme Court’s unanimous opinion observed: We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine.

Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly. 540 U.S. at 372 , 124 S.Ct. 795 (emphasis supplied). In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983), the Supreme Court, as part of a hypothetical discussion, stated that a positive K-9 “alert” on a suspect’s luggage would amount to probable cause for the suspect’s arrest. A positive result [from the canine sniff] would have resulted in his justifiable arrest on probable cause. 460 U.S. at 506 , 103 S.Ct. 1319 . ³⁹² In Ricks v. State, 322 Md. 183 , 586 A.2d 740 (1991), the Court of Appeals similarly concluded that a positive “alert” on a suspect’s luggage was not only probable cause to search the luggage but, ipso facto, probable cause to arrest the possessor of the luggage. Ricks does not contest the intermediate appellate court’s determination, which affirmed the trial court’s denial of the motion to suppress, that his arrest was supported by the requisite probable cause.

Indeed, at oral argument before us, Ricks conceded that he was lawfully arrested, at least at the point when the dog scratched his bag, indicating that it contained narcotics. 322 Md. at 188 , 586 A.2d 740 (emphasis supplied). In Wilkes v. State, 364 Md. 554 , 774 A.2d 420 (2001), Judge Cathell, after stating that a canine “alert” had supplied probable cause to justify a warrantless automobile search, surmised that it might ipso facto support a warrant-less arrest as well: Moreover, some jurisdictions have held that once a drug dog has alerted the trooper to the presence of illegal drugs in a vehicle, sufficient probable cause existed to support a warrantless arrest. 364 Md. at 587 n. 24, 774 A.2d 420 . 170 Md.App. at 229-31 , 906 A.2d 1089 (emphasis supplied). In Ofori , we went on, 170 Md.App. at 233-34 , 906 A.2d 1089 , to refer to our earlier analysis of the identity between probable cause to search a vehicle and probable cause to arrest the driver in State v. Funkhouser. In any event, we are applying the law as we laid it down in State v. Funkhouser, 140 Md.App. 696, 721 , 782 A.2d 387 (2001): The probable cause developed by the initial canine “alert” was at one and the same time probable cause to believe both 1) that drugs were probably then in the car and 2) that its driver and sole occupant probably was then or recently had been in unlawful possession of those drugs. ³⁹³ (Emphasis supplied).

The fact that the appellee here was not the “sole occupant,” but only one of two, does not alter the result. The similarity between probable cause for a Carroll Doctrine search and probable cause for an arrest was analyzed by the Funkhouser opinion. The legal conclusions to which probable cause points are, albeit frequently related, slightly different in the cases of a warrantless automobile search and a warrant-less arrest. One concerns a crime by a person; the other concerns evidence in a place.

The factual predicate for those respective conclusions was, however, identical in this particular case. In terms of quantifiable probability, moreover, the probable cause for a Carroll Doctrine search is the same as the probable cause for a warrantless arrest. ... It does not take more probable cause to support a warrant-less arrest than it does to support a warrantless automobile search. The classic Brinegar v. United States [ 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 ] (1949) definition of probable cause is used for both conclusions alike, with no distinction made between the predicate for an automobile search and the predicate for a lawful arrest.

Although the closely related predicates may sometimes differ slightly in terms of qualitative content or substance, they do not differ quantitatively in terms of degree of their probability. The measure of likelihood is the same. Id. (emphasis supplied).

The identity of the probable cause focused on the car and on its driver in Funkhouser was indistinguishable from that same identity of probable cause in the case now before us. [T]he canine “alert” could have provided, all else being assumed to have been constitutional, a double justification for two related but separate and distinct Fourth Amendment events. The police not only had probable cause to search the Jeep Wrangler; they also had probable cause to arrest Funkhouser as its driver. ³⁹⁴ Id. (emphasis supplied). Based on this authority, the hearing judge put her imprimatur firmly on the arrest of the appellee for the probable possession of narcotics.

Then the next issue is whether or not there is probable cause to arrest, and whether there was an arrest at the scene. In looking at the circumstances of this case it’s very clear to this Court that there was an arrest done at the scene. The Defendant was placed in handcuffs, and although there was some differing testimony as to when the arrest occurred, clearly the Defendant was arrested. Then the question is was there probable cause to arrest him, and based on the Ofori case, there was.

I mean, all that Ofori says very clearly — and that’s why I asked Mr. Bates if there is anything distinguishable, but based on Ofori which clearly says for a driver, not for a passenger, but for a driver, that that K-9 positive alert is enough ¡for] probable cause to arrest. So, that’s all you need. You don’t need anymore information. Ofori , I read it a couple times, and I could not find anything in Ofori that distinguishes Ofori from this case.

So, I believe the case law now in Maryland is under Ofori , which is 170 Maryland App. 211 [ 906 A.2d 1089 ], a 2006 case, that if you have a driver and you have a positive alert, you could arrest without anything else. So then you could do a search incident to arrest, which was done in this case. (Emphasis supplied). Both the “alert” by Aaron and its inculpatory significance are beyond challenge.

D. The Search Incident to Lawful Arrest of the Appellee and the Carroll Doctrine Search of the Audi: Aaron’s positive “alert” on the Audi established the probable cause that triggered two investigative consequences. It was the predicate for a warrantless Carroll Doctrine search of the Audi. The two detectives conducted what they described as a “very thorough search” of the vehicle, looking in door panels, air vents, hidden compartments, and everywhere else ³⁹⁵ that they could without damaging the car. Detective Stadler testified that his experience as a narcotics detective made him familiar with the places in an automobile where narcotics could be concealed and that he searched all of those areas to the best of his ability.

No narcotics were recovered in the vehicle search. Aaron’s positive “alert” also gave the detectives probable cause to arrest the appellee, which they did. The arrest, in turn, ipso facto justified a warrantless search incident to lawful arrest. Detective Hearn conducted the search incident, reaching into the appellee’s pockets and patting down his pant legs.

Detective Hearn did recover $1,474 in cash from the appellee’s front and back pockets, but found no contraband. The hearing judge also ruled that the warrantless search incident was constitutionally reasonable: So then you could do a search incident to arrest, which was done in this case. There was from what I heard two searches done at the time at the scene. The first search that was done by Detective Hearn was a fairly comprehensive search.

It was certainly not a Terry search. It was a search that included as he described it — and there was no evidence that they were looking for any weapons, they dearly were looking for drugs. I believe Detective Hearn even said he was not looking for weapons. So, this search included the turning out of the pockets, it included a pat down of his legs as testified to by Detective Hearn.

They found cash in his wallet. They found cash in, at least, one or possibly two pockets and found nothing else. This Court, in listening and evaluating the credibility of the witness in this case, found that the search which was incident to that arrest — which I do find that they had probable cause to do the arrest based on State versus Ofori, that the search at the scene was appropriate in terms of being a search incident to the arrest, and was a fairly substantive search in terms of doing a body search using a flashlight turning out pockets and patting down his legs. There was some testimony that there was a search done ³⁹⁶ again, some sort of pat down done again before he gets into the vehicle where nothing was disclosed.

(Emphasis supplied). At this point, we are at the threshold of the world beyond search incident. Beyond Search Incident Detective Hearn concluded that it was necessary to take the search beyond the limits permitted for a routine search incident to lawful arrest. He told the appellee that he “had reasonable suspicion that [the appellee] had more CDS on him and we needed a further search.” The detective testified that he believed that the appellee was concealing contraband in an area of his body that was not accessible during the search of the appellee’s clothing.

Detective Hearn testified specifically: My five years as a detective in the [Community Drug and Violence Interdiction Team] Unit has made me learn that drug dealers a lot of times would store drugs in their pocket or pant leg and conceal drugs. It takes more than a cursory search to find various items most of the time. (Emphasis supplied). Once the situs of the strip search was moved to the precinct station in order to insure maximum privacy, it appears that the pertinent part of the ensuing search never progressed beyond the removal of the appellee’s pants.

As the appellee was removing his pants, the critical baggy of crack cocaine dropped out of them and fell to the floor. Detective Hearn' described the scene: THE COURT: I don’t understand and, perhaps, I missed it, but when you found the CDS in his I think you said pants leg at the station when you did the strip search, can you explain to me what that means? Where exactly did you find it? THE WITNESS: When we asked him to remove his pants, we picked it up and it fell through the pants leg onto the floor.

I don’t know where it was tied to, but it was within his pants somewhere, and when we shook the pants ³⁹⁷ it fell out. So, it could have been loose or it could have been tied to something and fell. THE COURT: You, found this after he took his pants off and you shook the pants and it fell out of the pants leg? THE WITNESS: Yes.

(Emphasis supplied). It was the Fourth Amendment intrusion to that point that produced the evidence that was excluded. That is, therefore, the only Fourth Amendment intrusion that concerns us. If the searching procedure for some reason went on beyond that point (it is very unclear whether it did or not), it produced no further evidence and, for purposes of the suppression ruling, is therefore meaningless.

Police behavior, even if sadly reprehensible, that has no evidentiary consequences may be of interest to a police review board but it is of no interest to a suppression hearing. Modality Issues Versus Justification Issues As we move now into the world beyond search incident, a more intensive examination of or into the body of a suspect gives rise to two very different types of problems. There is first the question of what is a reasonable justification for a more intensive search or examination of the body, an issue that we will be addressing infra as the key issue in this opinion. Even granting full justification for a more intrusive search of the body, however, there is also the distinct question of the modality of conducting such a search.

The concern in such a case is not with justification at all, but rather with the manner in which even a fully justified further search or examination is carried out. Those modality concerns focus on such things as privacy or unnecessary embarrassment or hygienic conditions or, in the more extreme cases, medical risk to the health of the suspect. As the law moves into the relatively uncharted territory beyond search incident, it will facilitate understanding and avoid unnecessary confusion if we can separate the modality cases from the justification cases, as two strands of caselaw ³⁹⁸ dealing with very different issues. Maryland now has four entries in the beyond-search-incident caselaw: 1) both Nieves v. State, 160 Md.App. 647 , 866 A.2d 870 (2004), and State v. Nieves, 383 Md. 573 , 861 A.2d 62 (2004), deal with a single case; 2) Paulino v. State, 399 Md. 341 , 924 A.2d 308 (2007); 3) Stokeling v. State, 189 Md.App. 653 , 985 A.2d 175 (2009); and 4) Judge Kenney’s recent addition to the literature in Moore v. State, 195 Md.App. 695 , 7 A.3d 617 (2010).

Of these, Paulino v. State should, for future analytic convenience and efficiency, be placed in a separate category from the other three. Paulino is exclusively a modality case and not a justification case. It does not address what, if any, additional justification may be required for a search incident to go beyond, in intensity, what a routine search incident clearly permits. The justification for what the opinion sometimes called a “strip search” and sometimes called a “visual body cavity search” was essentially just assumed to exist in Paulino and the focus of the opinion was clearly on the manner and place in which the search was conducted.

At the very outset of the opinion, its concern was announced: This case requires us to consider whether a search conducted incident to an arrest is reasonable under the Fourth Amendment in light of the manner and place in which the search was conducted____ 399 Md. at 344 , 924 A.2d 308 (emphasis supplied). The problem in that case was that the police had conducted the more than ordinarily intrusive search in the bay of an open-air car wash rather than in a more secluded environment. The opinion went on: The crux of this case ... is not whether the police had the right to search Paulino, but instead whether an exigency existed such that an invasive search, conducted at the scene of the arrest, was reasonable. 399 Md. at 357 , 924 A.2d 308 (emphasis supplied). The thrust of the case, quintessentially a modality case, was that if the police are going to execute something like a “strip ³⁹⁹ search,” steps should be taken to shield the searchee from public view.

There is no dispute that members of the public were present, specifically, the other passengers in the Jeep Cherokee. It is their presence, whether their view was obscured or otherwise, that makes the search of Paulino unnecessarily within the public view and thus violative of the Fourth Amendment. The police could have taken any number of steps, including patting Paulino down for weapons at the scene of the arrest and conducting the search inside the Jeep Cherokee vehicle in which Paulino was a passenger, or at the police station, to protect Paulino’s privacy interest. Similarly, the police could have conducted the search in the privacy of a police van. 399 Md. at 360-61 , 924 A.2d 308 (emphasis supplied).

Modality issues, of course, are not necessarily confined to the questions of privacy and possible embarrassment that were dealt with in Paulino . As a case such as Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), illustrates, where a blood sample was taken to test for blood alcohol content, certain modality issues will focus on such things as hygienic conditions and whether those taking the blood or administering certain tests have the required medical training. Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices.

We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain. ⁴⁰⁰ ... That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. 384 U.S. at 771-72 , 86 S.Ct. 1826 (emphasis supplied). 1 In the present case, there is no modality problem and cases such as Paulino , therefore, may conveniently be set off to the side. In this case, the detectives testified that they were not allowed to perform a more invasive search of the appellee in public because of the privacy concerns articulated by Paulino .

Accordingly, the appellee was transported to the Precinct Six Station so that the detectives could perform the further search of the appellee in a private room. Per departmental policy, the superior officer at the precinct, Sergeant Reagan, authorized the “strip search” that was then conducted. The modality concerns of Paulino were fully satisfied. Our analysis will focus on the distinct and very different issue of justification for a search that goes beyond the routine search incident.

Were the privacy of a strip search the issue before us, Paulino would be our gold standard. When the issue before us, however, is one of justification rather than one of modality, we may conveniently put Paulino and other modality cases to the side. The two issues do not mix. An excess of punctilious modality will not make up for a lack of substantive justification.

The National Border And Institutional Security In our effort to reduce the doctrinal clutter, we may also conveniently put to one side two strands of case law that touch the general reasonableness of the strip search (and beyond) only tangentially. They represent two prominent situations in which there is a substantially reduced Fourth Amendment protection. One of these is at the national border. The other ⁴⁰¹ is where there is a concern for institutional security, as in the case of jails and prisons.

A. Border Searches: United States v. Montoya de Hernandez, 473 U.S. 531 , 105 S.Ct. 3304 , 87 L.Ed.2d 381 (1985), is the seminal case involving a very intensive probing even into the body of a suspected drug smuggler at the national border. The suspect had arrived at the Los Angeles Airport on a flight from Bogota, Columbia. A customs official noticed from her passport that she had made eight recent trips to either Miami or Los Angeles. She spoke no English and had no family or friends in the United States.

She had $5,000 in cash but could not recall how her airline ticket had been purchased. The customs officials suspected that she was a “balloon swallower,” one who attempts to smuggle narcotics into the country hidden in her alimentary canal. A strip search followed. The searching matron felt the suspect’s abdomen and found it to be firm and full.

The suspect was wearing two pairs of elastic underpants with a paper towel lining the crotch area. For sixteen hours the suspect then resisted going to the toilet. The suspect, on the order of a federal magistrate, was given an X-ray and a pregnancy test. A physician conducted a rectal examination and removed a balloon containing cocaine.

Ultimately the suspect, over four days, passed eighty-eight balloons containing 528 grams of 80% pure cocaine. The Court of Appeals for the Ninth Circuit held that the search violated the Fourth Amendment. In reversing the Ninth Circuit, Justice Rehnquist explained the lesser expectation of privacy that prevails at an international border. Consistently, therefore, with Congress’ power to protect the Nation by stopping and examining persons entering this country, the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior.

Routine searches of the persons ⁴⁰² and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause. Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion even if the stop is based largely on ethnicity, and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever. 473 U.S. at 538 , 105 S.Ct. 3304 (emphasis supplied). Even at an international border, however, a search as intensive as this one required some special justification. The Supreme Court set that justification at the level of reasonable particularized suspicion.

We hold that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal. The “reasonable suspicion” standard has been applied in a number of contexts and effects a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause. It thus fits well into the situations involving alimentary canal smuggling at the border: this type of smuggling gives no external signs and inspectors will rarely possess probable cause to arrest or search, yet governmental interests in stopping smuggling at the border are high indeed. Under this standard officials at the border must have a “particularized and objective basis for suspecting the particular person” of alimentary canal smuggling. 473 U.S. at 541-42 , 105 S.Ct. 3304 (emphasis supplied).

What is reasonable at the national border, however, is not necessarily reasonable in the interior of the country. The case has no more than tangential materiality. ⁴⁰³ B. Institutional Security: But for some helpful dicta, the cases of Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979); United States v. Edwards, 415 U.S. 800 , 94 S.Ct. 1234 , 39 L.Ed.2d 771 (1974); and Illinois v. Lafayette, 462 U.S. 640 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983), may also conveniently be set aside as tangential, in that the more intensive searches permitted in those cases were justified largely on the basis of institutional security. In Bell v. Wolfish, a class action by pretrial detainees challenged five separate practices imposed on the detainees by officials and guards at a federal detention center in New York City. One of the practices was a required strip search of a detainee, including a visual examination of body cavities, following every visit to the detainee from a person from outside the institution.

Following such visit, no further justification was required. Justice Rehnquist’s opinion for the Court, 441 U.S. at 558 , 99 S.Ct. 1861 , described the extent of the search: Inmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. Corrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution. (Emphasis supplied).

The opinion went on to explain that a male being searched is required to lift his genitals and to bend over and spread his buttocks for visual inspection. A female being searched is required to bend over for a visual inspection of her anal and vaginal cavities. The Supreme Court held that because of the special needs of institutional security, such searches, without further justification, were reasonable: [Ajssuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facili ⁴⁰⁴ ty, we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable.

The test of 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. A detention facility is a unique place fraught with serious security dangers.

Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record. 441 U.S. at 558-59 , 99 S.Ct. 1861 (emphasis supplied). Justice Powell dissented from that part of the majority opinion authorizing the body cavity inspection, believing that some more particularized justification should be required. He proposed that such justification be at the “reasonable suspicion” level.

I join the opinion of the Court except the discussion and holding with respect to body-cavity searches. In view of the serious intrusion on one’s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case. 441 U.S. at 563 , 99 S.Ct. 1861 (emphasis supplied). United States v. Edwards had actually been decided five years before Bell v. Wolfish and touched only tangentially on institutional security. Edwards had been arrested at eleven o’clock at night for an attempted break-in at the local post office.

He was taken to the local jail and placed in a cell for the night. Ten hours after his arrest, he was ordered to hand ⁴⁰⁵ over to the police his shirt and pants; substitute clothing was provided him. Basically, the Supreme Court’s holding was simply an extension of the time limits for a search incident to lawful arrest, reasoning that “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” 415 U.S. at 803 , 94 S.Ct. 1234 . In a footnote, however, the Supreme Court did touch upon the venerable entitlement of a jailer to conduct “searches incident to incarceration”: Historical evidence points to the established and routine custom of permitting a jailer to search the person who is being processed for confinement under his custody and control.

While “[a] rule of practice must not be allowed ... to prevail over a constitutional right,” little doubt has ever been expressed about the validity of reasonableness of such searches incident to incarceration. 415 U.S. at 805 n. 6, 94 S.Ct. 1234 (emphasis supplied). Illinois v. Lafayette was a case in which the defendant had been arrested for disturbing the peace at a local motion picture house, a crime for which there would be, as a rule, no physical evidence. Nonetheless, the search of his effects at the police station yielded contraband amphetamine. Chief Justice Burger posed the question before the Court as one of “whether, at the time an arrested person arrives at a police station, the police may, without obtaining a warrant, search a shoulder bag carried by that person.” 462 U.S. at 641 , 103 S.Ct. 2605 .

Eschewing any search incident analysis, the Court posed the issue before it as one involving the “booking and jailing” process at the station house: The question here is whether, consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and ⁴⁰⁶ hence the absence of a warrant is immaterial to the reasonableness of the search. 462 U.S. at 643 , 103 S.Ct. 2605 (emphasis supplied). The Chief Justice’s analysis went so far as to suggest that the “disrobing of an arrestee” that might not be appropriate on the street might nonetheless be reasonable as one of the “practical necessities of routine jail administration.” The governmental interest underlying a station-house search of the arrestee’s person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest. Consequently, the scope of a station-house search will often vary from that made at the time of arrest.

Police conduct that would be impractical or unreasonable — or embarrassingly intrusive — on the street can more readily — and privately — be performed at the station. For example, the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street, but the practical necessities of routine jail administration may even justify taking a prisoner’s clothes before confining him, although that step would be rare. 462 U.S. at 645 , 103 S.Ct. 2605 (emphasis supplied). See also Hudson v. Palmer, 468 U.S. 517, 524 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984) (“The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security.”). But see Blackburn v. Snow, 771 F.2d 556, 567 (1st Cir.1985), for the very different situation involving strip searches of visitors to a prison rather than strip searches of the prisoners themselves.

As justification for such searches, the First Circuit insists upon “a more particularized level of suspicion.” 771 F.2d at 567 . Just as the national border presents a special case, so too do these searches in furtherance of institutional security. Again in the service of reducing the clutter, we may conveniently put them to one side. In dealing with the straightforward justification for an investigative strip search, we do not need to be ⁴⁰⁷ confused either by modality issues or by strip searches at the national border or in the interest of institutional security.

In reducing confusion, less is sometimes more. The Promiscuous Proliferation of Categories As we narrow the focus onto the required justification for an investigative procedure that is more invasive than the traditional search incident to lawful arrest, an investigative procedure that for the moment we will call simply a “strip search,” the first question to be addressed is that of how many legally cognizable levels of further invasiveness are we going to have to deal with. This is important for one reason; it will determine how many levels of justification will have to be devised. Self-evidently, we cannot have more levels of inva-siveness than there are levels of justification to go around.

Descriptively, of course, we can have any number of such gradations, but the soaring flights of poesy may soon overwhelm the available levels of Fourth Amendment justification. Our initial effort will be to reduce the poetry and to concentrate on Fourth Amendment justification. Although in State v. Nieves, 383 Md. 573 , 861 A.2d 62 (2004), the actual holding of the Court of Appeals did not require its analysis to deal with anything beyond a generic strip search, its preliminary discussion, 383 Md. at 586 , 861 A.2d 62 , did suggest, by way of dicta, at least two legally cognizable categories of further intrusion beyond search incidents: a strip search and “body cavity searches” (presumably both the visual and manual varieties). 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.

Based upon the record, it appears that a strip search was conducted rather than a physical body cavity search. (Emphasis supplied). See William J. Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L.Rev. 665, 667 (2000). ⁴⁰⁸ What was perhaps implicit in the Nieves discussion was made explicit by some preliminary dicta in Paulino v. State, supra, 399 Md. at 352-53 , 924 A.2d 308 (2007), and that was that “[t]here exist [not two but] three separate categories of searches” beyond search incident. Although not necessary to the Paulino decision, which dealt only with a modality issue, the opinion, id., quoted with approval from Blackburn v. Snow, 771 F.2d 556 , 561 n. 3 (1st Cir.1985): 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. (Emphasis supplied). In further defining those three levels of intrusiveness, Paulino, 399 Md. at 352 n. 3, 924 A.2d 308 , quoted from the Simonitsch law review article at 667-68: Mr. Simonitsch defines a strip search as involving the removal of clothing for inspection of the under clothes and/or body and “including] only those searches that do not involve a visual or manual inspection of the genitals or anus”; visual body cavity search “include [s] only searches where there is a visual inspection of a person’s genitals or anus, but no physical contact or intrusion”; manual body cavity search includes “not only those [searches] performed by insertion of, or manipulation with, the fingers, but also endoscopic examinations and the use of gynecological devices.” (Emphasis supplied).

See also McGee v. Texas, 105 S.W.3d 609, 615 (Tex.Crim.App.2003). The three-judge dissenting opinion in Paulino , moreover, may have gone so far as to introduce yet a fourth entry into the “beyond search incident” sweepstakes, with the “reach-in” search. The dissent, 399 Md. at 364 , 924 A.2d 308 , defined the “reach-in” search: ⁴⁰⁹ [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 individuals genitalia to onlookers, is not the same as a strip search or visual body cavity search and its reasonableness is measured by this limited intrusiveness weighed against the needs of the police to seize drugs they believe are secreted on a suspect’s body. (Emphasis supplied).

Whoa! That’s too many already. The subdivision of searching levels soon passes the point of diminishing returns. We just don’t have enough justifications to go around.

At this point, moreover, we are not yet allowing a place in the invasiveness hierarchy for the medical or quasi-medical investigative procedures dealt with in such cases as Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), and Winston v. Lee, 470 U.S. 753 , 105 S.Ct. 1611 , 84 L.Ed.2d 662 (1985), a special category of bodily searches we shall look at briefly, infra. There is a double reason, of course, for putting a brake on the proliferation of legally cognizable levels of intrusiveness. There is only one reason for having a legally cognizable level of search, except of course for poetic purposes, 2 and that is to condition the resort to such a search by requiring a legally cognizable level of justification. A distinct category of search needs a distinct justification, but there are simply not that many possible levels of justification available.

Without some workable burden of production by which to justify a more intrusive search, the whole reviewing process could degenerate into standardless and largely subjective appellate second-guessing. ⁴¹⁰ An even more obvious reason to curb the proliferation of categories is that the whole purpose of the Fourth Amendment is to make sure that the police officer, when searching and seizing, acts reasonably. If we create a metaphysical problem so multi-layered and intricately complex that no policeman will ever understand it, we reduce the Fourth Amendment to a nullity. A search for evidence is not a Platonic dialogue. As Justice Rehnquist observed in United States v. Montoya de Hernandez, 473 U.S. at 541 , 105 S.Ct. 3304 , “subtle verbal gradations may obscure rather than elucidate the meaning of the provision in question.” The Strip Search As a Big-Tent Category The goal has to be one of simplification.

Even without such flourishes as the “reach-in” search at the near end of the strip search continuum and the visual body cavity search at the far end, the strip search proper could itself easily be treated as multi-layered by those who enjoy such elaboration, if we allowed proliferation to go unchecked. A strip search entails progressive disrobing. With the special concerns being the invasion of privacy and the subjecting of the searchee to embarrassment, the subject who stands completely nude before the inquisitive eye of the officer or matron will presumably feel more compromised than will another subject just loosening the necktie or unbuttoning the top button of a shirt or blouse. Be that as it may, both at those extremes and at numerous points in between, a manageable regime of Fourth Amendment justification demands a bright-line formula.

A workable standard of judicial review of police behavior simply cannot insist upon one level of justification for the removal of the outer pants and a higher level of justification for the removal of the underpants. Although both the level of exposure and the level of embarrassment can be progressive, there is no legally cognizable categorical distinction between a full strip search and a half strip search or between a three-quarter strip search and a one-quarter strip search. Unless judicial review is to be reduced to unbounded de novo and subjective balancing, a single identifiable justification must suffice for a ⁴¹¹ single and undivided strip search, even if its spectrum is a broad one. The strip search technique described by the Baltimore County police for the search in this case and in similar cases was one involving, almost of necessity, progressive disrobing.

At the suppression hearing, Detective Stadler explained the procedure routinely employed: We start by asking them to remove one article of clothing at a time. If they start with their shirt, we go through the shirt and check it inside out, pockets, seams, check for any hidden pockets that may have been manufactured later. Some people have inside pockets that they put in later. We only search one article of clothing at a time.

Once we are done searching it, we have to ask the person to remove the next article of clothing. We get to the point where they are down to just their undergarments, and at that point we ask them to remove undergarments, bend down, squat and cough, and if nothing is recovered we give them their clothing. Q: What is the purpose of asking them to bend down, squat and cough? A: Just to make sure they don’t have anything inside the crevices that we couldn’t see if they were standing.

(Emphasis supplied). He self-evidently described incremental stages of a single legally cognizable level of searching and did not advert to six to ten different levels of searching with six to ten incremental levels of justification. The Extreme Ends of the Strip Search Continuum A. The Reach-in Search: How then do we reduce proliferation? The same rationale of categorical inclusion commends itself at both ends of the strip search continuum as well as in the middle.

At the near end of the continuum, the so-called “reach-in” searches would seem to qualify as among the least invasive of the strip searches, at least in terms of exposing the searchee’s nudity. A “reach-in” search, at least as described by the three dissent ⁴¹² ing judges in Paulino , might, moreover, represent nothing more invasive than the far end of the routine search incident continuum and not even qualify as a strip search requiring some incremental justification. “Reach-in” searches may, indeed, flitter back and forth between the two larger categories on an ad hoc basis, as one of them most assuredly did in Paulino by a vote of four judges to three. In no event, however, does the so-called “reach-in” search qualify as a legally cognizable category of its own. It’s a convenient descriptive term, and that’s it.

B. The Visual Body Cavity Search: At the far end of the strip search continuum, the same categorical inclusiveness of the strip search should also almost certainly prevail. The so-called visual body cavity search does not involve the police probing into such a cavity. It involves only the careful scrutiny of the mouth of such a cavity, just as the searcher should carefully scrutinize every other inch of the naked human body in the course of a thorough strip search. The generative purpose of a strip search, after all, is to determine if drugs (or some other possible objects of the search) are hidden somewhere on or in the body of the searchee.

The examination, therefore, should not be nonchalant or one that discreetly looks away. If a plastic baggy or other suspicious object is seen protruding from the mouth of the anus or the vagina, it may, of course, be seized, precisely as it could be seized if seen protruding from the teeth or the nostrils of the searchee. The searchee may unquestionably be ordered to unclench the fist to see what may be hidden therein or to lift the arms so as to reveal what might be tightly pressed under the armpits. One may be ordered to lift the breast to see if an object lies hidden in its crease or to spread the legs to make sure that an object of the search is not obscured between legs pressed tightly together.

Bending and squatting is simply part of the same drill. All of this is an integral part of the strip search itself. See DaVee v. Mathis, 812 S.W.2d 816, 826 (Mo.App.1991) (“The body cavity search in this case was essentially a thorough strip search.”). ⁴¹³ The genitalia are not exempt. They are an integral part of the body that is being searched.

It would be a poor search that ignored them. Discreetly to avert one’s glance could qualify as investigative misfeasance. As the searchee stands naked in front of the examiner in a routine strip search, the male genitalia are fully exposed. If a timid male were to stand with his hands covering his genitalia, he may be ordered to remove them so as not to obstruct the view.

That order would not ratchet the search upward onto a higher level requiring some greater justification. By the same token, it can hardly be maintained that the scrutiny of the female genitalia requires a higher level of Fourth Amendment justification than does the scrutiny of the male genitalia. Such a gender