State v. Nieves

BATTAGLIA, J. This case requires us to consider whether a strip search conducted incident to a lawful arrest for a minor traffic offense is reasonable under the Fourth Amendment. We conclude that, under the circumstances of this case, the strip search conducted incident to arrest for a minor traffic offense was unreasonable, and thus, violative of the Fourth Amendment. I. Background A. Facts On January 22, 2002, at approximately 7:45a.m., Officers Jason Ackerman and Jason Dietz of the Hagerstown Police Department, were on patrol in their vehicle, in the area of Wakefield Road and West Franklin Street. They had stopped their vehicle approximately six feet behind a burgundy Toyota Takoma truck, which was sitting at the intersection stop sign. ⁵⁷⁶ While the officers were behind the truck, they noticed that the driver, later identified as Chris Nieves, was having “some kind of problem around the shifting area.” The truck then began to drift back, “as if the clutch was engaged and it wasn’t in gear,” and struck the officers’ vehicle.

Officer Ackerman got out of the patrol car, approached Nieves, and asked Nieves, the sole occupant of the truck, for a valid driver’s license. Nieves responded that he did not possess a valid driver’s license in any state or any photo identification. After the officers reported the accident to police dispatch, they learned that the truck was registered to a female who had been reported missing by her parents ten days earlier. In response to their question about his identity, Nieves replied that his name was “Nathan Nieves” and that his birth date was June 26, 1976.

A subsequent search of police records failed to identify any person under that name. During the encounter, Nieves appeared “calm and relaxed” to the officers. A third police officer, Jason Batistig, arrived at the scene within a matter of minutes, pursuant to police department policy, in order to investigate the accident involving the police patrol car. Officers Batistig and Dietz began to question Nieves about his identity and the truck’s ownership.

When asked again by the officers for his identity, Nieves supplied the same birth date but instead gave a different first name, “Chris,” with the same last name. The dispatcher ran a search for “Chris Nieves” and found that Nieves’ driving privileges were suspended and that a state identification card had been issued to him. When asked how he came to be in possession of the truck, Nieves responded that “he got it from a guy named Mike” from West Virginia. Officer Batistig stated that Nieves was then a little nervous, fidgety, and evasive during the interrogation.

Nieves was placed under arrest for giving false information to the police and for obstructing a police officer. Nieves consented to a pat down, after Officer Ackerman requested permission, to insure that Nieves did not have weapons, because a crime could have been committed in light ⁵⁷⁷ of the fact that a “female was missing.” During the pat down, Officer Ackerman found a roll of money totaling $377.00 in Nieves’ pocket. The officers then searched the truck that Nieves was driving and found no contraband or weapons. Officer Batistig thereafter transported Nieves to the police station.

After Officer Batistig and Nieves arrived at the Hagerstown police station, they were met by Lieutenant Richard Johnson, who was investigating the disappearance of Melissa Langdon, the registered owner of the truck Nieves was driving. Based upon information provided by Langdon’s parents, Lieutenant Johnson was aware that Langdon’s disappearance was allegedly linked to drugs. Lieutenant Johnson immediately recognized Nieves as having been arrested twice in the year 2000 for drug offenses. 1 Although not aware of the $377.00 found on Nieves’ person, Lieutenant Johnson ordered a strip search of Nieves during the booking procedures based upon “the information regarding the missing person and the prior history of drugs.” At the request of Lieutenant Johnson, Detective Schultz conducted the strip search, which produced two small plastic baggies containing individually wrapped baggies of cocaine that were protruding from Nieves’ rectum. B. Procedural History On January 22, 2002, Nieves was charged with possession of cocaine, 2 possession with intent to distribute ⁵⁷⁸ cocaine, 3 and five minor traffic violations: Failure to control speed, 4 driving without a valid license, 5 negligent driving, 6 ⁵⁷⁹ giving a false name, 7 and giving false accident report information. 8 Nieves was also charged with the common law crimes of obstructing and hindering a police officer.

Prior to trial, Nieves filed a motion to suppress the cocaine that was seized during the strip search arguing that the arrest was unlawful and the strip search was unreasonable under the Fourth Amendment. On May 22, 2002, a suppression hearing was held on the motion, during which the court heard testimony from Officers Jason Ackerman, Jason Batistig, and Lieutenant Richard Johnson, and admitted the stipulated testimony of Detective Schultz. The officers’ testimony recounted the facts as they have been presented here. In an order dated June 7, 2002, the Circuit Court denied Nieves’ motion to suppress stating that “detaining the defendant under the totality of the circumstances and the subsequent search were reasonable.” On October 8, 2002, the case proceeded to a bench trial in which Nieves was convicted of possession with intent to distribute cocaine and the lesser included offense of possession of cocaine.

Subsequently, Nieves was sentenced to ten years imprisonment without the possibility of parole. He was also convicted of driving without a license, negligent driving, and failure to control speed, for ⁵⁸⁰ which the court imposed monetary' fines. The court found Nieves not guilty of the charges of obstructing an officer, giving false information, and giving false accident report information. On appeal to the Court of Special Appeals, Nieves argued that the Circuit Court’s denial of the suppression motion should be reversed because the officers lacked probable cause to arrest him.

Nieves also argued that the officers lacked reasonable suspicion to strip search him subsequent to his arrest for a minor traffic offense and that the search was unconstitutional as violative of the Fourth Amendment. The Court of Special Appeals addressed the probable cause issue and found that the officers lacked probable cause to arrest Nieves for obstructing an officer. The court found, however, that the officers did have probable cause to arrest Nieves for the multiple traffic violations. Because probable cause existed, the court reasoned, a search incident to the arrest was permissible under the circumstances. 9 The Court of Special Appeals then turned to the question of whether the officers had reasonable, articulable suspicion to strip search Nieves incident to arrest for minor offenses and concluded that the strip search was unreasonable under the Fourth Amendment.

The court applied a balancing test by weighing Nieves’ privacy interests against the government interest in conducting the strip search. In applying the balancing test, the intermediate appellate court held that strip searches incident to an arrest for a minor offense should not occur unless the arresting officer has a reasonable, articulable suspicion that the individual is presently in possession of weapons or contraband. The court further reasoned that conducting a strip search solely on Nieves’ past criminal record would create a per se rule that would shift the determination of reasonable suspicion from the individual arrestee to a class or category of offenders. Additionally, the court noted ⁵⁸¹ that it was “far too great a leap to conclude that any possible narcotics involvement of the missing female ipso facto carried over to [Nieves] simply because he was the driver of the vehicle.” Thus, the court concluded that based upon the totality of the circumstances, the officers lacked reasonable, articulable suspicion to conduct the strip search and reversed the judgment of the trial court.

The State filed a petition for a writ of certiorari in this Court to consider the following question: Did the Court of Special Appeals err when it determined that the strip search conducted by the police was unreasonable under the Fourth Amendment? We granted the petition and issued the writ of certiorari. State v. Nieves, 380 Md. 617 , 846 A.2d 401 (2004). We hold that under the circumstances of this case, the strip search was unreasonable as a search incident to arrest for a minor crime, and therefore, Nieves’ motion to suppress the evidenced seized from the search should have been granted.

Thus, we affirm the judgment of the Court of Special Appeals.

II

Standard of Review In reviewing a Circuit Court’s grant or denial of a motion to suppress evidence under the Fourth Amendment, we ordinarily consider only the information contained in the record of the suppression hearing and not the trial record. Laney v. State, 379 Md. 522, 533 , 842 A.2d 773, 779 (2004); Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372, 376 (2003) (quoting State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660, 663-64 (2002)) (citing Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491, 497 (1999)). We view the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the prevailing party on the motion. Laney, 379 Md. at 533 , 842 A.2d at 779 ; Dashiell , 374 at 93, 821 A.2d at 376 -77 (quoting Collins, 367 Md. at 707 , 790 A.2d at 664 )(citing Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990)).

Although we extend great deference to the hearing judge’s findings of fact and will not disturb them unless clearly erroneous, we review, independently, the application of the law ⁵⁸² to those facts to determine if the evidence at issue was obtained in violation of the law and, accordingly, should be suppressed. Laney, 379 Md. at 533-34 , 842 A.2d at 779-80 ; Dashiell, 374 Md. at 93-94 , 821 A.2d at 378 (citing Lancaster v. State, 86 Md.App. 74, 95 , 585 A.2d 274, 284 (1991)); State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439, 444 (2003).

III

Discussion The State asserts that the Court of Special Appeals erred in holding that the strip search was unreasonable under the Fourth Amendment because the search was not supported by reasonable, articulable suspicion that Nieves was concealing a weapon or contraband on his person. In the State’s view, the reasonable suspicion standard for conducting strip searches incident to arrest requires a minimal level of objective justification and should be based upon the totality of the circumstances when assessing the reasonableness of the officer’s basis for conducting the strip search. According to the State, because Nieves was driving the truck of a missing person suspected of being involved in drug activity, had failed to properly identify himself when questioned by the police, and had a criminal history involving drugs, reasonable, articulable suspicion justifying the strip search in this case had been created. Consequently, the State argues, the judgment of the intermediate appellate court should be reversed.

Nieves’ argument, quite understandably, adheres to the analysis of the Court of Special Appeals. He maintains that the test for reasonableness of the officer’s basis for conducting the strip search involves balancing the privacy interests of the person being searched against the government’s need for conducting the search. Nieves argues that the police must have reasonable, articulable suspicion to conduct a strip search under the search incident to arrest exception to the Fourth Amendment, when the arrest is for a minor traffic offense. Nieves asserts that Lieutenant Johnson did not have reasonable, articulable suspicion that Nieves was carrying weapons or contraband.

Even considering the totality of the circumstances, Nieves maintains that Lieutenant Johnson based his ⁵⁸³ decision to order the strip search solely on Nieves’ prior criminal history and his connection to a missing girl’s truck. Those circumstances, according to Nieves, do not amount to reasonable, articulable suspicion justifying a strip search incident to arrest. For the reasons stated below, we agree. A. Fourth Amendment and Search Incident to Arrest The Fourth Amendment of the United States Constitution, made applicable to the State of Maryland through the Fourteenth Amendment, guarantees individuals the right to be secure in “their persons, houses, papers and effects against unreasonable searches and seizures.” Mapp v. Ohio, 367 U.S. 643, 647 , 81 S.Ct. 1684, 1687 , 6 L.Ed.2d 1081, 1085 (1961); Laney, 379 Md. at 545 , 842 A.2d at 786 .

It is axiomatic that the Fourth Amendment only prohibits those searches and seizures that are unreasonable under the circumstances. See Carter v. State, 367 Md. 447, 458 , 788 A.2d 646, 652 (2002) (citing Gadson v. State, 341 Md. 1, 9 , 668 A.2d 22, 26 (1995)), cert denied, 517 U.S. 1203 , 116 S.Ct. 1704 , 134 L.Ed.2d 803 (1996); Little v. State, 300 Md. 485, 493 , 479 A.2d 903, 907 (1984). 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. Bell v. Wolfish, 441 U.S. 520, 559 , 99 S.Ct. 1861, 1884 , 60 L.Ed.2d 447, 481 (1979).

Furthermore, it is well established that warrantless searches are per se unreasonable under the Fourth Amendment absent some recognized exception. Gamble v. State, 318 Md. 120, 123 , 567 A.2d 95, 97 (1989). A search incident to a lawful arrest is one of the well delineated exceptions to the warrant requirement. See Carter, 367 Md. at 460-61 , 788 A.2d at 653-54 ; State v. Evans, 352 Md. 496, 516 , 723 A.2d 423, 432-33 , cert denied, 528 U.S. 833 , 120 S.Ct. 310 , 145 L.Ed.2d 77 (1999); Ricks v. State, 322 Md. 183, 188 , 586 A.2d 740, 743 (1991) (citing Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969)). ⁵⁸⁴ The Supreme Court in Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), articulated the bases for a search incident to arrest, those being, “to remove any weapons that 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.” Id. at 763 , 89 S.Ct. at 2040 , 23 L.Ed.2d at 694 ; see also United States v. Edwards, 415 U.S. 800, 802-03 , 94 S.Ct. 1234, 1237 , 39 L.Ed.2d 771, 775 (1974); United States v. Robinson, 414 U.S. 218, 226 , 94 S.Ct. 467, 472 , 38 L.Ed.2d 427, 435 (1973); Carter, 367 Md. at 460 , 788 A.2d at 653 .

Likewise, in United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), the Court allowed a full search of the person, including a pat-down of his pockets and their contents as incident to a lawful arrest. Id. at 221-24 , 94 S.Ct. at 470-71, 38 L.Ed.2d at 433-34 . In Robinson , a police officer suspected the defendant of driving without an operator’s permit based upon a previous check of the defendant’s operator’s permit four days earlier. Id. at 220 , 94 S.Ct. at 469-70, 38 L.Ed.2d. at 432.

The defendant was stopped by the officer, arrested for driving without a valid operator’s permit, and patted down after getting out of the vehicle. Id. During the pat-down, the officer found a cigarette pack in the defendant’s front coat pocket, which the officer opened and found several vials of heroin. Id. at 222-23, 94 S.Ct. at 470-71, 38 L.Ed.2d at 434 .

The officer then proceeded to search the defendant’s waist, pants, and remaining pockets. Id. Subsequently, the defendant was convicted for possession of heroin and he appealed challenging the validity of the area of his person. Id. at 220 , 94 S.Ct. at 469, 38 L.Ed.2d at 432 .

Chief Justice Rehnquist, writing for the Court, explained that the decision of an arresting officer to search a person incident to a lawful arrest “is necessarily a quick ad hoc judgment” and that the potential danger that the arrestee is carrying weapons provides “an adequate basis for treating all custodial arrests alike for purposes of [the] search justification.” Id. at 235 , 94 S.Ct. at 476-77, 38 L.Ed.2d at 440 . ⁵⁸⁵ Consequently, the Court held that police officers are not required to assess the likelihood that the arrestee is carrying weapons or concealing evidence; rather, the officers may undertake a “full search” of the arrestee. Id. The Court established that a full search incident to arrest can involve “a relatively extensive exploration of the person,” aimed toward locating weapons, or evidence that could be concealed or destroyed. Id. at 227 , 94 S.Ct. at 473, 38 L.Ed.2d at 436 (quoting Warden v. Hayden, 387 U.S. 294, 310 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967)); see also Carter, 367 Md. at 461 , 788 A.2d at 654 (recognizing that the right of an officer to search a person “follows automatically from the arrest.”) (citing Evans, 352 Md. 496, 508 , 723 A.2d 423, 429 , cert denied, 528 U.S. 833 , 120 S.Ct. 310 , 145 L.Ed.2d 77 (1999)).

In United States v. Edwards, 415 U.S. 800 , 94 S.Ct. 1234 , 39 L.Ed.2d 771 (1974), the Court held that jail administrators could exchange and search the clothes of an individual who had been arrested and detained. Id. at 801-02 , 94 S.Ct. at 1236, 39 L.Ed.2d at 775 . The Court stated that exchanging and searching the detainee’s clothes for evidence one day after his arrest was a normal search incident to a custodial arrest and that the delay in the search was reasonable because the search could have been conducted at the time of the arrest. Id. at 805 , 94 S.Ct. at 1238, 39 L.Ed.2d at 777 .

The Court observed that it is customary to search an arrestee who is being processed for confinement and that such searches are reasonable. Id. at 804-05 , 94 S.Ct. at 1238, 39 L.Ed.2d at 776 . See also Abel v. United States, 362 U.S. 217 , 80 S.Ct. 683 , 4 L.Ed.2d 668 (1960) (holding that a search of a suitcase that could have been made at the arrest scene was allowed at a later time in the detention center). Nevertheless, the Supreme Court has not addressed the validity of strip searches incident to an arrest; in Illinois v. Lafayette, 462 U.S. 640 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983), the Court explicitly stated that, “[w]e were not addressing in Edwards , and do not discuss here, the circumstances in which a strip search of an arrestee may or may not be appropriate.” Id. at 646 n. 2, 103 S.Ct. at 2609 n. 2, 77 L.Ed.2d at 71 n. 2. ⁵⁸⁶ B. Strip Searches 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. See William J. Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L.Rev. 665, 667 (2000). Some have defined strip searches to also include a visual inspection of the genital and anal regions of the body. Id.

Black’s Law Dictionary (7th Ed.2004) 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.” Likewise, in the instant case, the Hagerstown Police Department procedural rules (Departmental Rules), define a strip search as “any search of an individual requiring the removal or rearrangement of some or all clothing to permit the visual inspection of the skin surfaces of the genital areas, breasts, and/or buttocks”. See Departmental Rules, § 18.11.2.1. 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. Simonitsch, supra, at n. 9.

Based upon the record, it appears that a strip search was conducted rather than a physical body cavity search. It is clear that strip searches by their very nature can be degrading and invasive. See Wood v. Clemons, 89 F.3d 922, 928 (1st Cir.1996) (stating that “a strip search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of an individual.”); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) (noting that “strip searches involving the visual inspection of the anal and genital areas [are] .... demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.”); John Does 1-100 v. Boyd, 613 F.Supp. 1514, 1522 (D.Minn.1985)(commenting that the “experience of disrobing and exposing one’s self for visual inspection by a stranger ⁵⁸⁷ clothed with the uniform and authority of the state, in an enclosed room inside a jail, can only be seen as thoroughly degrading and frightening.”); Deserly v. Department of Corrections, 298 Mont. 328 , 995 P.2d 972, 977 (2000) (noting that being strip searched “is an embarrassing and humiliating experience”); Draper v. Walsh, 790 F.Supp. 1553, 1559 (W.D.Okla.1991) (stating, “Strip searches can be described by a number of adjectives, but being dignified is not one of their number”). 10 Even though intrusive, however, strip searches have been permitted under the Fourth Amendment in various settings. See Bell, 441 U.S. at 523-24 , 99 S.Ct. at 1864 , 60 L.Ed.2d at 458-59 (strip search allowed of pretrial detainee in a detention center); United States v. Dorlouis, 107 F.3d 248 (4th Cir.1997) (strip search in a police van was allowed because the defendant was suspected of hiding money related to his arrest for drug possession).

Strip searches commonly have been upheld for two reasons: (1) as a means to maintain the security of the detention facility; and (2) as a search incident to arrest. See 3 Wayne LaFave, Search and Seizure § 5.3(a) at 108-09 (3d ed.1996). Although this Court has not specifically addressed the issue of strip searches in an institutional setting or as a search incident to arrest, various courts have done so in the context of a suit brought by the arrestee for damages for violation of his/her ⁵⁸⁸ constitutional rights and have delineated various factors to be assessed. In Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), the Supreme Court addressed the permissible scope of searches incident to arrest that occurred in association with pretrial detention.

Id. at 528 , 99 S.Ct. at 1866 , 60 L.Ed.2d at 458 . Several defendants brought a class action suit challenging detention policies requiring pre-trial detainees to be subjected to a “visual body cavity” search every time the detainee had contact with individuals outside of the institution. Id. The Court assessed the reasonableness of these searches by stating: 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. Id. at 559 , 99 S.Ct. at 1884 , 60 L.Ed.2d at 481 . Because penal institutions face unique security challenges arising from the possibility of having contraband and weapons brought into the institution, the Court held that the searches were reasonable and could be conducted on less than probable cause that the detainee was carrying weapons or contraband.

Id. at 559 , 99 S.Ct. at 1884-85 , 60 L.Ed.2d at 481-82 . Justice Powell, concurring in part and dissenting in part, suggested that reasonable suspicion should be the level required to justify the “visual body cavity” searches that occurred in the case. Id. at 563 , 99 S.Ct. at 1886 , 60 L.Ed.2d at 484 . Since Bell , a number of courts that have examined institutional policies attempting to prevent detainees from bringing weapons and contraband into the institution and have required that the strip search be based upon reasonable suspicion that the individual was carrying weapons or contraband at the time ⁵⁸⁹ of arrest.

See Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997) (holding that there must be reasonable suspicion that the detainee will carry weapons or contraband into the prison or the detainee is concealing evidence); Justice v. Peachtree City, 961 F.2d 188 , 193 (11th Cir.1992) (explaining that the officers must have reasonable suspicion that the detainee is concealing evidence or will bring weapons or drugs into the prison); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989) (noting that an officer could have reasonable suspicion that a detainee is concealing weapons or contraband if the crime was related to a major felony); Watt v. Richardson Police Dept., 849 F.2d 195, 198 (5th Cir.1988) (explaining that reasonable suspicion that the defendant was carrying weapons or contraband did not exist solely based upon the defendant’s criminal history); Weber v. Dell, 804 F.2d 796, 800 (2nd Cir.1986) (holding that the officers lacked reasonable suspicion to believe that the defendant was concealing contraband because the defendant had only been arrested for falsely reporting a crime, which did not relate to contraband); Stewart v. County of Lubbock, 767 F.2d 153, 156-57 (5th Cir.1985) (holding that jail authorities had no reasonable suspicion to believe that the defendant was carrying weapons or drugs simply because he had a prior drug history); Mary Beth G., 723 F.2d at 1271 n. 7 (held strip search of detainees arrested for minor offenses unreasonable because the officers lacked reasonable