Faith v. State , 242 Md. App. 212 ( 2019 )

Shawna Lynn Faith v. State of Maryland, No. 1040, Sept. Term 2018. Opinion filed on
August 2, 2019, by Berger, J.
CRIMINAL LAW - CONSTITUTIONAL LAW - FOURTH AMENDMENT -
REASONABLENESS OF INTIMATE ROADSIDE SEARCH
The non-exigent visual inspection of the genital area of a person suspected of concealing
controlled dangerous substances, in daylight, while the person stood between two police
cruisers with emergency lights flashing, along the shoulder of an interstate highway, as
moderate to heavy traffic passed and the searchee’s companion and young child watched,
violated the searchee’s Fourth Amendment right to be free from unreasonable searches.
Circuit Court for Frederick County
Crim. No. 10-K-17-060009
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1040
September Term, 2018
______________________________________
SHAWNA LYNN FAITH
v.
STATE OF MARYLAND
______________________________________
Berger,
Leahy,
Harrell, Glenn T., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Berger, J.
______________________________________
Filed: August 2, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-08-02 11:51-04:00
Suzanne C. Johnson, Clerk
Based on evidence recovered during a warrantless search at the scene of a traffic
stop, the Circuit Court for Frederick County, in a bench trial, convicted Shawna Lynn Faith
(“Faith”), appellant, of possessing cocaine with the intent to distribute. Faith contends that
the suppression court erred in denying her request to exclude “the evidence recovered from
a warrantless strip search . . . conducted on the side of Interstate 70 in the presence of two
civilians and other police officers in which her underwear was pulled from her body and
her vaginal area exposed[.]”
This appeal requires us to decide whether such a visual body search, in which a
female officer conducted a “look-in” at Faith’s genital area, was reasonable under the
Fourth Amendment, given the public manner and location in which that search occurred.
Because 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 a more private setting that
would lessen the intrusion into Faith’s personal privacy, we shall reverse her conviction.
In doing so, we revisit the constitutional limits on sexually invasive searches like the one
at issue here.
BACKGROUND
Before trial, Faith moved to suppress both the controlled dangerous substances
(“CDS”) recovered and the statements she made during and after the challenged search, on
the grounds that (a) this was a “visual body cavity” search that is unreasonable under
constitutional standards, and (b) her statements were obtained from a custodial
interrogation that occurred before she received Miranda advisements. The suppression
court denied the motion as to the drug evidence but granted it as to Faith’s statements
before she was Mirandized. Because the sole issue in this appeal is whether the court erred
in failing to suppress the drug evidence, our focus is on the suppression record summarized
below. See Lewis v. State, 398 Md. 349, 358 (2007).
At 7:18 p.m. on April 21, 2017, Frederick County Sheriff’s Deputy Douglas Storee1
“was doing traffic enforcement” in a marked police vehicle “on Interstate 70 at Route 144,
the New Market Inn,” which is “at Exit 55.” Storee observed Faith’s vehicle “following
too closely, within a car and a half length” of another vehicle traveling westbound at the
70 mph speed limit in “moderate to heavy traffic[.]” When Storee initiated a traffic stop,
Faith’s vehicle pulled over on the right shoulder of the highway “at South Street[.]”
Faith was in the driver’s seat, a female companion was in the passenger seat, and
Faith’s three-year-old son was in the back seat. Faith was wearing cut-off jean shorts and
a top that did not cover her arms.
While informing Faith of why he made the stop, Deputy Storee noticed track marks
on her arms, which “is common for someone that’s administering CDS intravenously.”
The deputy asked where Faith was coming from. She answered that they were returning
home to Cumberland, after taking “someone else’s child down to Baltimore[.]” Storee
considered a five-hour round trip for that purpose to be “odd.” During the conversation,
he observed that the two women “seemed to be squinting, which appeared . . . that maybe
1
Deputy Storee’s first name appears in subpoenas rather than the suppression
hearing transcript.
2
they were under the influence of drugs” because “[s]ometimes eyes can be sensitive to
light.”
Storee returned to his vehicle and requested a K-9 unit at the scene. A marked
cruiser occupied by Deputy Miller Yackovich and K-9 Officer Ike arrived two minutes
later, at 7:22 p.m., while Storee was still completing paperwork regarding the stop. In
accordance with standard procedures, the occupants were asked to vacate the vehicle before
the canine scan began. After pat-down searches yielded no suspected weapons, all three
individuals were “walked back” from Faith’s car to Storee’s vehicle.
The dog alerted at the doors of Faith’s car. Deputy Storee, having called for an
officer to “conduct a female search[,]” proceeded to search the vehicle.
Storee’s search yielded drug paraphernalia and crack cocaine. A “glass pipe” with
burnt residue that Storee believed to be crack cocaine was found under the driver’s seat. A
“metal spoon” commonly used to mix and inject heroin was “in the driver’s compartment
door” with “a whitish-tannish residue” that Storee, “based on [his] training and
experience,” believed to be heroin. In a purse “on the floorboard” by the front passenger
seat was “a bag of crack cocaine[,]” divided into Ziploc packets. That purse contained
identification belonging to Faith’s passenger.
While Storee was searching the vehicle, Faith, her companion, and her child stood
with Deputy Yackovich “on the bumper along the passenger side of” Storee’s vehicle,
which was “lined up behind the suspect vehicle.” Yackovich’s cruiser was next in line
behind Storee’s vehicle. Both police cars had their lights flashing throughout the stop.
3
While that vehicle search was underway, Sergeant Amanda Ensor arrived, parking
her marked vehicle, also with lights flashing, as the fourth car lined up along the shoulder
of Interstate 70. Deputy Storee had done “multiple” “female searches” with Sergeant Ensor
“[i]n the field[.]” The sergeant also had “done female searches on [Deputy Yackovich’s]
traffic stops[.]”
According to Yackovich, he did not know whether Sergeant Ensor routinely “looks
underneath females’ clothes” because “[t]he way she searches is up to her.” According to
Storee, “typically we – especially if it’s a female, they’ll take them to the rear of the vehicle,
away from everybody else.” Storee explained that during Sergeant Ensor’s searches, he
does not “look because things happen . . . . from people doing things on their own, not
necessarily just because of a search.” Although he claimed that he “never expect[s]
someone’s vagina is going to be exposed on the side of the road[,]” he acknowledged that
in the past, “things happened where people have pulled their clothes off in their own
excitement[.]”
While it was still daylight outside, Sergeant Ensor searched Ms. Faith. As moderate
to heavy traffic passed on the highway, and Faith’s companion and son stood with Deputy
Yackovich at the front of Deputy Storee’s vehicle, Sergeant Ensor “took Ms. Faith back to
the rear of” that vehicle, a car-length away. According to Deputy Storee and Deputy
Yackovich, Faith was searched while standing “between [Storee’s] vehicle and Deputy
Yackovich’s vehicle[,]” while “facing into oncoming traffic,” with her back to the male
officers and vehicle passengers. During the search, both deputies testified, they were
4
“facing away” from Faith because “obviously there’s a privacy issue.” Yet Storee did “try
to keep an eye as best [he could] on Sergeant Ensor[.]” And Faith’s companion, who was
holding her son, was next to Deputy Storee.
Sergeant Ensor testified that her search of Ms. Faith was consistent with her routine
practice for roadside searches involving suspected CDS. On direct, she recounted that
during her fifteen years as a police officer, she had been “frequently called to conduct
female searches.” She had “[s]everal hours at the academy in the detection of deception
and behavior” and “too many” trainings “to name[,]” “in addition to conducting numerous
arrests [herself] and assisting and aiding with other arrests for deputies.” She estimated
that she had conducted “[t]housands” of “female searches[.]”
When asked about her typical approach to such a search, she detailed her standard
operating procedure, as follows:
[PROSECUTOR]: And what’s your procedure when you
arrive on the scene to conduct a female search?
[SGT. ENSOR]: Systematically for an incident like this
where we’re on a heroin interdiction operation and we are
specifically looking for criminal behavior. I have a
systematic approach to my searches. Basically, I do take
the person’s – their feelings, everything into account. Their
reaction to me, their behaviors, their statements, their
inconsistencies in stories; and my searches stem from there,
but they’re always systematic.
I initially ask them if they have anything on them. I let
them know specifically if they do and I’m typically very
confident that they do have something on them that I will find
it. I ask if they have anything that’s going to poke me, stick
me, anything like that. Sometimes they will be honest and say
yes. Others, they won’t tell you. And in this specific case, the
5
defendant had obvious track marks on her arms, which are
consistent with intravenous needle drug use.
So my initial search, I start with the upper body and –
let me back up. I’ll take – if it’s a female, I take them away
from the male deputies and anyone else that’s in the vehicle,
and I either position them behind the first police vehicle
w[h]ere the public can’t see them or what I’m doing in my
search. And the other deputies can’t see them, because
obviously I’m the only female on the scene.
They call me there for a reason. I’ll search their
waistband. I’ll ask them to unbutton their pants and pull
their pants away from them. At no point in time do I touch
them or their private areas. I ask them to pull their pants
away from them. If I don’t see anything obvious, that would
be secreted or, you know, in their underwear, I’ll move up and
I’ll say I want you to leave your shirt down so no one else can
see you, but if you’re wearing a bra, pull it away from you.
And I will bend down and look up underneath their
shirt. So I’m not touching them. Again, I’m not touching
them. I’ve hand [sic] instances where women will hold one
side of their bra in and pull the other out, which would tell me
that they’re hiding contraband in that area. And again, that’s
where I find it.
In this specific situation, I pull her underwear, her
shorts out away from her.
[PROSECUTOR]: Okay, we’ll get to that. But first of all, so
now when you ask them to do this, are you in any way exposing
their intimate parts?
[SGT. ENSOR]: No, absolutely not. I say pull them away
from you and I specifically say do not pull them down, just
pull them away from you, because I will be honest. I have
people on the side of the road that have been arrested and
they know the process of strip searches and being in
detention, and they have absolutely no problem flashing the
entire highway.
6
And I specifically say, don’t pull your shirt up.
Leave it down. Just hold it away from you. And I’m going
to look up underneath your shirt to make sure you don’t
have anything. And some will just expose everything and
not – you know, and it’s no big deal to them. And others,
it’s just like I said – I use a systematic approach for the
searches.
[PROSECUTOR]: Okay, and do you at any point during this,
touch the female at all? When you’re looking either – like
when you ask them to pull their waistband away or when
you’re looking up underneath their bra?
[SGT. ENSOR]: No, in those two instances, absolutely not. I
don’t touch them. In some instances, depending on what
they’re wearing, if I feel like they haven’t – you know, they
haven’t pulled them out away from them enough or that I
couldn’t really see if they have large breasts, I will use the
back of my hand to search the outside of their breasts in
the interior.
[PROSECUTOR]: Okay.
THE COURT: Do you – when you ask someone to pull their
pants out, do you see – you said nothing is exposed to anybody
else, but you can actually see?
[SGT. ENSOR]: I can see. And typically, the portion that I
can see is whether or not – I mean, I can see if they have a
pad on. I can see basically the front portion. If they’re
pulling their underwear away from the, I can see like the
front of their vagina.
THE COURT: Right.
[SGT. ENSOR]: And obviously if something is exposed, I
mean, the strangest things. Like people say, I’m on my period.
Or you know, I don’t have anything and this instance you pull
them away from you, don’t pull them down. I specifically say
that – just pull them out away from your body. And in this
specific instance, there happened to be a condom hanging
out.
7
THE COURT: Okay, so basically when you said no one could
see, nobody else could, but you could, but that’s the purpose,
you have to see because you’re conducting the search?
[SGT. ENSOR]: Absolutely.
THE COURT: You ask them specifically to pull their pants
away from their body?
[SGT. ENSOR]: I do.
THE COURT: You look in there. You’ve taken them away
from the male deputies, the public and any other people that
might be – that privacy might be invaded –
[SGT. ENSOR]: Absolutely. I’m very respectful. I’m a
female. I know what it’s like. It is, it’s an intrusion of their
privacy. And if I wasn’t 99 percent sure and confident by
their reactions and their behavior to my questions and me
interacting with them, that they were concealing something
on their person, then I would handle it differently. But 99.9
percent of the times with these searches, especially with the
influx in heroin and fentanyl coming through, I have found
contraband on them.
And that’s not looking in their private area. That’s
something that’s clearly exposed when they hold their
pants away from their body and not pull them down. I
move them – for their safety and well-being and their
privacy, I move them away for my officer safety and take
myself to another situation where I’m moving them behind
the vehicle and I’m by myself and leaving the other male
deputies up at the vehicle so that they can’t see anything.
THE COURT: Okay, so this is not a strip search?
[SGT. ENSOR]: No, absolutely no.
THE COURT: Okay, go ahead.
[PROSECUTOR]: And when you look down, when they
pull their pants away, can you see their vaginal cavity?
8
[SGT. ENSOR]: Not the cavity, no.
[PROSECUTOR]: And so now have you testified – have you
been qualified as an expert in female searches?
[SGT. ENSOR]: I have.
[PROSECUTOR]: In Frederick County?
[SGT. ENSOR]: Yes.
(Emphasis added.)
Turning to the specifics surrounding the search of Ms. Faith, the prosecutor elicited
from Sergeant Ensor that she had observed the traffic violation while she and Deputy
Storee were both positioned “in the crossover” on “I-70 facing westbound traffic[.]” After
receiving a call from Deputy Storee to come perform “a female search,” Sergeant Ensor
followed her routine practice by positioning Faith between two police vehicles for the
search, as follows:
[PROSECUTOR]: And what did you do when you did that
search?
[SGT. ENSOR]: Again, my systematic search. I asked her
to come back behind Deputy Storee’s car.
[PROSECUTOR]: And so when you asked her to come back
behind Deputy Storee’s car, where was the passenger and the
child?
[SGT. ENSOR]: They were still up at the vehicle, because
the child needed to be held by her friend. So they were still
up at her vehicle in that vicinity on the grass area of the
shoulder with Deputy Storee and Deputy Yackovich.
[PROSECUTOR]: And where did you take Ms. Faith?
9
[SGT. ENSOR]: Behind Deputy Yackovich’s canine car.[2]
[PROSECUTOR]: Okay.
[SGT. ENSOR]: And my car was behind his.
[PROSECUTOR]: And approximately how much space was
between the two vehicles, Deputy Storee’s and Deputy
Yackovich?
[SGT. ENSOR]: I would say maybe three feet.
[PROSECUTOR]: Okay. And did you take her – where did
you take her between the two vehicles?
[SGT. ENSOR]: Basically, right at the trunk. And I had
them – I will put my back to the other units and what I’ll
do is I’ll have them position themselves so that their back
is to traffic but they’re also hidden by the vehicle, so none
of the other deputies or occupants in the vehicle can see me
do my search.
[PROSECUTOR]: Okay. Did you do that with Ms. Faith?
[SGT. ENSOR]: Yes.[ 3]
(Emphasis added.)
The prosecutor then inquired about Sergeant Ensor’s statements to Ms. Faith before
the search began, eliciting the following description of her tactical approach to that
conversation:
2
Consistent with Sergeant Ensor’s initial testimony that she directed Ms. Faith “to
come back behind Deputy Storee’s car[,]” Deputies Yackovich and Storee testified that
Sergeant Ensor performed the search while Ms. Faith was standing between their two
vehicles, which put the male deputies and vehicle passengers one car length from the
search.
3
As set forth above, both Deputy Storee and Deputy Yackovich contradicted this,
testifying that Faith was positioned so that she was facing toward oncoming traffic.
10
[PROSECUTOR]: And did you have a conversation with
her?
[SGT. ENSOR]: Absolutely. I do with everyone.
[PROSECUTOR]: And what was the nature of the
conversation?
[SGT. ENSOR]: Well, obviously, the track marks that were
present on her arms, she had a child in the vehicle. I’m a
mom myself, and one of my conversations was about her
taking her child down the road to Baltimore and she explained
that she knew she needed to get clean. She had obvious track
marks on her arms. I asked her how long she’s been using,
because I genuinely care about them and getting clean, we
have a conversation about that initially. And that’s also my
way of detecting their behavior and whether or not they’re
nervous.
Inconsistencies in their stories with the passengers –
because they’ll say the last exit that they passed. She did not
in this case, but they’ll use reference points. And the other
passenger will have a completely different story. So I use that,
you know, that talking point to build my suspicion, my
reasonableness and talking to her about getting clean and
her using needles and addicted to heroin.
She was wearing extremely short shorts. And one of the
things I look for is whether or not their body is shaking.
Because typically when I’m asking personal questions about
their drug use, you know, they lie constantly to their families.
They lie to their friends about they’re going. So when I ask
questions about their drug use, they start to become
increasingly nervous.
So you know, I was watching her legs and her
demeanor. And when I started to ask the other questions about
how long have you been using, who got you hooked on that?
Like how long? And she said, I know, I need to quit. I and [sic]
reached up and looked at her arm. You know, very softly, like
turned her arm around to look at the track marks. And I noticed
that her arm was shaking really bad. Fast.
11
You know, but almost – you know, obviously not a cold
shake, but she was shaking. So that’s when I told her that
I’m going to search you. I’ve been doing this for 15 years,
and if you’re hiding something on your person or in your
vagina – I said that to her – or in your vagina, I will find it.
And it’s a tactic that I use to get them to talk to me
about, you know, what’s going on, what they might have on
them. And she still – she still denied the fact that she had
anything on her.
(Emphasis added.)
Next, the prosecutor focused on Sergeant Ensor’s inspection of Ms. Faith’s vaginal
area, as follows:
[PROSECUTOR]: Okay. And so what did you do next?
[SGT. ENSOR]: That’s where I start my systematic search.
And I start with her shorts, not pants at the time – and I’ll
say unbutton your shorts. Don’t pull them down. I’m very
specific. Unbutton your shorts, don’t pull them down. I
want you to pull them away from your body. And when
she did that is when I saw the condom protruding.
[PROSECUTOR]: Okay. And what did you do at that point?
Did you touch her?
[SGT. ENSOR]: No. I looked at her and I said, come on.
You know, like – I saw it, come on. And we actually had an
intelligible conversation about the fact that, you know, she
said it’s not mine. I don’t do coke. Dealer is in
Cumberland. I carry it back for them. They give me
heroin. It was an honest conversation that we had about what
she was holding. I didn’t touch her. I asked her to walk back
up to the car and I asked Deputy Yackovich to grab me a bag.
[PROSECUTOR]: Okay, and when she told you about the –
going up to Cumberland and all that, was that in response to a
question you asked?
12
[SGT. ENSOR]: No. It was conversation because she knew
that I saw it.
[PROSECUTOR]: So you looked at her and said come on, and
she said what?
[SGT. ENSOR]: Right, because I said, tell me if you have
anything on you. I’m going to find it. And as soon as she
pulled her pants away from her body and her underwear,
there was a clear condom that would be the shaft portion
of the condom hanging out like down in her underwear. It
was very obvious. So of course I looked at her, and I said,
come on. Like – you just lied to me. I see it. And then it
was a conversation.
It wasn’t me questioning her – whose is it? Where did
you get it? You know, I didn’t ask her any questions because I
knew it was there. I saw it. So I asked Deputy Yackovich for
a bag and she elected not to go back to be stripped searched
and said no, I can just get it myself. Fully clothes [sic].
Shorts up, underwear up. She said she could retrieve it herself
and did so, with only me watching her after Deputy Yackovich
handed me the bag.
[PROSECUTOR]: And did you offer her to go back to the
Law Enforcement Center to retrieve it?
[SGT. ENSOR]: Yes.
[PROSECUTOR]: And what did she say?
[SGT. ENSOR]: She said no, I can get it myself. I’ll get it
out.
[PROSECUTOR]: So where did she got [sic] to retrieve it?
[SGT. ENSOR]: Obviously that needed to be a little bit – a
little more private so I wouldn’t have her like squat down
behind the vehicle to get it, we walked back up to her
vehicle and she saw [sic] on the edge of the passenger seat.
And again, the deputies were not around when she was
retrieving it. I ensured that they weren’t watching her and
nobody was looking at her, not even her friend and her
13
child were in close proximity, because she specifically
didn’t want her child to see.
[PROSECUTOR]: Was this the passenger side door facing the
road or facing the shoulder?
[SGT. ENSOR]: The shoulder, facing the grass area. And
the door was obviously blocking it. Deputy Storee’s car
was behind hers. And she’s full clothed when she reaches
in her underwear and pulls the condom out of the side of
her shorts.
[PROSECUTOR]: Okay. And at any point, did she expose
her vagina?
[SGT. ENSOR]: No, and she actually – she pulled the
condom out of the side of her shorts and she put it in the
bag for me.
[PROSECUTOR]: Okay, and she was the one that suggested
that she do that, correct?
[SGT. ENSOR]: Yes. . . .
[PROSECUTOR]: Did you ask her any questions before she
said that?
[SGT. ENSOR]: No. Just about like how long have you been
using, not specific to the drugs or what I saw, no.
[PROSECUTOR]: Okay.
[SGT. ENSOR]: I just looked at her and I said come on. I
mean, it’s obvious what it is. Girls don’t – it’s not natural
for a girl to store a condom in her vagina.
[PROSECUTOR]: And after you retrieved it, did she remain
clothed the whole time?
[SGT. ENSOR]: Yes.
(Emphasis added.)
14
At that point, the prosecutor asked Sergeant Ensor to explain why she searches
suspects at the side of the road, rather than after transporting them to the Law Enforcement
Center:
[PROSECUTOR]: Why do you do a female search on the
scene as opposed to going back to the Law Enforcement
Center right away?
[SGT. ENSOR]: One, for their safety, health reasons. If
they’re carrying something like that inside of their body –
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[PROSECUTOR]: Your Honor, I think it’s relevant.
According to the case law, I mean, whether or not it’s
reasonable for them to have been doing this type of search
where they were doing it.
THE COURT: Okay. Overruled.
[PROSECUTOR]: So what’s the reasons that you do this?
[SGT. ENSOR]: Well, I mean, many factors come into play.
Number one, it’s not a strip search on the side of the road.
If there’s something concealed that I truly – I can’t see by
asking them to pull their clothing away from them, but I
still believe based on their demeanor, their inconsistences in
their stories, their body language, you know, often times they’ll
look at the other occupant that’s not close to them, whether it
be a male or female and you can see that they’re reading off of
them to see, you know, oh, crap, do they know?
Did they tell them anything? It’s body language that
I’ve watched for 15 years. So these systematic searches,
they’re not strip searches on the side of the road. At no
point in time is any part of their body exposed. If I needed
to do a strip search because I truly cannot see or can’t find
that contraband, but I have reasonable suspicion, there’s
needles in the car. There’s needle caps. There are
15
inconsistencies in their stories. And I suspect that they are
concealing something, that is when we’ll take them back
and do a strip search.
Doing these types of searches on the side of the road
when no parts of their body are exposed and they’re more
than willing to get the drugs out themselves and hand them to
me, quite honestly most of the time, the females will just give
it to me. I tell them, I am confident that you have something
on you. And they will give me the drugs.
[PROSECUTOR]: And does that negate the need for a strip
search back at the Law Enforcement Center a lot of times?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[PROSECUTOR]: As a result of this, did you need to
conduct a strip search of Ms. Faith?
[SGT. ENSOR]: No.
(Emphasis added.)
At the outset of cross-examination, defense counsel confirmed that Sergeant Ensor’s
roadside search of Ms. Faith was consistent with her frequent practice:
[DEFENSE COUNSEL]: Sergeant Ensor, you do this a lot?
[SGT. ENSOR]: Yes, sir.
[DEFENSE COUNSEL]: Okay, so how many times have you
seen somebody’s vagina on the side of the road, would you
estimate?
[SGT. ENSOR]: I’m not – can you rephrase the question? I’m
not sure what you –
[DEFENSE COUNSEL]: I’ll withdraw the question.
16
Defense counsel then elicited additional details about Sergeant Ensor’s search of
Ms. Faith:
[DEFENSE COUNSEL]: I’m going to approach with what’s
marked as Defense Exhibit No. 1. Can you flip through those
and tell me if you recognize those?
[SGT. ENSOR]: Recognize a pair of shorts?
[DEFENSE COUNSEL]: Yes. Do you recognize that outfit?
[SGT. ENSOR]: I’m not sure what you’re asking me. If
they’re similar to the ones that she was wearing, as far as length
– I don’t know if they’re the exact shorts that she was wearing,
if that’s what you’re asking me. But as far as length, with the
pockets hanging out about two inches and extremely short,
they’re similar to the ones that she was wearing, but I don’t
know it they’re the exact pair. . . .
[DEFENSE COUNSEL]: All right, so you say systematically
that your search involves two parts, one in the shorts and one
in the shirt, is that correct?
[SGT. ENSOR]: Typically, yes, where contraband is
concealed.
[DEFENSE COUNSEL]: Okay. And in this case, you looked
both in her shirt as well as in her shorts?
[SGT. ENSOR]: Shorts first. . . .
[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?
[SGT. ENSOR]: 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?
17
[SGT. ENSOR]: Away from her body, correct.
[DEFENSE COUNSEL]: And that allows you to see her
genitalia?
[SGT. ENSOR]: 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?
[SGT. ENSOR]: I saw enough of a condom coming out of
her vagina in her underwear, correct.
(Emphasis added.)
Inside the condom that Faith removed at the scene were “18 individual bags[,]” each
“weighing the same amount,” and “another bigger bag[,]” with all 19 bags containing what
“looked to be” crack cocaine. At that point, Faith “was placed under arrest]” handcuffed,
and “read . . . her Miranda rights.” Her companion was also arrested and handcuffed “after
the female search.” Thereafter, Faith
admitted that she went up to Baltimore to get drugs from a
supplier for a drug dealer back in Cumberland. That drug
dealer gets fronted drugs from a supplier in Baltimore and she
takes them back and gives them to that drug dealer in exchange
for her own personal getting drugs back from that dealer in
Cumberland.
The State argued that the search did not violate Fourth Amendment protections
because “[t]he amount of intrusion on the defendant was extremely minimal” given that
Ms. Faith “was not exposed to anyone other than Sergeant Ensor[,]” who “took every step
possible to try and ensure this defendant’s privacy.” Pointing to cases in which “the
18
intrusion was far greater[,]” the prosecutor emphasized that there was no touching or
“manipulation” of the body, no removal of clothing, and “no testimony . . . that the
passenger or her child could see anything” or “that vehicles were stopping and looking.”
To the contrary, the prosecutor argued, this roadside search “led to a benefit of the
defendant, a lesser intrusion” in that Faith did not have “to go back to the Law Enforcement
Center and have a full strip search.”
Defense counsel challenged the constitutionality of both the roadside search and the
custodial interrogation. Counsel argued that “[w]e have a strip search” under the Court of
Appeals’s definition, which expands that term beyond removal of clothing to include any
“rearrangement of some or all clothing to permit the visual inspection of the skin surfaces
of the genital areas, breast, and/or buttocks.” According to defense counsel, because Faith
was required “to unbutton her pants, to pull her pants out, to expose her vagina[,]” allowing
Sergeant Ensor “to visually observe . . . the genital vaginal cavity of Ms. Faith” where she
saw “a condom coming out[,]” the scope of the search was “a visual body cavity search[.]”
Disputing the justification for that type of search, defense counsel insisted that even
though “[t]he sergeant may think that she’s concealing drugs, . . . you can’t strip search
somebody on a hunch.” In support, counsel argued that the search could not have been
incident to arrest because “there has been no testimony that the dog hit or that they found
evidence in the car prior to this strip search taking place.” At best, he maintained, the “dog
hit” gave police “probable cause to search the car, not the former occupants.”
19
Moreover, defense counsel objected that Sergeant Ensor had no “reason to conduct
it now as opposed to in a different manner at the Law Enforcement Center or at the
detention center[.]” Regarding the manner and location of the search, counsel argued:
It was on side of 70 in front of the former occupants of the
vehicle, in front of the other deputies. And it’s in a position
where there’s three marked patrol vehicles all with their lights
flashing, moderate to heavy traffic. I think it’s a fair inference
that every single person that passes by is watching and looking
at what’s going on.
In these circumstances, counsel contended that the search was
unconstitutional:
So for all of these reasons, I think every one of these
factors cuts in favor of suppression. I think that the entire
public policy surrounding the exclusionary rule is to deter
this kind of behavior by the police. What you have is a
police officer systematically conducting strip searches on
the side of the road. And that’s a bad place for us to be.
And . . . if you exclude the evidence, sure, in this particular
case, a potential criminal may go free. But that’s the price that
we pay to make sure that this kind of behavior doesn’t continue
on and I believe that that’s the place where we are here today.
(Emphasis added.)
With respect to Faith’s incriminating statements, defense counsel argued that the
unlawful search was compounded by unlawful custodial interrogation:
What we have is an interrogation during the strip
search. She made incriminating statements. Then Ms. Faith
was Mirandized and then she gave an incriminating statement.
It’s a classic two-step interrogation procedure that should be
suppressed in violation of Miranda, in violation of the
Maryland Declaration of Rights.
(Emphasis added.)
20
The suppression court denied Faith’s motion to exclude the evidence recovered in
the search but questioned the admissibility of her statements made without a Miranda
warning. In response, the State argued that after Faith was placed under arrest by Deputy
Storee and Mirandized, “it’s a break” with subsequent incriminating statements made to “a
separate officer.” The court then took the Miranda issue under advisement and allowed
counsel to submit authority on the issue. At a later hearing, the suppression court ruled
that Faith’s statements before she received Miranda advisements were inadmissible but
declined to exclude subsequent statements.
After the drug evidence obtained from the roadside search and the admissible
statements were presented via an agreed statement of facts, the trial court, sitting as fact-
finder, convicted Faith of possessing cocaine with the intent to distribute. Ms. Faith was
sentenced to twenty years with all but eighteen months suspended, plus three years of
probation. This timely appeal followed.
DISCUSSION
Faith contends that “the trial court erred in denying [her] motion to suppress the
evidence recovered from [the] strip search conducted in the open on the side of Interstate
70 in the presence of two civilians and other officers in which her underwear was pulled
from her body and her vaginal area was exposed.” Applying lessons from Paulino v. State,
399 Md. 341 (2007), and other modality cases addressing sexually invasive searches, we
conclude that this roadside search was unreasonable, and therefore unconstitutional, in light
21
of the manner, location, and non-exigent circumstances in which it was conducted. Our
reasoning follows.
I. Fourth Amendment Standards Governing Sexually Invasive Searches
The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons . . . against unreasonable searches and seizures
shall not be violated[.]” U.S. Const. amend. IV. Applicable to the States through the
Fourteenth Amendment, this constitutional guarantee “prohibits searches that are
‘unreasonable under the circumstances.’” Paulino v. State, 399 Md. at 349 (citation
omitted). Under established Fourth Amendment jurisprudence, the State bears the burden
of rebutting the presumption that a warrantless search, such as the one at issue here, was
unreasonable. See id. at 348.
Evidence obtained as a result of an unconstitutional search may be challenged via a
motion to suppress. See Sizer v. State, 456 Md. 350, 364 (2017). Appellate review of a
suppression ruling requires that
we defer to that court’s findings of fact unless we determine
them to be clearly erroneous, and, in making that
determination, we view the evidence in a light most favorable
to the party who prevailed on that issue, in this case the State.
We review the [suppression] court’s conclusions of law,
however, and its application of the law to the facts, without
deference.
Taylor v. State, 448 Md. 242, 244 (2016) (citations omitted).
“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 . . .
22
[or] to search for and seize any evidence on the arrestee’s person in order to prevent its
concealment or destruction.’” Paulino, 399 Md. at 350 (quoting Chimel v. California, 395
U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969), overruled in part on other grounds in Arizona
v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009)). Because “searching without a warrant is
always considered a strictly limited right that grows only out of the inherent necessity of
the situation at the time of the arrest[,]” “[i]n the situation where the destruction or removal
of evidence is urged as justifying a warrantless search, it must be a situation where there
was an immediate, urgent, and compelling need for the police action.” Stackhouse v. State,
298 Md. 203, 215-16 (1983). “Where a warrantless search is based upon the destruction
or removal of evidence[,] the surrounding circumstances must present a specific threat to
known evidence.” Id. at 213. Moreover, “the burden of establishing exigent circumstances
is on the State, and . . . the facts and circumstances upon which the question of
reasonableness depends must be viewed in the light of established fourth amendment
principles.” Id. at 217.
Under this “exigency rationale,” police may search an arrestee’s outer garments,
including pockets. See Paulino, 399 Md. at 351; Stackhouse, 298 Md. at 211-12. But the
Fourth Amendment “protects an arrestee’s privacy interests in his person and prohibits
bodily intrusions that ‘are not justified in the circumstances, or which are made in an
improper manner.’” Paulino, 399 Md. at 351 (quoting Schmerber v. California, 384 U.S.
757, 768, 86 S. Ct. 1826, 1834 (1966)). When a search proceeds beyond “a routine
custodial search,” to a strip search, body cavity search, or other sexually invasive search,
23
“the necessity for such an invasive search must turn upon the exigency of the circumstances
and reasonableness[,]” because “[w]ithout the constitutional safeguards of exigent
circumstances and reasonableness, every search incident could result in a strip search.” Id.
at 351.
The Fourth Circuit recently reviewed the analytical framework used to evaluate
sexually invasive searches, as follows:
When . . . 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.” United States
v. Edwards, 666 F.3d 877, 882-83 (4th Cir. 2011) (citations
omitted). 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 (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] 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.
Sims v. Labowitz, 885 F.3d 254, 260-61 (4th Cir. 2018) (emphasis added; some citations
omitted).
24
In reviewing a sexually invasive search, appellate courts are charged with “taking
into account the relative strength of each factor and balancing the need to ferret out crime
against the invasion of personal rights[.]” Williams v. State, 231 Md. App. 156, 185 (2016),
cert. dismissed, 452 Md. 47 (2017). Accordingly, “Bell requires that a reviewing court,
when assessing the reasonableness of a search under the Fourth Amendment, balance ‘the
need for a particular search against the invasion of personal rights that the search entails.’”
Paulino, 399 Md. at 355 (quoting Bell, 441 U.S. at 559, 99 S. Ct. at 1084). Even when
police have sufficient grounds for a sexually invasive search,
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.
State v. Harding, 196 Md. App. 384, 397 (2010), cert. denied, 418 Md. 398 (2011).
II. Paulino v. State
Maryland appellate courts have addressed modality concerns regarding undue
invasion of privacy in a number of appeals challenging sexually invasive searches
conducted in both public and private locations. The Court of Appeals’s leading modality
decision in Paulino v. State, 399 Md. 341 (2007), addresses the constitutional limits of a
sexually invasive search conducted in public at the scene of an arrest.
After police learned from a confidential informant that Paulino would be in
possession of CDS at a certain place and time, and that Paulino “typically hides the CDS
25
in the area of his buttocks,” they arrested Paulino while he was a passenger in a vehicle at
a car wash. See id. at 344-45. The location was “back” off the road, through a parking lot,
“past an entrance to a storage facility” and “an auto repair center[,]” in a “secluded” area
“all by itself.” Id. at 345. Although it was 11:15 p.m., the area was “well-lit.” Id. at 346.
There were “[n]o civilian personnel” around other than the occupants of Paulino’s vehicle.
Id. at 346, 360 & n.7.
Paulino “was removed from the vehicle and laid on the ground.” Id. at 346. A
police officer then reached into his pants and removed a quantity of cocaine. See id. In
the course of that search, police lifted up the already exposed waistband of his shorts, then
“spread his cheeks apart a little bit” with a gloved hand, “to allow for a better view of his
anal cavity” because “the drugs were not visible until after the cheeks of Paulino’s buttocks
were spread apart.” Id. at 353-54.
The Court of Appeals 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.
Id. at 352 (emphasis added; citation omitted). After considering cases discussing different
search modes, the Court concluded that the search of Paulino was both a strip search and
a visual body cavity search. See id. at 352-53. In doing so, the Court observed that if “the
drugs were protruding from between the cheeks of Paulino’s buttocks and visible without
26
spreading his buttocks cheeks, the classification of this type of search would be a close
one.” Id. at 353-54.
Applying the four Bell factors, the Court held that the search was unreasonable “in
light of the manner and place in which [it] was conducted at a time when there were no
exigent circumstances justifying the immediate search.” Id. at 344. Writing for the
majority, Judge Greene explained that,
[b]y 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 we have 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.”
Id. at 351 (emphasis added; citation omitted).
The Paulino majority held that the scope of that search was “highly intrusive and
demeaning,” given the visual inspection and manipulation of Paulino’s anal area. See id.
at 356. The Court observed that
[t]he type of search that Paulino was subjected to, and other
searches that “entail[] the inspection of the anal and/or
genital areas have been accurately described as demeaning,
dehumanizing, undignified, humiliating, embarrassing,
repulsive, degrading, and extremely intrusive of one’s
personal privacy.”
Id. at 356 (quoting Amaechi v. West, 87 F. Supp. 2d 556, 565 (E. D. Va. 2000), aff’d, 237
F.3d 356 (4th Cir. 2001)) (emphasis added).
27
Although police had justification to initiate the search, id. at 357, “the crux of this
case . . . [was] not whether police had a right to search Paulino, but instead whether an
exigency existed such that an invasive search conducted at the scene of the arrest was
reasonable.” Id. at 357.
The Court found that both the manner and place of the search were unreasonably
public:
The testimony from the suppression hearing in the case sub
judice, viewed in the light most favorable to the State, does not
indicate that the officers made any attempt to protect Paulino’s
privacy interests. The search was conducted in the very place
in which he was arrested, a car wash. Similarly, there is no
indication in the record before us that the police made any
attempt to limit the public’s access to the car wash or took any
similar precaution that would limit the ability of the public or
any casual observer from viewing the search of Paulino.
Id. at 358. Because “there is no evidence that the search of Paulino was shielded from the
view of passers-by or the people present at the scene[,]” “the search as conducted was
unreasonable.” Id. at 358, 359-60.
In reaching that conclusion, the Court of Appeals considered cases from other
jurisdictions. See id. at 358-60. In McGee v. Texas, 105 S.W.3d 609, 612-13 (Tex. Crim.
App. 2003), the defendant was arrested without a warrant on suspicion of selling crack
cocaine, driven to a nearby fire station, and taken to a secluded location in that building,
where officers conducted a visual body inspection, revealing CDS “in plain view lodged
between McGee’s buttocks.” Id. at 613. The Texas Court of Criminal Appeals held the
visual search was reasonable under the circumstances, noting it was performed in a
28
hygienic and private location. See id. at 617. The Texas court agreed with Fourth Circuit
jurisprudence “that visual body cavity inspections should not be conducted in a public
place.” Id.
The Court of Appeals also contrasted Paulino’s search against another reasonable
search reviewed in United States v. Williams, 477 F.3d 974 (8th Cir. 2007). See Paulino,
399 Md. at 359. After obtaining a warrant to search Williams’s home and person for drugs,
but before executing that warrant, police conducted a traffic stop of Williams’s vehicle “on
a busy street.” Id. at 975. A pat-down search led police to suspect there was something
inside Williams’s pants. Id. Police “decided not to search Williams more extensively
while on the street because they were concerned about his privacy.” Id. Instead, they
transported him several blocks to a nearby precinct. Id. After removing him from the
police car, he was searched in a parking lot at the rear of that building, a fenced location
where the search was shielded from street view. Id. There, “[t]he officer, who was wearing
a latex glove, opened Williams’s pants, reached inside Williams’s underwear, and retrieved
a large amount of crack and powder cocaine near Williams’s genitals.” Id.
The Eighth Circuit rejected the suppression court’s “bright-line rule that ‘when a
detainee has been secured, and travel to a station house is possible, an on-street inspection
[is] an unconstitutional, unreasonable search.’” Id. at 977. The federal appellate court
concluded instead that this search was a reasonable “reach-in” that was not performed in
public view and not as intrusive “as a full-blown strip search.” Id. at 976-77. The Paulino
Court approved the federal court’s observation that because “‘a reach-in search of a clothed
29
suspect does not display a suspect’s genitals to onlookers, . . . it may be permissible if
police take steps commensurate with the circumstances to diminish the potential invasion
of the suspect’s privacy.’” See Paulino, 399 Md. at 359 n.6 (quoting Williams, 477 F.3d at
977).
Applying these lessons to the search of Paulino, the Court of Appeals concluded
that because that search “was highly intrusive and demeaning” and not “shielded from the
view of passers-by or the people present at the scene,” it “required a higher degree of
privacy than the search conducted in Williams.” Id. at 356, 359-60. The Court found the
State’s “failure to prove exigent circumstances and the reasonableness of the search . . .
determinative[,]” id. at 360, explaining that police had no reason to conduct that search in
public view:
There was no testimony at the suppression hearing in the
case sub judice, that Paulino was attempting to destroy
evidence, nor that he possessed a weapon such that an
exigency was created that would have required the police
officers to search Paulino at that precise moment and
under the circumstances, in a “well-lit” public car wash.
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. During the transportation of Paulino
from the scene of the arrest to the station or to a more private
location, the police had the ability to secure Paulino to prevent
30
his destruction or disposal of the contraband found on his
person. Instead, they chose to search him in a public place
in the view of others. Accordingly, we hold that the search of
Paulino unreasonably infringed on his personal privacy
interests when balanced against the legitimate needs of the
police to seize the contraband that Paulino carried on his
person.
Id. at 360-61 (emphasis added; footnote and internal citation omitted).
III. Maryland Modality Cases Since Paulino
Since Paulino, this Court has considered modality challenges to the constitutionality
of sexually invasive searches conducted in a variety of locations and circumstances that we
found reasonable under the Bell standards.
In Stokeling v. State, 189 Md. App. 653, 658-59 (2009), cert. denied, 414 Md. 332
(2010), a traffic stop ripened into a canine alert, a pat-down search at the scene, and a
transport of an occupant in the vehicle to the police station for a strip search. When an
officer found “‘a large bag of something in [the occupant’s] crotch area’” and marijuana
residue in the vehicle where he had been sitting, the officer had probable cause to arrest
him. Id. at 659, 670. Because the officer did not believe the bag was a weapon but did
suspect it was CDS, he “had probable cause to believe [the occupant] was in possession of
drugs on his body” and transported the arrestee to the police station to perform a strip
search. Id. at 669-70. After they arrived, before a search incident to arrest was performed,
the arrestee voluntarily removed a large baggie of marijuana. Id. at 659, 670-71.
This Court observed that “[i]f there is no possibility that an arrestee could reach into
the area that law enforcement officers seek to search,” there can be no justification to search
31
in order to prevent concealment or destruction of evidence. Id. at 671. Rejecting a claim
that it was unreasonable “to delay the search of the [arrestee’s] person incident to arrest
until he was taken the short distance to the police station[,]” we held that “the police were
justified in searching him incident to arrest. That authority included removing him from a
public place to a nearby police station to facilitate a strip search.” Id. at 673-74.
In Moore v. State, 195 Md. App. 695 (2010), cert. denied, 418 Md. 192 (2011), a
known drug trafficker was stopped and searched pursuant to a search warrant covering his
person and vehicle. After searches at the scene of the traffic stop yielded nothing, he was
taken to the precinct because officers “considered that location an appropriate private
location to carry out the search.” Id. at 716. In the presence of two male detectives, he
“was directed to take off his clothes, bend over, and spread the cheeks of his buttocks.” Id.
at 701. When “the detective ‘observed some plastic bag piece sticking out of his butt[,]’”
the detective removed two baggies containing cocaine and heroin. Id.
This Court held that the search was incident to the search warrant and that it was
reasonable under Fourth Amendment standards. Id. at 706-28. In doing so, we recognized
that “[i]t 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.” Id. at
718. Citing Paulino and McGee, we also acknowledged that
[s]trip searches, and body cavity searches in particular, are to
be conducted in places that are private and appropriately
hygienic. This will necessarily involve securing the search
area from public view and may often involve transporting
the person by vehicle to a more private and secure facility,
such as a police station.
32
Id. at 708 (emphasis added; footnote omitted). Regarding “the manner and place in which
[that] strip search was conducted,” this Court pointed out that it “was in a private room and
observed by only two male officers. The search was progressive, beginning with a search
of . . . outer garments, moving on to a strip search, and then to a visual body cavity search
when the drugs were not found in the previous search efforts.” Id. at 719.
In Allen v. State, 197 Md. App. 308, 312-13 (2011), two suspects who were observed
selling cocaine on a city street were searched incident to their arrests for drug distribution.
That search occurred next to “a series of storage garages” on a “a wide alley” with
“residential homes on the other side of the block.” Id. After each suspect’s outer clothing
and pockets were searched, detectives “pulled back” the waistband of each arrestee’s pants
and saw a plastic bag “protruding” from the buttocks. Id. at 312-13. After both arrestees
were required to “spread [their] legs and squat[,]” detectives recovered from each a bag of
narcotics. Id. Although additional police officers were present during these searches, there
were no other witnesses and only the searching detective could see inside each suspects’
pants. Id. at 313-14.
In characterizing this search mode as a “reach-in,” this Court acknowledged “the
conflicting definitions of the term ‘strip search,’” but concluded that
whether a “reach-in” search is classified as a strip search is not
dispositive. To be sure, a “reach-in” search may be less
invasive than a search requiring a suspect to remove his or her
clothing. To the extent it allows an officer to view a person’s
private areas, however, it still is intrusive and demeaning.
33
Id. at 322-23 (citing North Carolina v. Stone, 653 S.E.2d 414, 418 (2007) (search of
intimate area violates social expectations; “areas referred to as ‘private parts’ for obvious
reasons”)).
Applying the Bell factors, we found the scope, manner, and location of these
searches reasonable:
Although a “reach-in” search that exposes a
person’s private area is invasive, and therefore not
automatically permitted as a search incident to arrest, it is
less invasive than a full strip search. Here, the police officers
merely pulled the appellants’ pants and underwear away from
their waist, at which point the police observed a plastic bag
protruding from the appellants’ buttocks. Appellants’ clothing
was not removed, and the private areas of their bodies were not
publicly exposed. The officers took steps to protect appellants’
privacy. In each case, the officer involved testified, and the
court credited the testimony, that the officer stood directly
behind the suspect, and he was the only one who could see
appellants’ buttocks during the search. The scope and manner
of the searches were not unreasonable.
With respect to the location of the searches,
appellants note that they occurred on a public street.
Although that is true, the testimony was that the searches
were conducted out of public view. The officers testified
that the searches occurred in front of storage garages, not
homes, and there were “no civilians in the area.”
A “reach-in” search may be reasonable under the
Fourth Amendment, even if it occurs in a public place, if
the police take steps to protect the suspect’s privacy.
Id. at 324-25 (emphasis added; citations and footnote omitted).
We distinguished Paulino based on its “substantially different” facts:
With respect to the scope and manner of the search, the
majority of the [Paulino] Court rejected the position taken by
34
the dissent that this was a “reach-in” search, stating that “the
police did not only lift up Paulino’s shorts, but also the officer
manipulated his buttocks to allow for a better view of his anal
cavity.” Because the search in that case involved the
“manipulation of the intimate parts of a suspect’s person[,]” the
Court held that the search was both a strip search and a visual
body cavity search. It was the highly invasive nature of the
search in Paulino, as well as the lack of evidence that Paulino’s
privacy was protected in any way that led the Court [of
Appeals] to hold that exigent circumstances were required
before such a search in a public place was reasonable.
Id. at 326-27 (emphasis added). Because these searches were “not as highly invasive[,]”
and not conducted in a public location or in the presence of witnesses, we held they were
“reasonable under the Fourth Amendment.” Id. at 327.
In Turkes v. State, 199 Md. App. 96 (2011), this Court found a roadside reach-in
search to be reasonable in exigent circumstances. When Turkes’s vehicle was stopped at
11:45 a.m. for a suspected window tinting violation, he got out of the driver’s seat and
started walking away. Id. at 103-04. After being instructed to return to the vehicle, Turkes
looked nervously at a black bag that was in the door well. Id. at 104. The stopping officer
described the bag as the size of a tissue box, which raised his concern that it could contain
a weapon or drugs. Id. While the officer was writing up an equipment violation, Turkes
was moving around inside his vehicle in a manner the officer found “extremely
suspicious.” Id. at 104-05. The officer could not see Turkes’s hands. Id. at 105.
When the officer asked Turkes to get out of his vehicle, the bag was no longer in
the door well. Id. Although Turkes consented to a vehicle search, the officer did not find
the bag. Id. at 106. When asked where it was, Turkes claimed it was trash that was
35
underneath his seat. Id. But the bag was not there. Id. Turkes then denied knowing which
bag the officer was referring to. Id. Because the officer believed that the bag was on
Turkes’s person and likely contained a weapon or drugs, he conducted a pat down and felt
“a very hard object” in Turkes’s crotch area. Id.
When Turkes then ran, the officer tackled him, handcuffed him, and searched him.
Id. at 106-07. The officer unfastened the front of Turkes’s pants, lifted up his underwear,
saw a black bag, and removed it. Id. at 107. The bag contained “‘[f]our hundred . . .
glassine baggies, a razor blade, and 40 grams of crack cocaine, as well as the black bag that
was in the door well of the Cadillac.’” Id.
Neither the searching officer, nor anyone else saw Turkes’s private parts. Id. at 107-
08. Although “the search occurred in broad daylight in front of a public apartment complex
and several single-family houses that faced the road[,]” and “the officers made no attempt
to transport [Turkes] to the police station, which was 7-8 blocks away,” as a result of the
pat-down revealing a large hard object, “the exigency of the search outweighed any
intrusion on [Turkes’s] privacy.” Id. at 128. The officer “was reasonably concerned that
[Turkes] had not only drugs, but a weapon upon his person.” Id. In these circumstances,
we held that “the urgency of the search,” which “was much greater than that in Paulino
and Allen,” “outweighed” the intrusion on Turkes’s privacy. Id.
More specifically, Officer Smith was confronted with the fact
that the black bag, which was big enough to contain a weapon,
was missing; that appellant had lied to him twice by telling him
the bag was under the seat and then by telling him he did not
know anything about a black bag; and that [Turkes] resisted the
pat down and tried to flee when Officer Smith felt something
36
hard in appellant's crotch area. Because Officer Smith
reasonably suspected that [Turkes] was hiding a weapon,
an immediate and relatively intrusive search was
warranted. . . .
The fact that [Turkes’s] hands were cuffed behind his back
does not alter our analysis. The officers could reasonably have
feared that if they transported [Turkes] to the police station and
[he] was indeed hiding a weapon between his legs, [he] could
access the weapon while sitting in the back of the police
vehicle.
Id. at 129 (emphasis added).
This Court approved another reach-in search under comparably exigent
circumstances in Partlow v. State, 199 Md. App. 624 (2011). After receiving a tip that
Partlow was selling drugs from his car at a certain location and time, police stopped him
for a brake light violation. Id. at 644. A canine alert led to a search of Partlow. Id. at 630-
31. A police officer “felt a hard object ‘underneath Mr. Partlow’s buttocks, within his
clothes[,]” but was unable to remove it. Id. at 631. The officer pulled the waistband of
Partlow’s underwear away from his body and cut a cigarette-pack-sized piece out of the
garment, leaving his buttocks partially exposed. Id. at 631, 644 n.11.
We concluded this search “fell somewhere between a reach-in and a strip search.”
Id. at 643. It was conducted “away from the view of traffic” behind “the passenger side of
the police cruiser;” while the officer stood behind Partlow. Id. at 644. We noted that “the
officer made some effort to protect [Partlow’s] privacy[,]” and that Partlow “was wearing
a long coat or shirt that covered his underwear, so the exposure was ‘not as bad as it initially
sounds.’” Id. at 645.
37
Regarding the location of the search, we observed,
“[a]lthough the search was undertaken on a public
thoroughfare, the testimony showed that it was conducted
in an area that was “fairly wooded” on one side. The other
side of the street did contain houses, but most of the houses
were 30 to 40 yards away from the street, and the search did
not occur in front of a house. Moreover, it was “fairly dark”
at the time, and, as noted above, the suppression court found
that [Partlow’s] coat or shirt covered the area he alleged was
exposed. Only police officers were present during the search;
no civilians were in the area, and no cars stopped on the side
of the road.
Id. (emphasis added).
In that setting, the officer was concerned that Partlow could dispose of any
contraband:
When asked by defense counsel if he could have taken
appellant somewhere private to conduct the search, Schultz
stated, “Not at that point” because the officers “wanted to
preserve the evidence, make sure it was not discarded in
some way.” Although the suppression court agreed that it may
“have been a nicer idea to do it in the confines of a room in a
police station,” it credited the officer’s testimony that he took
some precautions to ensure appellant’s privacy and found that
the small amount of exposed skin on his buttocks did not render
the search unreasonable.
Id. (emphasis added).
Contrasting these circumstances with Paulino, this Court held that the search was
reasonable:
In the present case, the search was not as invasive as the
one in Paulino. The search was brief, appellant was not
disrobed, his private parts were not manipulated, and there
were no non-police citizens around to view the cutting away of
a small portion of appellant’s underwear that was covered by a
38
long shirt or coat. After balancing the four Bell factors, we
hold the search was reasonable under the Fourth Amendment.
Id. at 646.
More recently, in Williams v. State, 231 Md. App. 156, 185 (2016), cert. denied,
452 Md. 47 (2017), we found a visual body cavity search conducted at a police barracks to
be reasonable. In that case, a police sergeant received a tip from a confidential informant
that Williams would be leaving a Narcotics Anonymous meeting and then making drug
“drops” or sales in the Easton area. Id. at 167. The sergeant’s ensuing investigation
revealed that Williams’s driver’s license was suspended and revoked. Id. The sergeant
went to the area identified by the informant, where he saw Williams driving. Id. Stopping
Williams’s vehicle in a parking lot, the sergeant arrested him for license violations. Id.
In a search incident to arrest, the sergeant found $1,356 in cash on Williams’ person,
but nothing more of note. Id. Although Williams was cooperative during the search, he
was nervous and “his chest was rapidly ‘moving up and down,’ the muscles in his neck
‘were visibly contracting,’ and he was sweating, even though the temperature was a mild
75 degrees.” Id. Believing “‘criminal activity was afoot’ based on his prior contact with
[Williams], the information from [the confidential informant], the large sum of cash, and
[Williams’] nervousness[,]” the sergeant transported Williams to the Easton State Police
Barracks. Id. at 167-68.
In a secure area, away from public view, Williams was required, in the presence of
two or three officers, to remove his clothing, “turn around, bend over, and spread his
buttocks apart.” Id. at 168. Although Williams refused the latter instruction, the sergeant
39
saw a plastic baggie protruding from Williams’ rectum. Id. Because the sergeant was
unable to retrieve the baggie when Williams “clenched his muscles[,]” he obtained a search
warrant. Id. Medical personnel retrieved a baggie containing heroin and another
containing crack cocaine. Id.
This Court concluded that before the body cavity search, the officer “saw what he
believed to be a foreign substance.” Id. at 178. “[A]lthough there were four officers
present, the search took place in a secure area of a police barrack, not a public area.” Id. In
these circumstances, the manner and place of the search were reasonable:
Weighing the Bell v. Wolfish, supra, factors, three of the
factors weigh in favor of the State—the manner in which the
search was conducted, where the search was conducted, and
that the search was justified—and only one factor—the
intrusiveness of the search—weighs in favor of [Williams].
Taking into account the relative strength of each factor and
balancing the need to ferret out crime against the invasion of
personal rights, we are persuaded that the strip search here was
reasonable and legal.
Id. at 185.
IV. The Suppression Court’s Ruling
Here, the suppression court concluded that the roadside search of Faith was
reasonable, ruling as follows:
[T]he Court is here considering a fourth amendment argument
from defense that narcotics that were found on the defendant’s
person were found in violation of the fourth amendment. The
Court recognizes in this instance the narcotics were found on
the defendant’s person, and the heavy scrutiny the Court
puts on the search of somebody’s person is certainly
present in this case, because that’s probably the area a
40
person has the most expectation of privacy that the Court
can possibly consider is their private parts of their body.
In this instance, the defense argues that it was
unreasonable for the search to take place that took place on
the roadway. The testimony is that the deputy pulled the
vehicle over for a proper reason. It was following too closely.
He noticed track marks on the defendant’s arm and some other
indications in her eyes and demeanor, I guess, is the testimony,
that there may be personal drug use. The track marks, he didn’t
say whether they appeared to be fresh or not, but he did notice
them.
For those reasons, he called the canine officer to come
in to search or at least sniff the outside of the vehicle which is
proper. It was done within a reasonable period of time, which
the law requires. He also called in a female sergeant who,
according to the testimony, happened to be out on the road as
well and was actually in the median when the vehicle passed.
The dog did hit on the car. The car was searched.
Certain items of contraband were found in the car, including a
spoon and some items of drugs were found in the car itself. At
that point, the female officer sergeant begins to search the
person of the defendant in this case. And the question the
Court has to decide then is that search reasonable, because
it did involve the search of her body parts, her personal
body parts.
So before the Court can decide whether a search is
reasonable, it does have to factor the four factors that Bell
requires under the Supreme Court case Bell v. Wolfish, 440
U.S. 520, which basically outlines the four factors of whether
the Court determines something is reasonable or not. The
scope -- and the Court did consider all of those things. In this
case, the scope of the search was considered. The two cases
that I think are most likely to follow along in this case are
Paulino v. State, which the defense submitted, which is a Court
of Appeals case from 2006 [sic]. The Court also considered
the State’s case that they submitted, which is Partlow v. State,
which is a Court of Special Appeals case from 2009 [sic]. The
Court considered both of those cases as well.
41
In this case, the female officer that was going to
conduct the search was cognizant of the defendant’s
privacy in this case. She certainly took that into
consideration according to her testimony and tried to limit
this as unobtrusively towards her as she could. She brought
her around at least one or two vehicles away from the other
occupants of the vehicle. She had her face away from the
highway. According to the uncontroverted testimony, at no
time did she place her hands on the defendant other than to
gently look at the track marks of her arm. But not in
conducting the search.
She asked the defendant to pull her underwear and pants
– after she unbuttoned them – away from her body, and at that
time, she saw what she believed to be a condom protruding
from the front of the defendant’s vagina. So that was the scope,
basically. She was not asked to remove any items of clothing.
She was simply asked to pull her clothing away from her
body, and it was done outside – even though it was done
outside, it was done away from anybody else and turned
away from the highway. So she was certainly taking into
consideration the defendant’s privacy.
The justification for initiating the search the Court
considered and the track marks on her arms – it’s unclear when
the items were found actually in the car, but there were
narcotics found in the car, and the statements that the defendant
made were all used as justification for initiating the search and
the Court does find that to have been reasonable under the
circumstances as well.
The Court considered the place of the search. It was
out on the highway, and certainly that takes more scrutiny
from the Court, because it’s not a private area. However,
the Court is convinced from the testimony of the sergeant
that she had done everything she could to make this as
private as possible. There were no body parts exposed in
any way other than the deputy herself could see. And it
was again, just the top of the genital area. There was not
what this Court would determine as the defense argues, to be a
body cavity search, which would involve seeing the
defendant’s genitalia from a different angle – it could have
42
been considered a body search. But the way this angle was
considered from above, the Court does not consider that to be
a body cavity search.
The manner of the search again was done on the side
of the highway, but it was done in such a manner to take
into consideration the defendant’s privacy as much as was
possible under the circumstances of the case.
So the Court does find the search in this case was
reasonable under all of the circumstances, the totality of the
circumstances, and considering the factors in Bell, and
therefore the motion to suppress that evidence is denied.
As far as the statement goes, . . . . the defendant was in
a custodial situation when the sergeant asked her certain
questions . . . in reference to what might be on her person at
that time.
Those were done prior to the deputy making the
Miranda warnings, and since she was in custody, I would
suppress those statements. . . .
Come on. Because you’re basically saying, come on,
admit this. So while that’s not a posed question, the cases are
pretty clear that any statement that could be foreseen to
potentially elicit a statement is considered a question[.]
(Emphasis added.)
V. Bell Analysis
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 (2011). Applying the analytical framework established by Bell,
we 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
43
personal rights that the search entailed. See Paulino v. State, 399 Md. 341, 355 (2007);
Williams v. State, 231 Md. App. 156, 185 (2016); Allen, 197 Md. App. at 323.
A. Scope of the Search
In response to questioning by the suppression judge, Sergeant Ensor testified that
she viewed Faith’s genitalia. Specifically, the sergeant 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.
As the Court of Appeals has acknowledged, “the term ‘strip search’ has been
defined and used in differing contexts in Fourth Amendment jurisprudence.” State v.
Nieves, 383 Md. 573, 586 (2004). Although “[i]n general, strip searches involve the
removal of the arrestee’s clothing for inspection of the underclothes and/or body[,]”
“[s]ome have defined strip searches to also include a visual inspection of the genital and
anal regions of the body” or “any search of an individual requiring the removal or
rearrangement of some or all clothing to permit the visual inspection of the skin surfaces
or the genital area, breast, and/or buttocks.” Nieves, 383 Md. at 586. See also Allen, 197
Md. App. at 321-23 (reviewing range of definitions and classification for the terms “strip
search” and “reach-in search”). In Paulino, 399 Md. at 352, the Court described a strip
search as “‘an umbrella term’” referring to an “inspection of a naked individual without
any scrutiny of the subject’s body cavities[,]” then stated that “‘[a] ‘visual body cavity
search’ extends to a visual inspection of the anal and genital areas.”
44
Whether the search of Faith qualifies as a visual body cavity search based on
Sergeant Ensor’s external inspection of Faith’s vagina, it was undisputedly a visual body
search because the sergeant 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.’” See Sims, 88 F.3d at 261 (citation omitted).
Rather than using the term “strip search” as our umbrella for all intrusive search
modes, including those that do not involve the removal of clothing or the internal inspection
of body cavities, we shall use the term sexually invasive search. 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 – we will 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. Cf. Turkes, 199 Md. App. at 128 (reach-in search accomplished without looking).
Look-in and reach-in searches typically are less invasive than strip searches
requiring removal of clothing and body cavity searches involving inspection of internal
genital and anal cavities. See Allen, 197 Md. App. at 324-25. Cf. Sims, 885 F.3d at 261
(“magnitude of the intrusion is greater” when “the scope of a search exceeds a visual
45
inspection”). But such searches cannot be treated as reasonable per se because any sexually
invasive search that allows a government agent to view a person’s private areas is “still
intrusive and demeaning.” Allen, 197 Md. App. 322-23. This reflects that “[w]e accept as
axiomatic the principle that people harbor a reasonable expectation of privacy in their
‘private parts’” and the corollary “belief that people have a reasonable expectation not to
be unclothed involuntarily, to be observed unclothed or to have their ‘private’ parts
observed or touched by others.” Nieves v. State, 160 Md. App. 647, 661 (quoting Justice
v. Peachtree City, 961 F.2d 188, 191 (11th Cir. 1992) and Doe v. Calumet City, Ill, 754 F.
Supp. 1211 (M.D. Ill. 1990)), aff’d, 383 Md. 573 (2004).
Indeed, the Supreme Court has recognized that any reasonable person would be
distressed by an involuntary inspection of her genital area, regardless of whether that view
was restricted to the searching official. In finding a sexually invasive search of a student
unreasonable under Fourth Amendment standards, the Court observed:
The exact label for this final step in the intrusion is not
important, though strip search is a fair way to speak of it.
Romero and Schwallier directed Savana to remove her clothes
down to her underwear, and then “pull out” her bra and the
elastic band on her underpants. Although Romero and
Schwallier stated that they did not see anything when
Savana followed their instructions, we would not define
strip search and its Fourth Amendment consequences in a
way that would guarantee litigation about who was looking
and how much was seen. The very fact of Savana’s pulling
her underwear away from her body in the presence of the
two officials who were able to see her necessarily exposed
her breasts and pelvic area to some degree, and both
subjective and reasonable societal expectations of personal
privacy support the treatment of such a search as
categorically distinct, requiring distinct elements of
46
justification on the part of school authorities for going beyond
a search of outer clothing and belongings.
Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374, 129 S. Ct. 2633, 2641
(2009) (emphasis added). Cf. Porter v. Indiana, 82 N.E.3d 898, 904 (Ind. Ct. App. 2017)
(“It would be hard to contest an assertion that one’s pubic area is a private area of the body
that merits special protections.”); North Carolina v. Battle, 688 S.E.2d 805, 814 (N.C. Ct.
App. 2010) (“Whether anyone other than Detective Curl actually saw Defendant’s private
parts during the search is irrelevant to the Fourth Amendment analysis”).
Consequently, whether anyone other than Sergeant Ensor actually saw Faith’s
vaginal area during the search is not a determinative factor in our Bell analysis. Although
we find the scope of Faith’s search reasonable for Fourth Amendment purposes, we remain
mindful that “[t]o the extent it allow[ed] an officer to view [her] private areas, . . . it is still
intrusive and demeaning.” Allen, 197 Md. App. at 322-23.
B. Justification for Initiating the Search
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. See Partlow, 199 Md. App.
at 644. Police may search the person of the arrestee to remove any weapons or recover
evidence that could be concealed or destroyed. See Belote v. State, 411 Md. 104, 113
(2009).
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. See
Nieves, 383 Md. at 596; Allen, 197 Md. App. at 323. In the case of an arrest for drug
47
distribution, “the nature of the offense provides reasonable suspicion to believe that the
arrestee is concealing drugs on his or her person.” Allen, 197 Md. App. at 324. This
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.’” Id. at 324 (quoting Moore, 195 Md. App. at 718).
Faith does not contest that police had grounds to conduct a pat-down search when
she exited her vehicle and to search her vehicle following the canine alert. Nor does she
dispute that the canine alert and subsequent discovery of drug paraphernalia and cocaine
in her car justified both her arrest and a search of her person for CDS. 4 Although Faith
does not renew the challenge she raised at the suppression hearing as to whether the State
had sufficient justification for initiating a sexually invasive search based on a mere “hunch”
4
As the suppression court acknowledged, the record is equivocal as to whether the
cocaine and paraphernalia in Faith’s car were discovered before Sergeant Ensor began to
search Faith. Although Deputy Storee did not specify at what point he called the sergeant
in to conduct a “female search,” and could not recall when Sergeant Ensor arrived, she
testified that Storee was in the process of conducting the vehicle search when she arrived
and that she questioned Faith in an effort to “build” reasonable suspicion for her search.
The suppression court determined that “[t]he justification for initiating the search
was “the track marks on [Faith’s] arms” and “the statements that the defendant made[.]”
Yet the court later excluded those statements on the ground that they were the result of
unconstitutional custodial questioning that occurred before Faith was given Miranda
advisements.
Although Faith does not argue that the court’s justification analysis was tainted by
its consideration of Faith’s excluded statements, our task is to make an independent
constitutional appraisal based solely on the suppression record. See Taylor v. State, 448
Md. 242, 244 (2016). Because Faith’s pre-search statements to Sergeant Ensor were
excluded, we do not consider them for purposes of our Bell analysis.
48
she had concealed CDS, she insists that the lack of exigent circumstances for conducting
such an invasive search in a highly public manner and location made it unreasonable. We
examine those related factors next. See Williams, 231 Md. App. at 178 (considering
together these “closely related” factors).
C. Manner and Location of the Search
The suppression court recognized that heightened constitutional scrutiny is required
because “the place of the search . . . . was out on the highway[,]” which is “not a private
area.” Nevertheless, the court found “from the testimony of the sergeant that she had done
everything she could to make this as private as possible[,]” so that Faith’s search “was done
in such a manner to take into consideration the defendant’s privacy as much as was possible
under the circumstances[.]” In support, the court cited the fact that “no body parts [were]
exposed in any way other than the deputy [sic] herself could see” and “it was . . . just the
top of the genital area.”
Faith argues that in holding that this highly public search was reasonable, the
suppression court “misapplied” the Bell factors and “ignored specific facts which brought
this case within the scope of Paulino[,]” including that the search “took place in front of
civilians[,]” “that there were no exigent circumstances[,]” and that “Ensor at no time
testified that it would be unfeasible or that it would risk destruction or loss of evidence
should Faith’s search be delayed until they reached a police station.” In Faith’s view, the
suppression court “over focused on Ensor’s ‘cognizance’ of Ms. Faith’s privacy and
ignored that Ensor still viewed the top of Ms. Faith’s genital area while her companion and
49
son stood by, along an interstate highway where passing motorists could also see that
search taking place, and the sergeant did so without exigent circumstances.” Nor did Ensor
“explain why the strip search was not done at the police station or at least in a car or cruiser
at the scene.” Here, “[a]s in Paulino,” Faith contends, the State failed to “demonstrate that
there was any exigent circumstances to justify such a public intimate strip search” because
“there was no testimony . . . that Ms. Faith was attempting to destroy any evidence or that
she possessed a weapon that would have placed Ensor or other officers in danger.” Indeed,
Faith points out, the suppression court “did not even take into account that there were no
exigent circumstances” to justify a sexually invasive search at the scene of this traffic stop.
The State responds that Faith waived her challenge to the lack of exigency because
she “did not argue below, as she now appears to argue on appeal, that the Bell analysis is
accompanied by a free-standing exigency test.” Moreover, the State continues, “[a]ny
exigency beyond the inherent exigency attributable to the ‘easily disposable nature of the
drugs,’ is less significant in cases like Allen, Partlow, and this one, where the searches were
‘not as intrusive as the one in Paulino.’” In support, the State points to this Court’s
statement in Allen that “[i]t was the highly invasive nature of the search in Paulino, as well
as the lack of evidence that Paulino’s privacy was protected in any way, that led the Court
to hold that exigent circumstances were required before such a search in a public place was
reasonable.” Allen, 197 Md. App. at 326-27.
We are satisfied that Faith preserved her right to challenge the suppression ruling
on the ground that the motion court failed to address the lack of exigency for this search.
50
As the suppression record detailed above shows, both the prosecutor and defense counsel
questioned Sergeant Ensor about why Faith was not taken to the Law Enforcement Center
to be searched. Based on Ensor’s testimony, defense counsel and the prosecutor argued
over whether, under Paulino and Partlow, this search specifically, as well as the Frederick
County Sheriff’s Department’s routine practice of conducting sexually invasive roadside
searches generally, violates the Fourth Amendment. This was sufficient to preserve Faith’s
appellate arguments.
On the merits, we are not persuaded that, by itself, shielding others from viewing
an arrestee’s private parts while a sexually invasive search is taking place in public view
at a public location amounts to “taking into consideration . . . privacy as much as was
possible[.]” As courts consistently recognize, having a government agent visually inspect
one’s genital area is traumatic – “‘accurately described as demeaning, dehumanizing,
undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of
one’s personal privacy.’” Paulino, 399 Md. at 356 (citation omitted); see Allen, 197 Md.
App. at 322-23. Moreover, that privacy invasion extends beyond distress in submitting to
a law enforcement officer’s examination of one’s private parts, to the indignity of having
others witness that such a search is taking place. See, e.g., Paulino, 399 Md. at 360 (holding
that presence of “members of the public,” including arrestee’s companions, made “the
search unnecessarily within the public view and therefore violative of the Fourth
Amendment”); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981) (“‘[N]o police officer
in this day and time could reasonably believe that conducting a strip search in an area
51
exposed to the general view of persons known to be in the vicinity whether or not any
actually viewed the search is a constitutionally valid governmental ‘invasion of (the)
personal rights that (such a) search entails.’”) (citation omitted)).
Consequently, “[t]he question whether a sexually invasive search is conducted in a
private or a public setting is ‘especially relevant’ to [a] determination of reasonableness.”
Polk v. Montgomery County, 782 F.2d 1196, 1201-02 (4th Cir. 1986). Although every
sexually invasive search “need not be conducted in a private holding cell to adequately
safeguard a suspect’s privacy interests, we consider whether a sexually invasive search
could have been viewed by others, and whether it was in fact viewed by others, in our
analysis of the reasonableness of the search.” Logan, 660 F.2d at 1014.
Here, the suppression record establishes that Faith’s search was both actually and
potentially witnessed by onlookers. We acknowledge that Sergeant Ensor’s efforts to
shield Faith, so as to avoid exposing her private parts to onlookers, demonstrates
cognizance of Faith’s privacy rights. Although we agree with the suppression court that
this was a reasonable and necessary measure, nevertheless, we are mindful that Faith’s
companion and child, as well as passing motorists, could observe that the search was
occurring. She was wearing very brief shorts and a sleeveless shirt, which made it difficult
for her to conceal contraband in her clothing but easy for onlookers to see that her private
parts were being inspected by Sergeant Ensor. And Faith was aware of those onlookers.
Even if we credit Sergeant Ensor’s testimony that Faith was not facing directly into
oncoming traffic during the search, rather than both deputies’ testimony that she was, Faith
52
was required to unzip and open the front of her shorts, then hold out her underwear for
Sergeant Ensor to look in, while moderate to heavy traffic drove past and her companion
and son waited within view.
As in Paulino, “their presence, whether their view was obscured or otherwise, . . .
makes the search . . . unnecessarily within the public view[.]” Paulino, 399 Md. at 360.
We agree with Faith that under Paulino and its progeny, the State bears the burden of
establishing a “legitimate” law enforcement need to conduct a sexually invasive search in
public view at the scene of a traffic stop, rather than in a more private manner and location.
In Paulino, the Court expressly required proof of such exigent circumstances, in
reasoning that bears repeating here:
[T]he State contends that because the search did not occur
on the side of a well-traveled highway and was conducted
at night; the search, therefore, was reasonable. The State
appears to overlook that its failure to prove exigent
circumstances and the reasonableness of the search are
determinative. As we have noted previously, “the burden is
on those seeking the exemption [from the warrant requirement]
to show the need [for the search].” There was no testimony
at the suppression hearing . . . that Paulino was attempting
to destroy evidence, nor that he possessed a weapon such
that an exigency was created that would have required the
police officers to search Paulino at that precise moment and
under the circumstances, in a “well-lit” public car wash.
There is no dispute that members of the public were
present. Specifically, the other passengers . . . 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.
During the transportation of Paulino from the scene of the
53
arrest to the station or to a more private location, the police had
the ability to secure Paulino to prevent his destruction or
disposal of the contraband found on his person. Instead, they
chose to search him in a public place in the view of others.
Accordingly, we hold that the search of Paulino
unreasonably infringed on his personal privacy interests
when balanced against the legitimate needs of the police to
seize the contraband that Paulino carried on his person.
Paulino, 399 Md. at 319-20 (emphasis added; citation and footnote omitted).
This case presents “in real life” the same scenario that the State proffered in Paulino
as a hypothetical example of an unconstitutionally public search, i.e., a sexually invasive
search “on the side of a well-traveled highway,” in daylight with no exigent circumstances
explaining why the search occurred in public view at the scene of the arrest. Far more than
the secluded car wash in Paulino or the unoccupied city streets in Allen and Partlow, an
interstate highway is a quintessentially public location.
The brevity of such a sexually invasive search cannot render it reasonable “where
there was no exigency.” Partlow, 199 Md. App. at 356. The lesson from Paulino is that
the State must establish some constitutionally relevant and non-pretextual justification for
immediately conducting a sexually invasive roadside search. As the Paulino Court
explained, 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. See id. at 360-
61.
We are 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
54
search or body cavity search. This ignores the “intrusive and demeaning” nature of
submitting to an involuntary visual inspection of genitals by a government agent. See
Allen, 197 Md. App. at 622-23. Cf. Redding, 557 U.S. at 374, 129 S. Ct. at 2641 (“The
very fact of . . . pulling her underwear away from her body in the presence of the two
officials who were able to see her necessarily exposed her breasts and pelvic area to some
degree, and both subjective and reasonable societal expectations of personal privacy
support the treatment of such a search as categorically distinct . . . .”); Paulino, 399 Md. at
356 (“[S]earches that entail the inspection of the . . . genital areas” are “extremely intrusive
of one’s personal privacy.”) (quotation and citation omitted).
This Court’s decisions in Allen, Partlow and other modality cases do not relieve the
State of its burden to prove that the public manner and location of this sexually invasive
search were reasonable. In contrast to this case, the suppression records in those cases
established materially different privacy and exigency grounds justifying those searches.
In Allen, 197 Md. App. at 312-13, 324-26, it was reasonable to conduct reach-in
searches of two men arrested on a Baltimore street just after police officers observed them
selling cocaine. Both searches were conducted out of public view, at night, near closed
storage garages, next to parked cars, while “there were no civilians in the area.” See id. at
314.
In Turkes, 199 Md. App. at 104-07, 128-29, a roadside reach-in search during a
traffic stop was reasonable given an exigency that outweighed the lack of private manner
and location. After the driver fled and repeatedly lied about a suspicious black bag that
55
went missing during the stop, and a pat-down revealed an object the officer believed might
be a weapon, “an immediate and relatively intrusive search was warranted.” Id. at 129.
In Partlow, 199 Md. App. at 627, 644-45, a reach-in search after a canine alert “was
not as invasive as the one in Paulino” because, although it occurred “on a public
thoroughfare,” it “was fairly dark” and in front of the wooded portion of a residential area,
where “there were no non-police citizens around to view the cutting away of a small portion
of . . . underwear that was covered by a long shirt or coat.” Id. at 646. According to the
arresting officer, moreover, seizing the suspected contraband revealed by the pat-down
search in this manner was necessary to “‘make sure it was not discarded in some way.’”
Id. at 645.
This suppression record does not establish comparable grounds for conducting a
visual body search in the manner and location that exposed Faith to public view. She made
no attempt to flee. Police did not find anything during the pat-down of Faith’s outer
garments that might indicate the possible presence of a weapon. Unlike Allen, Partlow,
and other searches conducted out of public view because of location or lighting conditions,
this search was conducted in daylight, on the shoulder of an interstate highway, between
two police cruisers with their emergency lights flashing, as Faith’s companion and child
stood a car-length away, while moderate to heavy traffic drove past. Although Faith was
positioned so that no one except Sergeant Ensor could view her genital area, the search
took place in full public view as Faith opened her shorts and held out her underwear.
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In contrast to Turkes and other cases in which exigencies had a mitigating effect,
the State established no comparable reason for searching Faith along Interstate 70 instead
of a more private location. Indeed, Sergeant Ensor did not identify any. When asked why
she did not transport Faith to a more private location, the sergeant expressed no concerns
about her personal safety or that Faith would flee or dispose of contraband. Cf. Porter, 82
N.E.2d at 907 (“When Officer Wren . . . insert[ed] her hand into Porter’s pants, with no
voiced concerns about officer safety or destruction of evidence, the search became
unreasonable.”).
Instead, Ensor answered generally, explaining that she sometimes performs
roadside searches for medical reasons, when CDS is secreted in body cavities. Yet neither
Ensor nor the other officers claimed that they believed Faith was in medical distress. The
other generalized reason cited by Sergeant Ensor was her belief that a visual body
inspection is a lesser privacy intrusion that would avoid a “full-blown strip search” at the
police station.
Yet 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, Sergeant Ensor instead announced that she was going to search Faith,
including her vagina, without giving Faith any option to be searched at the Law
Enforcement Center or a less public location.5 Nor did Ensor explain why this search could
5
It was not until after the search revealed the condom protruding from Faith’s
vagina that Sergeant Ensor offered Faith the choice to remove it at the scene or at the Law
Enforcement Center.
57
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 she did not conduct this search in one of
the four vehicles at the scene of this traffic stop. Cf. Harding, 196 Md. App. at 396 (“[T]he
situs of the . . . search was moved” from a public road where the traffic stop occurred “to
the precinct station in order to insure maximum privacy . . . .”); Williams, 231 Md. App. at
178 (explaining that place and manner of visual body cavity search following arrest for
driving on revoked license was reasonable because it “took place in a secure area of a police
barrack, not a public area”); Stokeling, 189 Md. App. at 673-74 (concluding that search
was justified when police reasonably delayed sexually invasive search until arrestee was
transported to police station). See also Williams, 477 F.3d at 975 (holding that search was
not unreasonable when, among other factors, police “decided not to search” at scene of
“traffic stop on a busy street” and took arrestee to precinct “because they were concerned
about his privacy”); McGee, 105 S.W.3d at 617 (considering the location of a search when
evaluating its reasonableness and observing that, after transporting arrestees to nearby fire
station, police conducted separate visual inspections of arrestees’ buttocks in private room).
Moreover, Sergeant Ensor did not explain why she assumed that a full-blown strip search
at the police station would be necessary, even though, according to her own expertise and
experience, a look-in search would be effective in discovering concealed CDS. Cf. Moore,
195 Md. App. at 719 (approving a progressively invasive search at police station,
“beginning with a search of . . . outer garments, moving on to a strip search, and then to a
visual body cavity search when the drugs were not found in the previous search efforts”).
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We discern 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. To the
contrary, according to Sergeant Ensor, it was one of “thousands” of similar “female
searches” (some of which involve skin-to-skin contact) she has performed over fifteen
years. Here, as in most other instances she described, the search occurred after the sergeant
was called to the scene of a stop that generated suspicions of drug activity. 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.
“Without the constitutional safeguards of exigent circumstances and
reasonableness, every search incident could result in a [sexually invasive] search.”
Paulino, 399 Md. at 351. As in Paulino, we are concerned that without any showing by
the State that police had a legitimate need to conduct this type of sexually invasive search
on the side of a public roadway, every search incident to a traffic stop arrest involving
suspected CDS could trigger a visual body search, even in the most public of
circumstances.
Indeed, as this record reveals, the Frederick County Sheriff’s Department has
already established a systematic practice of conducting such roadside searches, rather than
taking the privacy steps suggested by Paulino, Moore, Williams, and other cases, such as
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conducting searches inside a vehicle or at a police station. See id. at 360-61. What the
collective testimony of Sergeant Ensor, Deputy Storee, and Deputy Yackovich, as well as
the arguments made by the State, make clear is that the Frederick County Sheriff’s
Department is 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.
This premise cannot be reconciled with the Fourth Amendment principles
articulated in Paulino, that searches involving “the inspection of the . . . genital areas” are
“extremely intrusive of one’s personal privacy” and should not be conducted in public view
absent exigent circumstances. See id. at 356. It also ignores that “Bell requires a flexible
approach . . . that takes into account the relative strength of each factor” and balances “the
need for a particular search against the invasion of personal rights that the search entails.”
Id. at 355. Accord Williams, 231 Md. App. at 185 (when determining the reasonableness
of the strip search, the Court takes “into account the relative strength of each factor and
balance[es] the need to ferret out crime against the invasion of personal rights”). Cf.
Massachusetts v. Morales, 968 N.E.2d 403, 411 (Mass. 2012) (“With no exigency existing,
the defendant should have been transported to a private space or location.”); Battle, 688
S.E.2d at 824 (rejecting “a per se rule that roadside searches of suspects are allowed . . . so
long as some measures are taken to shield the suspects’ private parts from public view.”).
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In these circumstances, Sergeant Ensor did not do everything she reasonably could
to protect Faith’s privacy. Instead, we conclude that the unreasonably public manner and
location of this search weighs heavily against the State in our Bell calculus.
D. Bell Balancing
We agree with Faith that the suppression court “did not properly apply the four Bell
factors and did not properly apply Paulino to the facts in this case.” Although this look-in
search did not involve the physical contact that occurred in Paulino, it required the
rearrangement of clothing to allow “inspection of the anal and/or genital areas[,]” a search
the Court of Appeals has characterized as “extremely intrusive of one’s personal privacy.”
Paulino, 399 Md. at 356 (citation and quotation marks omitted). And it occurred in view
of not only the other occupants of her vehicle, but also motorists.
As in Paulino, the suppression court did not hold the State to its burden of
establishing sufficient grounds for conducting a warrantless sexually invasive search in
public view at a public location. There was no testimony that Faith was attempting to
destroy evidence or that police suspected that she possessed a weapon “such that an
exigency was created that would have required the police officers to search [her] at that
precise moment and under the[se] circumstances[.]” See id. at 359. We are not persuaded
that this search was reasonably necessary “to prevent . . . destruction or disposal of
contraband” concealed on her person based on what the State views as “the inherent
exigency attributable to the ‘easily disposable nature of the drugs,’” because “[d]uring the
transportation of [Faith] from the scene of the arrest to the station or to a more private
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location, the police had the ability to secure” her. See id. at 360-61. The three police
officers at the scene “could have taken any number of steps, including . . . conducting the
search inside” Faith’s vehicle, one of the three police cars on the scene, “or at the police
station, to protect [Faith’s] privacy interest.” See id. at 359. “Instead, they chose to search
[her] in a public place in the view of others.” See id.
“The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application.” Bell, 441 U.S. at 559, 99 S. Ct. at 1884. Although
the scope of Faith’s search was reasonable, she does not directly challenge the justification
for initiating it, and Sergeant Ensor prevented others from viewing Faith’s private parts,
this roadside search was conducted in a manner and location that unreasonably exposed
Faith to public view.
As in Paulino, “on balance, the location of the search and the lack of exigency made
the search . . . unreasonable.” Paulino, 399 Md. at 355. In holding a comparable search
unconstitutional, one of our sister courts observed that “this was a routine encounter with
no justification for an invasive roadside search.” Porter, 82 N.E.2d at 906. Although a
visual body search might be reasonable under the Fourth Amendment when it occurs during
such 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, see Allen,
197 Md. App. at 324-25, that did not happen here. 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. Here, the
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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. Indeed, Faith’s companion and three-year-old child were present as the search
occurred. Under these circumstances, we hold that the search violated Faith’s Fourth
Amendment right to be free from unreasonable searches.
For these reasons, we hold that that the search of Faith “unreasonably infringed on
[her] personal privacy interests when balanced against the legitimate needs of the police to
seize the contraband that [she] carried on her person.” See Paulino, 399 Md. at 361.
Because the State failed to establish that the warrantless roadside search was reasonable,
the suppression court erred in denying Faith’s motion to exclude the drug evidence
obtained as a result of that unconstitutional search. See id. Accordingly, we shall reverse
her conviction.
JUDGMENT REVERSED. CASE
REMANDED TO THE CIRCUIT COURT
FOR FREDERICK COUNTY FOR
FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. COSTS TO BE
PAID BY FREDERICK COUNTY.
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