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LEGAL REVIEW (R)
|Vol. 40 No. 2||March / April 2011|
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Highlights of This Issue
United States Supreme Court
Federal and State Decisions
United States Supreme Court
Arrest, Search and Seizure
Crimes; Evidence; Trial Issues
Civil Liability/Personnel Law
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Special BulletinSpecial Bulletin: Search Incident to Arrest: “Strip Search” v. “Reach-in” Search; Reasonableness
Allen v. State, Nos. 1963, 1968 (Md. 2011).
A “reach in” (the defendant’s pants) search incident to an arrest for possession of narcotics is basically the same as a strip search and must meet the same standards of reasonableness as a strip search. The difference between the two types of searches is that the officers reach into a defendant’s underclothes to find narcotics hidden in his private parts in the first type of search, whereas in the second type of search the subject’s clothing is removed. The court considered the factors that make such searches reasonable under the Fourth Amendment. The officers had probable cause that defendants were hiding narcotics on their persons.
“. . . [A] strip search is not the type of search that the police may conduct automatically incident to arrest; rather, the reasonableness of such a search is determined by consideration of the four-factor test set forth by the Supreme Court in Bell [v. Wolfish,441 U.S. 520 (1979)] . . .”
“. . . [T]he analysis for a strip search incident to arrest applies, and the reasonableness of a reach-in search is to be determined by reference to the four factors set forth by the Supreme Court in Bell: 1) the scope of the particular intrusion; 2) the manner in which it is conducted; 3) the justification for initiating it; and 4) the place in which it is conducted. 441 U.S. at 559.
“Applying these factors to the present case, we hold that the searches were reasonable. . . .
“The State argues, and appellants do not dispute, that the police had justification for the searches, given that they were ‘incident to a lawful arrest for narcotics distribution, and it was reasonable for the police to believe that Mr. Allen and Mr. Smith were concealing drugs on their persons.’ We agree.”
“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. . . . As indicated, the testimony here was that the officers took precautions to protect appellants’ privacy; the searches were conducted so that no one, other than the searching officer, could have observed appellants’ buttocks.”
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