Search incident to civil offense is unconstitutional

After police officers observed a minor in possession of a cigarette in violation of state statute, a civil offense for which a citation may be issued, the officers’ suspicion that the minor might be in possession of additional tobacco products did not justify their frisk and search of the minor’s person. The minor moved to suppress the evidence of illegal drugs that the police discovered when they conducted their search. In re Calvin S., 175 Md. App. 516, 930 A.2d 1099 (2007). The search could not be considered as one for “contraband” or a Terry frisk because a Terry frisk is limited to weapons:

The State relies on Calvin’s violation of CL § 10-108 as a valid basis for conducting the search of his person. We conclude, however, that the officers were not permitted to search Calvin incident to the citation issued for possession of tobacco products. The Supreme Court addressed an analogous issue in Knowles v. Iowa, 525 U.S. 113, 115 (1998), a case in which a police officer stopped a driver for speeding and issued the driver a citation. The officer then proceeded to conduct a full search of the vehicle, finding marijuana and drug paraphernalia. Id. The Supreme Court held that the driver’s motion to suppress the drug evidence should have been granted, explicitly rejecting the argument that a “search incident to citation” is permitted by the Fourth Amendment. Id. at 118.