N.D. Cal. sets standards for strip searches in the field

N.D. Cal. sets standards for strip searches occurring in the field, away from a jail or police station. Foster v. City of Oakland, 621 F. Supp. 2d 779 (N.D. Cal. 2008):

What is not clear is the extent to which a strip search may be conducted in the field. There is no case law suggesting that such a search may be performed in the absence of an arrest. All of the cases are premised on there being an arrest, not merely a detention or a stop for questioning. An arrest must be based on probable cause and may thus justify some type of search depending on the circumstances. However, detentions and stops that are short of an actual arrest will not support a strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v. Ohio, 392 U.S. 1 (1968), justify a Terry stop. Given the limits on strip searches even in a jail setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest. It is clear that the “full search” authorized by Robinson is ordinarily conducted for the officers’ safety. A “full search” incident to arrest, however, does not permit a strip search or bodily intrusion. Like the searches in Fuller, the searches in the instant case are unrelated to prison security. Field strip searches by definition occur before a suspect has arrived at a detention facility. And even after the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at a detention facility does institutional security become a factor, thereby permitting searches for weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an arrestee poses no threat to prison security, and officers in the field are adequately protected by their ability to perform security searches incident to arrest.

Therefore, the court concludes that officers in the field are generally limited to a search incident to arrest as described in Robinson and that strip and more invasive searches in the field may only be performed under exigent circumstances and with probable cause which may, consistent with the above, require a warrant. In sum, the court concludes that the Fourth Amendment requirements for the three types of strip searches performed in the field–strip search, visual body cavity search and physical body cavity search–are as follows:

1) there must be exigent circumstances;

2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

3) the search requires probable cause that is independent of the probable cause found for the arrest;

4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs or dangerous contraband; and

5) additionally, physical body cavity searches require a warrant authorizing the search and must be administered by an authorized medical professional.

Defendant was a passenger in a car stopped for a traffic violation, but he was asked about his probationary status, and the officer checked the computer on his status. The defendant could only believe he was under investigation, and that was a “stop” of the passenger. State v. Highley, 219 Ore. App. 100 (2008):

On these facts, it may be inferred under the totality of the circumstances that (a) defendant understood that [the officer] was investigating him when he sought defendant’s identification and continued to investigate him through the time that the drugs were discovered, (b) defendant did not believe that he was free to leave, and (c) defendant’s belief was objectively reasonable. The trial court correctly concluded that, under Hall, the request for defendant’s identification, closely followed by the check of defendant’s probationary status, and the request for consent to search defendant, constituted a stop.

Defendant did not have standing in a car and a gun he left in the car when he fled the car, leaving the door open and the gun in plain view. State v. Kimble, 106 Conn. App. 572, 942 A.2d 527 (2008).*