OR: Anal cavity search could not be justified by search incident doctrine

Anal cavity search for drugs at the stationhouse, rather than on the street, could not be justified as a search incident. It was so intrusive that a warrant was required under the state constitution. State v. Scruggs, 274 Ore. App. 575, 2015 Ore. App. LEXIS 1294 (Nov. 4, 2015):

Nevertheless, the officers believed that defendant still had drugs concealed on his person, and, in accordance with police department policy that prohibits conducting strip searches on the street, Ajir transported defendant to the local precinct station to conduct what he described as a “more intrusive search.” The officers believed that was necessary because, in their experience, it is common for drug dealers in Old Town to hide drugs inside their anal cavities—a practice known as “keistering”—or pressed between their buttock cheeks. At the station, officers placed defendant in a private room. Wells instructed defendant to remove his outer clothing and then went through each item of clothing to check for hidden pockets or tears where defendant could have hidden drugs. Wells then instructed defendant to remove his underwear and ordered him to bend over, to use his own hands to spread apart his buttock cheeks, and to cough so that Wells could see if there were drugs inside defendant’s anus. Defendant bent over, but only at a 45-degree angle, grabbed his buttock cheeks and “halfheartedly” spread them (but not to the point that Wells could observe anything), coughed, and then quickly stood back up. Those actions led Wells to believe that defendant was concealing something deeper inside his buttocks.

. . .

With that in mind, we reject the state’s argument that, although the search was “highly intrusive,” it was still within the reasonable parameters for a search incident to arrest. That is, we do not agree that the search, a physical intrusion of defendant’s body, was comparable to a search of his clothing, personal items, or closed containers within his immediate control. The officers decided to bring defendant to the Old Town precinct station to conduct a strip search because, as they described it, such a search is “more intrusive” and, thus, not appropriate for the street. We disagree with the state’s assertion that the officers’ decision was similar to the one in Hernandez, 199 Ore. App. at 569, where officers brought items that may have contained drugs to the precinct station to open them in “a secure, controlled environment” because it was impractical to open them in the street; that search was not done at the station precinct for privacy reasons. The search incident to arrest exception for the purpose of discovering evidence is not unlimited—it does not extend to “everything [in the arrestee’s] immediate possession,” Woodall, 181 Ore. App. at 219—and in the factual circumstances here of searching for evidence of drug possession, the search’s scope and intensity were more intrusive than what is typically allowed for searches incident to arrest. Defendant was subjected to a search—a strip search and then the forcible manipulation of his body and his buttocks to locate evidence therein—that was dehumanizing and humiliating. We conclude, as did the trial court, that the search of defendant was a “deep intrusion” into his privacy. The trial court did not err in concluding that the search was not reasonable in scope or intensity.