IA: Strip search incident shown justified in drug arrest

Strip search as a search incident to arrest was shown justified on this record. The smell of marijuana came from his person but nothing was on him. State v. Evans, 2016 Iowa App. LEXIS 1004 (Sept. 28, 2016):

In this case, Officer Nissen localized the source of the marijuana smell to emanate to a specific person, Evans. In trial testimony, Officer Nissen was asked: “[W]hat would you describe as far as the level of the smell of marijuana that was coming from the defendant at that point? In what area of the defendant was it coming from?” He responded, “It was inside the underwear of the defendant. While I searched his waistband the odor was intense to the point that I was 100 percent sure that he had marijuana down his pants.” The smell of burnt marijuana on Evans’ person, the scent of fresh marijuana coming from Evans’ undergarments, Evans’ statement he had smoked marijuana recently, and Evans’ behavior throughout the initial searches were sufficient to support probable cause for arrest. Probable cause need not rise to the level of proof required for conviction. State v. Horton, 625 N.W.2d 362, 365 (Iowa 2001).

In respect to the second requirement—whether the arrest was contemporaneous with the search—after the marijuana and cocaine were found during the strip search, Evans was then informed by Officer Sullivan that he was being charged with possession with intent in respect to the cocaine, a drug tax stamp violation, and possession of marijuana. We conclude the arrest was contemporaneous with the search.

Because Officer Nissen arrested Evans and had probable cause for the arrest, the strip search performed after transportation to the police station was justified under the search-incident-to-arrest exception to the general warrant requirement rule. See Iowa Code § 804.30; State v. Gaskins, 866 N.W.2d 1, 15 (Iowa 2015) (noting that a search incident to arrest remains a valid exception to article I, section 8 of the Iowa Constitution “when the arrested person is within reach of contraband and thus able to attempt to destroy or conceal it”); see also Bradford, 620 N.W.2d at 507.

Accordingly, we affirm the district court’s denial of Evans’ motion to suppress on grounds the strip search was a lawful search incident to arrest.