KY: Pulling down handcuffed defendant’s pants to search for crack felt in a patdown was unreasonable

Plain feel during a patdown revealed crack cocaine, but the officer had to pull down the defendant’s pants and underwear to see it, hidden beside defendant’s genitals. This was an unreasonable and inappropriate search. Marshall v. Commonwealth, 2008 Ky. App. LEXIS 347 (November 7, 2008):

We are persuaded that the police officers exceeded the bounds of propriety and reasonableness in pulling down Marshall’s pants and underwear, leaving him exposed. Though some states have statutes that specifically govern how strip searches should be conducted, Kentucky does not. Therefore, we must apply Fourth Amendment principles of reasonableness, which the U.S. Supreme Court has defined as:

a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989). We conclude that the search of Marshall fails this test.

We shall first examine the scope and manner of the search. In a venerable old case, the U.S. Supreme Court stressed the sanctity of one’s personal privacy when it said:

The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one . . . to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass[.] Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891) (emphasis added). The Eighth Circuit reiterated this concept more recently when it stated that: “a strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982).

The trial court made a finding that the search did not cause Marshall embarrassment – contrary to Marshall’s direct assertion that he was “acutely embarrassed.” Officer Schwartz testified that he pulled Marshall’s pants almost to his knees; he pulled Marshall’s underwear down past his buttocks, leaving him fully exposed. Marshall was in handcuffs at the time. Although Officer Schwartz testified that he did not believe anyone could see into the room where the search was conducted, he admitted that the door was open and that several people were in the apartment. He also had told two women to stay inside the apartment. We are not aware that he took any precautions to prevent them from viewing the scene of the search. …

Random license check on a moving vehicle that owner had a suspended DL was cause for stop. Armfield v. State, 2008 Ind. App. LEXIS 2525 (August 11, 2008)*:

We agree with Ritter and Kenworthy that knowledge that the registered owner of the vehicle has a suspended license is enough to constitute reasonable suspicion for an officer to take the minimal action of initiating a traffic stop. Here, Officer Schmidt made the traffic stop based on the random license plate check revealing that the owner of the vehicle, Armfield, was without privileges to drive. Based on our analysis above, the officers did have the requisite reasonable suspicion to initiate the Terry stop. Therefore, the trial court properly admitted the evidence resulting from the stop.