S.D.Ind.: Strip search for small quantity of marijuana was unreasonable

“It all began with a broken license plate light. One thing led to another, and the ensuing traffic stop in Madison, Indiana has become the subject of elaborate and expensive litigation that requires this lengthy tour through wide tracts of Fourth Amendment law, federal civil rights remedies, and state tort law.” The officer smelled marijuana coming from the car, and he searched it finding only a trace amount. The three plaintiffs were taken to a fire station and strip searched, and a small quantity was found on one. A strip search for a small quantity of marijuana was unjustified in this case, and it survives summary judgment. Lessley v. City of Madison, 2009 U.S. Dist. LEXIS 74618 (S.D. Ind. August 21, 2009):

It should go without saying that strip-searches are highly invasive. See Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (“We can think of few exercises of authority by the state that intrude on the citizen’s privacy and dignity as severely as the visual anal and genital searches practiced here.”). Jackson, a female officer, performed the searches in a closed bathroom alone with the plaintiff being searched. Jackson ordered each plaintiff to remove all of her clothes except her bra and her underwear. She ordered each plaintiff (except Lessley, who eventually produced marijuana) to pull out her bra cups. Finally, she ordered each plaintiff to pull her underwear below her knees and to squat down. To support this extreme and warrantless invasion of the plaintiffs’ privacy, Royce had probable cause to believe that Lessley possessed marijuana. By the time these searches occurred, no officer had probable cause to believe that Messer or Rhodehamel possessed marijuana on their persons.

The lack of probable cause to believe that the strip-searches would reveal marijuana ends the inquiry as to Messer and Rhodehamel. If the pat-downs were unconstitutional without probable cause, the more invasive strip-searches were unconstitutional as well. The strip-search of Lessley also violated the Fourth Amendment. While probable cause supported the search, warrantless strip-searches are sufficiently invasive that more than probable cause that a small amount of marijuana will be found is required.

This court addressed a similar situation in Gray v. City of Columbus, where the court held that a police officer was not entitled to qualified immunity when she performed a strip-search and body-cavity search on a woman and her twenty-two month old son. 2000 U.S. Dist. LEXIS 7207, 2000 WL 683394 (S.D. Ind. Jan. 31, 2000). In that case, Gray and her son were passengers in a car. An officer pulled over the car, searched the car, and found burnt marijuana joints in the car. The officer arrested the driver and transported Gray and her son to the police station. Gray and her son were not arrested. While at the station, a female officer ordered Gray and her son to submit to the strip-searches in a bathroom. The court held that the searches were unconstitutional: “the suggestion that American law enforcement officers have the authority, without a search warrant, to use the power of their badges and uniforms to conduct a strip search and body cavity search of a person who is not under arrest is simply stunning.” Gray, 2000 U.S. Dist. LEXIS 7207, 2000 WL 683394, at *10.

Gray accurately described the law in the Seventh Circuit. Strip-searches are permitted only in limited circumstances. Royce has identified no case in this district, any circuit, or from the Supreme Court where a court approved a warrantless strip-search of an individual who was not under arrest, at an international border, or at a school. 9 To the court’s knowledge, the Seventh Circuit has approved warrantless strip-searches only in the arrest, school, and border contexts. See Campbell v. Miller, 499 F.3d 711, 718 (7th Cir. 2007) (holding that strip-search incident to arrest was not per se unreasonable when supported by a reasonable suspicion that contraband would be found, but holding that search was performed in an unreasonable manner when conducted in public view); Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993) (school officials did not violate sixteen-year old student’s constitutional rights when they strip-searched him based on a reasonable suspicion that he was concealing drugs); Saffell v. Crews, 183 F.3d 655 (7th Cir. 1999) (customs inspector entitled to qualified immunity for strip-search at international airport’s customs checkpoint).