CA6: Alleged inappropriate search of 17-year-old girl before letting her go to bathroom during traffic stop that led to a drug dog and finding nothing gets to go to jury

A traffic stop of plaintiff’s family led to calling a drug dog. While waiting for the drug dog, plaintiff had to use the bathroom, and the detaining officers called for a female officer to escort her to a nearby bathroom and handcuffed her and inappropriately searched her finding nothing. There is also a question to be left for a jury whether this officer was already aware that the drug dog found nothing. Telling plaintiff to “step over here” for the search cuts both ways on the question of consent to that search while she was handcuffed, and a jury will have to decide. Harris v. Klare, 2018 U.S. App. LEXIS 25139 (6th Cir. Sep. 5, 2018):

The parties agree that at this point, Klare secured Harris’s hands behind her back. What happened next is disputed, but, as noted, for purposes of this summary judgment appeal, we must accept Harris’s version of events. She claims that, as part of a pat down, Klare placed her hands under Harris’s brassiere and pinched the girl’s breasts, causing bruising. According to Harris, Klare told her that she searched her the way she did because a previous suspect at that location had “stuffed needles in her bra” and because “[y]ou have that look,” “[y]ou have the look of a junkie whore.” But Klare found no drugs, drug paraphernalia, weapon, or other contraband on Harris.

. . .

A reasonable jury, considering the nature of Harris, her consent, and her detention, could find that Harris’s consent was not voluntarily given. The record would support a jury in finding that she did not verbally consent to be searched and that her consent, such as it was, consisted solely in walking towards Klare, as instructed, and her lack of resistance to the actual search. When a minor, untutored in her Fourth Amendment rights, seized for over an hour and in the presence of numerous armed police officers, with her arms secured behind her back and facing the choice of consenting to a search or being kept from the restroom, fails to resist that officer’s search of her person, a reasonable jury could find that this non-verbal consent was not voluntarily given.

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