E.D.Va.: Warrantless strip search in drug case unjustified and suppressed

The search of defendant’s car and cell phones were justified by probable cause and, as to the phones, a warrant. His warrantless strip search, however, was not properly justified from its inception, and it is suppressed. United States v. Peterson, 2019 U.S. Dist. LEXIS 69922 (E.D. Va. Apr. 25, 2019):

C. The Strip Search

Courts apply a “‘flexible test’ to determine the reasonableness of a broad range of sexually invasive searches,'” including strip searches. United States v. Edwards, 666 F.3d 877, 883 (4th Cir. 2011) (quoting Amaechi v. West, 237 F.3d 356, 363 (4th Cir. 2001)). In considering the reasonableness of a strip search, courts must “balance[e] the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). Specifically, courts consider the following factors: “1) the place in which the search was conducted; 2) the scope of the particular intrusion; 3) the manner in which the search was conducted; and 4) the justification for initiating the search.” Edwards, 666 F.3d at 883.

In this case, the first factor weighs in favor of reasonableness because Hagen searched Peterson in a private shower area. See Polk v. Montgomery Cnty., 782 F.2d 1196, 1201-02 (4th Cir. 1986). Nonetheless, the scope of the intrusion was as broad as possible because Peterson had to remove every article of clothing. Hagen saw a plastic baggy sticking out from the side of Peterson’s groin area only after Hagen directed Peterson to take off all his clothes. See Hr’g Tr. 235:22-23 (“As soon as he pretty much dropped his underwear I could see it.”). With respect to the manner of the search, Hagen never touched or grabbed Peterson during the search, nor did Hagen expose Peterson to any danger. When Hagen asked Peterson about the plastic attached to his groin area, Peterson simply removed two plastic baggies and handed them to Hagen. Cf. Edwards, 666 F.3d at 885 (noting that an officer’s “use of a knife in cutting the sandwich baggie off [the defendant’s] penis posed a significant and an unnecessary risk of injury” to the defendant”).

The justification for the search, however, strongly weighs against reasonableness. Russell asked Hagen to search Peterson after Russell had twice frisked Peterson at the roadside and after a magistrate had released Peterson on a personal recognizance bond. Russell had no concerns for his safety or the safety of others at Pamunkey Regional Jail—he simply had a hunch that Peterson had illegal drugs hidden under his clothes. See Winston v. Lee, 470 U.S. 753, 767, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985) (holding that sexually invasive searches require “a more substantial justification”). Moreover, “[a]t no time would [Peterson]… be intermingled with the general jail population,” Logan, 660 F.2d at 1013, so any concerns about inmate safety cannot justify the search. Cf. Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 330, 132 S. Ct. 1510, 182 L. Ed. 2d 566 (2012) (“Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process.”).