MS: Reaching into defendants underwear to seize drugs as a search incident was reasonable

Reaching into defendants underwear to seize drugs as a search incident was reasonable. It was not a strip search. Foxworth v. State, 94 So. 3d 1178 (Miss. App. 2011):

P6. While a search incident to arrest can exceed the scope of some other warrantless searches, the scope of the search is not limitless. “As intrusiveness increases, the amount of suspicion necessary to justify the search correspondingly increases.” United States v. Vega-Barvo, 729 F.2d 1341, 1344 (11th Cir. 1984). There are certain limitations regarding the use of strip searches. While a strip search has not specifically been defined by Mississippi common law, surrounding jurisdictions have addressed the term. A strip search has been defined as “any exposure or observation of a portion of a person’s body where that person has a ‘reasonable expectation of privacy.’” Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1215 n.9 (N.D. Ill. 1990) (citation omitted). A strip search has also been defined as “the removal of the arrestee’s clothing for inspection of the under clothes and/or body.” State v. Nieves, 383 Md. 573, 861 A. 2d 62, 70 (Md. 2004) (citing William J. Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L. Rev. 665, 667 (2000)). Black’s Law Dictionary 1469 (9th Ed. 2009) defines a strip search as a “search of a person conducted after that person’s clothes have been removed, the purpose [usually] being to find any contraband the person might be hiding.”

P7. In this case, Officer Keckler reached inside Foxworth’s pants and undergarments to remove an item he believed to be a controlled substance. At no point was Foxworth forced to remove any clothing. There is also no indication that any part of his body was ever exposed to the public. He remained fully clothed during the entire search. The Mississippi Supreme Court has upheld cases where the officer pulled a bag out of the defendant’s belt line and also where officers retrieved evidence from the pocket of the defendant. See Ellis, 573 So. 2d at 725; Johnson v. State, 999 So. 2d 360, 365 (¶23) (Miss. 2008). While those cases do not directly address the issue of a strip search, the conduct of the police officers in those cases was found to be appropriate. The actions taken by Officer Keckler are similar to the conduct in those cases. He simply retrieved evidence from inside Foxworth’s clothing. Because no strip search occurred and the search incident to arrest was appropriate, we find no error.

Remember the first episode of FX’s “The Shield”? In the opening scene, Vic Mackey yanks down a suspect’s pants and removes drugs from his genitalia. That was in an alley.