NC: Strip search incident on street unreasonable

Defendant’s strip search incident on the street was unreasonable, even if it was with probable cause (the probable cause issue held waived). State v. Battle, 202 N.C. App. 376, 688 S.E.2d 805 (2010), Review denied, 364 N.C. 327, 700 S.E.2d 926 (2010):

In Starks v. City of Minneapolis, 6 F.Supp.2d 1084 (D.Minn., 1998), the United States District Court of Minnesota commented on the rarity of this kind of invasive roadside search.

As one might expect, there is very little case law considering the use of on-street strip searches. The Court considers the paucity of case law as reflective of the natural assumption that these things simply do not occur. By way of example, the United States Supreme Court, when considering the governmental interest underlying a stationhouse search of an arrestee, stated in Illinois v. Lafayette, 462 U.S. 640, 645, 103 S.Ct. 2605, 2609, 77 L.Ed.2d 65 (1983) that, “the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street.” Other courts have explicitly recognized that a strip search on a public street is not justified. “Probable cause that an arrestee is hiding something on his body does not justify conducting on a public street a strip search or some search akin to one.” United States v. Bazy, Nos. 94-40018-01-SAC, 94-40018-02-SAC, 1994 U.S. Dist. LEXIS 14165, 1994 WL 539300, at 8 (D.Kan. Aug.29, 1994).

Similarly, the Fourth Circuit upheld a strip search which occurred in a police van, finding it was not unconstitutional because “the search did not occur on the street subject to public viewing.” United States v. Dorlouis, 107 F.3d 248, 256 (4th Cir.1997). Under very unusual circumstances, the D.C. Circuit upheld a strip search on a public street when officers had deduced that the defendant was trying to push drugs into his buttocks. But even under such circumstances, that circuit stated, “We wish to make it clear, however, that such public intrusions should not be the norm. Ordinarily, when police wish to search the private areas of an arrestee’s person incident to arrest, they should first remove the arrestee to a private location–i.e., a private room in the stationhouse.” United States v. Murray, 22 F.3d 1185, 306 U.S. App. D.C. 103 (D.C. Cir.1994).

Starks, 6 F.Supp.2d at 1088.

“A strip search is an invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). The Seventh Circuit described strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” Mary Beth G. v. City of Chicago, 723 F.2d at 1272; see also Chapman, 989 F.2d at 396. No matter how professional or courteous the manner used in conducting a strip search, it remains an embarrassing and humiliating experience. Boren v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir. 1992). Strip searches, thus, are not a matter of course for searches incident either to arrest or detention.

United States v. Bazy, 1994 U.S. Dist. LEXIS 14165, *13-14 (D. Kan. Aug. 29, 1994), aff’d, 82 F.3d 427 (10th Cir., 1996); see also Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991) (“[T]he ‘full search [incident to arrest]’ authorized by [the United States Supreme Court decision in] Robinson was limited to a pat-down and an examination of the arrestee’s pockets, and did not extend to ‘a strip search or bodily intrusion.'”).