{"id":1056,"date":"2007-06-13T08:01:51","date_gmt":"2007-06-13T08:01:06","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-06-13T08:01:06","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1056","title":{"rendered":"Strip search during arrest after execution of a search warrant was unconstitutional for only having reasonable suspicion"},"content":{"rendered":"

(About 25 cases today which makes up for yesterday’s lack of cases. This will take awhile.)<\/em><\/p>\n

Plaintiff was on the premises when a search warrant was executed, and the officers only had reasonable suspicion as to him. He was patted down and nothing was found, so they unconstitutionally strip searched him. Burton v. Spokane Police Dep’t, 2007 U.S. Dist. LEXIS 42101 (E.D. Wash. June 11, 2007):<\/p>\n

Accordingly, because the strip search was not a Terry<\/em> stop, nor was it justified as a search incident to arrest, the officers were required to obtain a warrant before conducting a strip search, absent exigent circumstances. Id.<\/em> at 1449.<\/p>\n

Here, Defendants have not argued that exigent circumstances existed that would justify the warrantless strip search. In Fuller,<\/em> the circuit held that no exigent circumstances were present in that case because there was no risk that the alleged stolen property, a ring, would have been discarded or destroyed if hidden in a body cavity. Id.<\/em> at 1450. It noted that in a custodial setting, the police could have easily guarded against the possibility that the defendant would have removed the ring from her body cavity by observing her while the warrant was obtained. Id.<\/em> The circuit also concluded that the ring was not likely to pose any health risk to an individual secreting it within her body. Id.<\/em><\/p>\n

As in Fuller,<\/em> no exigent circumstances were present to excuse Defendant Bowman’s failure to obtain a warrant to conduct the strip search. Plaintiff was handcuffed and he could have easily been observed while the officers obtained a warrant to conduct a strip search. As such, the warrantless strip search conducted in the field was unconstitutional.<\/p>\n

(2) Qualified Immunity<\/em><\/p>\n

Defendant Bowman would enjoy qualified immunity from liability in connection with the strip search of Plaintiff if a reasonable police officer could have believed that searches were lawful, in light of clearly established law and the information he possessed at the time. Fuller,<\/em> 950 F.2d at 1450.<\/p>\n

As noted above, Robinson, Giles<\/em>, and Fuller<\/em> clearly established that strip searches in the field, absent a warrant or exigent circumstances, are unconstitutional. Robinson was decided in 1973; Giles was decided in 1984; and Fuller was decided in 1991. The Court finds that the law regarding strip searches was clearly established and Defendant Bowman is not entitled to qualified immunity.<\/p><\/blockquote>\n

Not a search and seizure case, but a \u00a7 1983 case on malicious prosecution and due process: A grand jury indictment is prima facie probable cause for arrest, but it can be rebutted. Here, it wasn’t, despite Brady<\/em> claim. However, the officer’s withholding Brady<\/em> information before indictment that led to plaintiff’s acquittal at trial was sufficient to defeat summary judgment. “Parties are encouraged to discuss settlement.” Carvajal v. Dominguez, 2007 U.S. Dist. LEXIS 42115 (N.D. Ill. June 11, 2007).*<\/p>\n

No IAC for defense counsel’s failure to get a plea agreement for defendant where the defendant never wanted to plead guilty. There was also a waiver of his search and seizure claim. United States v. Diaz-Ramirez, 2007 U.S. Dist. LEXIS 42122 (S.D. Tex. June 11, 2007).*<\/p>\n

Prosecuting Attorney who advised an officer that the officer should arrest plaintiff for an allegation of sexual abuse had qualified immunity based on the facts known at the time. Barela v. City of Woodland, 2007 U.S. Dist. LEXIS 42154 (W.D. Wash. June 11, 2007).*<\/p>\n

Officer was entitled to qualified immunity for plaintiff’s arrest for solicitation because there was cause for the initial stop and the investigation turned to the solicitation charge. Gonzalez v. Order City of Federal Way, 2007 U.S. Dist. LEXIS 42156 (W.D. Wash. June 8, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-1056","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1056","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1056"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1056\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1056"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1056"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1056"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}