Opinion
No. 02-10120-01-WEB
November 13, 2002
MEMORANDUM AND ORDER
This matter came before the court on October 31, 2002, for a hearing on the defendant's motion to suppress evidence. The court orally granted the motion at the conclusion of the hearing. This written memorandum will supplement the court's oral ruling.
I. Facts
The court finds the following facts from the evidence presented at the hearing. Officer Daniel Harty of the Wichita Police Department is assigned to the department's gang unit. He has received specialized training on gangs and knows it is not uncommon for gang members to possess firearms and engage in drug trafficking. In July of 2002, Harty identified the defendant Steven Calhoun as being a member of a gang known as the "Blood Gang." Among other things, Harty determined that Calhoun had previously been stopped in the presence of known gang members, he had worn gang colors and had tattoos associated with gang membership, he had admitted being a former member of the "True Boys" gang (although he denied being a member of the Blood Gang), and he had admitted that his nickname was "Big Steve," which Harty believed was the street name of a local gang member. Harty also knew the defendant had at least three prior arrests relating to narcotics, although, so far as Harty knows, the defendant was not convicted as a result of any of those arrests.
One of the defendant's prior arrests occurred on November 19, 1999, when Wichita police officers were investigating reports of a drive-by shooting and they encountered the defendant. Although the officers apparently had no evidence of the defendant's involvement in the shooting, they took him into custody and one of the officers patted him down. Officer Harty subsequently arrived on the scene and was asked to do another pat down search on the defendant. Harty did so and did not find any weapons, but he did feel a strange object in Calhoun's clothing next to his crotch. Officer Harty manipulated the object and heard what sounded like plastic. In a subsequent search, the defendant's underwear was removed and officers found a quantity of crack cocaine sewn into the lining of the underwear. The defendant was charged in District Court in Sedgwick County with possession of cocaine with intent to sell. The defendant filed a motion to suppress the evidence against him in that case, arguing he had been unlawfully searched. In December of 2000, a state district judge granted the motion, and the case was dismissed. Doc. 16, Exh. E.
No testimony was presented at the suppression hearing in this case concerning details of the November 1999 search. The court gleans the facts set forth above from the attachments to the parties' briefs.
On August 13, 2002, at about 1:30 a.m., Officer Harty and his partner, Officer Chad Beard, were in their patrol car at a parking lot at Longfellow and Harry Streets in Wichita. The defendant lived in an apartment on Longfellow. Officer Harty saw a GMC Suburban, which he recognized as the defendant's car, turn down Longfellow Street, and Harty could tell that Calhoun was the driver. Just minutes before seeing the car, Harty had run a check on the defendant and learned that Calhoun had an outstanding City of Wichita traffic warrant and his driver's license had been suspended. The officers turned on their emergency lights and stopped the vehicle.
Officer Harty approached the defendant and told him to step out of the car, informing him he was being arrested for having an outstanding traffic warrant and for driving with a suspended license. Harty handcuffed the defendant and did a pat down search. He found $373.10 in cash in the defendant's pocket. Officer Beard searched the defendant's car, but found nothing. One of the officers did a second pat down search before the defendant was placed in the patrol car. The officers found no evidence to indicate the defendant was in possession of weapons or narcotics.
The defendant was taken to the Sedgwick County Detention Facility. The offenses for which he was arrested are non-violent traffic-related misdemeanors. Kansas law provides that "No person detained or arrested solely for the violation of a statute, resolution or ordinance involving a traffic, regulatory or nonviolent misdemeanor offense shall be strip searched unless there is probable cause to believe that the individual is concealing a weapon or controlled substance." K.S.A. § 22-2521(a).
Individuals booked into the Sedgwick County jail on first-time municipal traffic warrants or municipal driving-while-suspended charges are generally subjected to a thorough pat down search before being placed in a holding cell, but they are not strip searched. The standard procedure in such cases is to have a Detention Deputy inventory all property in the individual's possession, to have the individual remove his socks and shoes for inspection, to look in the individual's mouth, to check his shirt collars, and so forth. The foregoing was not done in Mr. Calhoun's case, however, because Officer Harty asked the Detention Deputy to perform a strip search instead. Harty did so due to the fact he had found cocaine concealed in the defendant's underwear during the defendant's November 1999 arrest. When told of the officers' plan to do this, Mr. Calhoun became upset and complained, "You can't do that, I'm only being booked on misdemeanor charges."
There is a provision in Kansas law (K.S.A. § 22-2524) effectively permitting strip searches on accused individuals who are, of necessity, confined with other prisoners in a jail while awaiting appearance before a magistrate. Section 22-2524 apparently does not apply here because, in view of his alleged offenses, the defendant would have been released on his own recognizance after booking instead of being brought before a magistrate. See Doc. 20 at p. 4, n. 1.
Officer Hardy testified that he inquired of a Detention Deputy what was required for a strip search, and was told that it required probable cause.
The officers took the defendant to an enclosed room and began a strip search. The Detention Deputy directed Calhoun to take off his shoes, socks and shirt. Mr. Calhoun complied. After that, but prior to the removal of Calhoun's jean shorts, Officer Harty saw Calhoun place his hand down inside his shorts, causing Harty some concern that Calhoun might be concealing a weapon or contraband. The defendant subsequently complied with the officers' requests to take off his jeans and underwear, and to lift his testicles. When the defendant did so, Officer Harty saw a white object in Calhoun's crotch. The object was removed, and was determined to be crack cocaine.
Officer Harty testified he does not know whether the Wichita Police Department has a policy on strip searches. The defense showed that the Department in fact has a policy, and that it requires all strip searches to be authorized by a commissioned supervisor. Def. Exh D1. No such authorization was obtained here. The policy also tracks the language of K.S.A. § 22-2521 in that it prohibits strip searches for non-violent misdemeanors unless there is probable cause to believe the individual is concealing a weapon or controlled substance.
At some point (the record is not clear when), Officer Harty asked the defendant where he obtained the cash that was in his pocket at the time of the arrest. The defendant said he got it from working at a construction company and a lawn care company. A report in the file indicates that the cash included one (1) one hundred-dollar bill, one (1) fifty-dollar bill, ten (10) twenty-dollar bills, one (1) ten-dollar bill, and three (3) one-dollar bills.
II. Arguments
The defendant argues that the strip search violated K.S.A. § 22-2521 because it was not supported by probable cause, and further argues that it violated the Fourth Amendment because it was conducted without reasonable suspicion. The defendant contends that the evidence obtained from the search must therefore be suppressed. In response, the Government asserts that the standard is whether the officer had probable cause to believe the defendant had a weapon or contraband (citing Kraushaar v. Flanigan, 45 F.3d 1040 (7th Cir. 1995), and it maintains that the defendant's prior arrests (including his concealment of cocaine in November of 1999), his gang affiliation, the amount of cash in his possession, and his "furtive" hand movements at the jail rise to the level of probable cause.
III. Discussion
As an initial matter, the court notes that the standard for determining whether the evidence must be suppressed in this action is the United States Constitution, not state law. "The authority in a federal case for suppressing evidence due to an unlawful search is the Fourth Amendment to the Federal Constitution." United States v. Price, 75 F.3d 1440, 1443-44 (10th Cir. 1996) (citing United States v. Mitchell, 783 F.2d 971, 973, 974 (10th Cir.), cert. denied, 479 U.S. 860 (1986)). "The fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended." See United States v. Martin, 289 F.3d 392, 399 (6th Cir. 2002).
The Supreme Court has not clearly defined the circumstances in which police or prison officers can strip search detainees. In Bell v. Wolfish, 441 U.S. 520 (1979), the Court found that a federal detention facility's policy of strip searching inmates (including a body cavity search) after every contact visit with a person from outside the institution was reasonable under the Fourth Amendment and, insofar as pre-trial detainees were concerned, the policy was legitimately related to institutional security and did not amount to "punishment" under the Due Process Clause. Id. at 558-59. With regard to the reasonableness of such searches generally, the Court stated:
In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it was conducted.
It should be noted that Bell primarily involved federally-charged individuals who had been denied bail and were awaiting trial. That case involved charges much more serious than routine traffic misdemeanors, and the individuals in Bell were generally detained for much greater periods than are at issue in this case.
Most circuit courts have concluded that a strip search of a person arrested on traffic violations or other non-dangerous misdemeanors is unconstitutional in the absence of a reasonable suspicion that the arrestee is carrying concealed weapons or other contraband. See Cuesta v. School Bd. of Miami-Dade County, Fla., 285 F.3d 962 (11th Cir. 2002); Roberts v. State of R.I., 239 F.3d 107, 111 (1st Cir. 2001) ("when the inmate has been charged with only a misdemeanor involving minor offenses or traffic violations, crimes not generally associated with weapons or contraband, courts have required that officers have a reasonable suspicion that the individual inmate is concealing contraband"); Kraushaar v. Flanigan, 45 F.3d 1040, 1053 (7th Cir. 1995) (upholding strip search based on reasonable suspicion); Wachtler v. County of Herkimer, 35 F.3d 77, 81 (2d Cir. 1994). In Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984), the Tenth Circuit found a strip search unconstitutional where it was performed without reasonable suspicion on a person arrested for a traffic offense who was briefly placed in the jail's general population before being released. A significant factor in that case was that the strip search took place in the jail lobby in front of ten to twelve people. Id. at 395. On the other hand, a strip search is justified if the suspect is arrested on drug charges and is to be placed in a jail's general population. Foote v. Spiegel, 118 F.3d 1416, 1425 (10th Cir. 1997). See also Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993).
The instant case involves an individual arrested on traffic-related matters who was being booked into jail but was due to be released on his own recognizance as soon as his paperwork was completed. Under the authorities listed above, the court concludes that the Fourth Amendment requires reasonable suspicion that such a person is concealing weapons or contraband, based on specific and articulable facts, before a strip search may be conducted. Although the instant case presents a close question, the court concludes the Government has not met its burden of showing that the strip search of the defendant was supported by reasonable suspicion. Unlike a simple pat down search, "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 defendant in this case was arrested on August 13 solely for traffic-related matters; his arrest had nothing to do with weapons or contraband. Nothing about the circumstances of his arrest reasonably suggested he was then in possession of drugs or weapons. The defendant did not slur his words or appear to be under the influence of drugs at the time of his arrest. He was responsive to the officers and complied with their requests. Aside from a cursory and unexplained remark in Officer Harty's testimony (concerning an informant who may have offered to try to buy drugs from the defendant), there was no evidence the police had any information that the defendant was engaged in drug trafficking at or around the time of his arrest. The officers did not know where the defendant had been on the night in question. The defendant was patted down at least twice at the time of his arrest, but nothing was found to suggest that he was in possession of weapons or drugs. The defendant's car was also searched, but no evidence of drug or weapon possession was found. The fact that the police believed the defendant was a gang member, without more, did not establish a reasonable suspicion that he was concealing weapons or contraband in his crotch at the time of his arrest on August 13, 2002, so as to justify a strip search. The defendant's apparent association with a gang might warrant questioning or additional surveillance by the officers to determine if evidence of a crime could be gathered, but it did not justify a strip search upon an arrest for a traffic matter.
The Government indicated in its brief that an individual in these circumstances would be released on his own recognizance. At the suppression hearing, however, the court understood some of the testimony to suggest that an individual in that situation might have to post a cash bond. In either event, the evidence indicates that the individual would be held only briefly, and the court concludes that a strip search in these circumstances would require reasonable suspicion. Cf. Cottrell v. Kaysville City, Utah, 994 F.2d 730, 744 (10th Cir. 1993) ("Courts have consistently recognized a distinction between detainees awaiting bail and those entering the jail population when evaluating the necessity of a strip search under constitutional standards. [citations omitted] We agree that the security concerns inherent in a bail situation are very different from those present when the detainee will enter the jail for a greater length of time.").
The Government argues the search in this case was justified by the officers' individualized suspicion of the defendant. The case does not involve a generally applicable policy of strip searching all arrestees who are placed in a holding cell with other detainees. Accordingly, the court does not address under what circumstances the latter type of search might be justified. Cf. Cruz v. Finney County, Ks., 656 F. Supp. 1001 (D.Kan. 1987) (finding jail policy of strip searching arrestees on traffic and misdemeanor cases unconstitutional).
Similarly, the court concludes that the Government's reliance on the defendant's prior arrests and the cash found in his pockets did not give rise to a reasonable suspicion that he was concealing contraband at the time of his arrest. As an initial matter, the fact that the defendant had been previously arrested is of limited significance where, as here, the arrests were not recent and there was no indication the defendant had ever been convicted of any drug or weapon offense. And although Officer Harty knew the defendant had concealed contraband in his crotch during his August 1999 arrest, that incident occurred almost three years before the instant arrest, and the officer cited no specific basis for suspecting that the defendant was currently involved in drug trafficking or possession. As for the cash in the defendant's pocket, the amount involved was not so significant as to suggest a likelihood of drug trafficking, nor were the officers aware of any other circumstances suggesting that the money came from drug dealing as opposed to legitimate sources. Finally, the court concludes that the defendant's alleged "furtive movement" of placing his hand in his jean shorts at the jail cannot be considered as contributing to reasonable suspicion, because that movement came after the strip search had already begun. In sum, the court concludes that the circumstances did not give rise to a reasonable suspicion that the defendant was concealing drugs or weapons so as to justify the strip search on August 13, 2002.
IV. Conclusion
The defendant's Motion to Suppress (Doc. 16) is GRANTED. IT IS SO ORDERED this 13th Day of November, 2002, at Wichita, Ks.