D.F. v. State, 94-2582
| Decision Date | 01 May 1996 |
| Docket Number | No. 94-2582,94-2582 |
| Citation | 682 So.2d 149 |
| Parties | 21 Fla. L. Weekly D1041 D.F., a Child, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and John Tiedemann, Assistant Attorney General, West Palm Beach, for appellee.
Defendant appeals the denial of his motion to suppress cocaine. We conclude that the cocaine obtained as the result of an unlawful strip search should have been suppressed because the strip search constituted a clear and substantial violation of section 901.211, Florida Statutes (1993), a statute designed to regulate police conduct.
Defendant, a juvenile, was placed under arrest as a result of three outstanding warrants arising from traffic matters. At the time of arrest, he and his friends were walking on the street in Riviera Beach. The arresting officer knew defendant and his friends who always hung around in the same area, known by the officer to be a high drug area. After seeing defendant earlier in the day, the officer had done a computer check on defendant for warrants.
The officer arrested defendant, handcuffed him, and performed a pat-down search for weapons. Not finding any contraband or weapons, the officer felt comfortable placing defendant in the patrol car. The officer transported defendant to the Riviera Beach police station to fill out paperwork. With defendant still handcuffed, the officer had him remove his shoes and socks and then did a more thorough pat-down for weapons. Although the officer found no weapons during the pat-down, he noticed what felt like a plastic baggie containing hard objects between defendant's buttocks. He later described the ziploc end of the baggie as rolled up like a cylinder, which, based on his experience, is typical of the way people keep cocaine.
Upon feeling and squeezing the baggie, the officer instructed defendant to "drop his pants." Defendant complied. The officer then saw the tip of a baggie sticking out from between defendant's buttocks. He requested that defendant spread his legs so he could see the baggie, and when defendant did not comply, the officer spread his buttocks. The baggie fell to the ground. The officer did not wear gloves or wash his hands before conducting the strip search. During the strip search, an adult male inmate was also present in a holding cell. The baggie was found to contain five cocaine rocks.
The officer had worked for the City of Riviera Beach for five months and previously as a jailer in New York for five years. As a jailer, he performed both strip searches and body cavity searches. The officer testified that there was a verbal policy in the Riviera Beach police department requiring a supervisor's permission before performing a strip search. However, in the past, his supervisor had told the officers, "if you feel something like that, you can just go get it." The officer was unaware that other inmates should not be present during a strip search. The officer testified that if the cocaine had not been discovered, defendant would have been transported to the sheriff's department to complete the paperwork on the warrant and then he would have been released to his mother.
Section 901.211 mandates specific procedures before a strip search may be conducted. Section 901.211 provides:
(1) As used in this section, the term "strip search" means having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual or manual inspection of the genitals; buttocks; anus; breasts, in the case of a female; or undergarments of such person.
(2) No person arrested for a traffic, regulatory, or misdemeanor offense, except in a case which is violent in nature, which involves a weapon, or which involves a controlled substance, shall be strip searched unless:
(a) There is probable cause to believe that the individual is concealing a weapon, a controlled substance, or stolen property; or
(b) A judge at first appearance has found that the person arrested cannot be released either on recognizance or bond and therefore shall be incarcerated in the county jail.
(3) Each strip search shall be performed by a person of the same gender as the arrested person and on premises where the search cannot be observed by persons not physically conducting or observing the search pursuant to this section. Any observer shall be of the same gender as the arrested person.
(4) Any body cavity search must be performed under sanitary conditions.
(5) No law enforcement officer shall order a strip search within the agency or facility without obtaining the written authorization of the supervising officer on duty.
(6) Nothing in this section shall be construed as limiting any statutory or common-law right of any person for purposes of any civil action or injunctive relief.
(Emphasis supplied).
Defendant claims that the strip search in his case violated subsections (3), (4) and (5) of the statute because the search was conducted in the presence of another inmate; it was not conducted under sanitary conditions; and the officer did not obtain written authorization of his supervisor before the search. Defendant also claims that the strip search constituted an unreasonable search in violation of the Fourth Amendment and violated defendant's rights as a juvenile when he was placed in a holding cell with an adult inmate. 1
The state concedes that the strip search was done in violation of section 901.211 in that the search was done with another inmate present and the officer did not obtain the prior permission of his supervisor. The state does not agree that 901.211(4) was violated because the officer's strip search did not include penetration of a body cavity.
Despite conceding that the search violated portions of section 901.211, the state argues that the exclusionary rule should not be the sanction where the search was undertaken with probable cause under section 901.211(2)(a). Furthermore, the state contends that the failure to follow the statutory requirements should be excused because the search was done "in good faith."
"The purpose of a judicially imposed exclusionary rule is to deter police misconduct resulting in constitutional violations, or its equivalent." Rice v. State, 525 So.2d 509, 511 (Fla. 4th DCA 1988). See also Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Because the exclusionary rule was intended to serve as a deterrent to prevent future violations, the United States Supreme Court developed the good faith exception, which the state asserts applies here:
[W]here the officer's conduct is objectively reasonable,
Leon, 468 U.S. at 919-20, 104 S.Ct. at 3419 (quoting Stone v. Powell, 428 U.S. 465, 539-40, 96 S.Ct. 3037, 3073, 49 L.Ed.2d 1067 (1976) (White, J., dissenting)). However, the police officer's ignorance here of the requirements for a strip search and the supervisor's ignorance and misadvice to the officers do not constitute objective reasons for excusing the statutory violation. Ignorance of the law does not excuse a private citizen; it certainly does not excuse a law enforcement officer from violating a statute designed to regulate police conduct.
While a strip search of a juvenile does not per se violate the Fourth Amendment, a strip search of a juvenile suspect implicates both Fourth Amendment rights against unreasonable searches and seizures and privacy rights protected under the United States Constitution and, more explicitly, under the Florida Constitution. See Art. I, § 23, Fla. Const. It is the manner in which the search is conducted in a given case which may violate the Fourth Amendment. As the third district stated in Gonzalez v. State, 541 So.2d 1354, 1355-56 (Fla. 3d DCA 1989), a case dealing with the strip search of a prisoner:
[O]ne of the constitutional rights retained by a prisoner, at least to some minimal extent, is the protection of the Fourth Amendment against unreasonable searches and seizures. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). With respect to searches of the person of a prisoner, the court balances four factors in determining whether such searches are reasonable under the Fourth Amendment: (1) the scope of the intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted. Bell; Vera v. State, 400 So.2d 1008, 1010 (Fla. 3d DCA 1981). Applying these standards, it seems clear to us that "a more substantial showing should be necessary to justify a search of the person [of a prisoner] when it involves a strip search or an intrusion into the body." 4 W. La Fave, Search and Seizure § 10.9(b), at 110 (2d ed. 1987).
The "more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure, or the more it intrudes upon essential standards of privacy, the greater the requirement that the procedure be found necessary." People v. West, 170 Cal.App.3d 326, 216 Cal.Rptr. 195, 200-01 (1985).
In Rankin v. Colman, 476 So.2d 234 (Fla. 5th DCA 1985), review denied, 484 So.2d 7 (Fla.1986), the fifth district applied the balancing test to a case involving a strip search conducted after an arrest for failure to produce a driver's license. It held that "a strip search and body cavity search of persons arrested for minor traffic...
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