U.S. v. Barnes, CR. 05-119-T.
| Decision Date | 08 June 2006 |
| Docket Number | No. CR. 05-119-T.,CR. 05-119-T. |
| Citation | 443 F.Supp.2d 248 |
| Parties | UNITED STATES of America v. Kenny BARNES |
| Court | U.S. District Court — District of Rhode Island |
Kenny Barnes has moved to suppress a large bag of marijuana seized from the trunk of his car and a small bag of cocaine base seized from him during a strip search. After an evidentiary hearing, this Court rendered a bench decision denying the motion with respect to the marijuana, but reserved decision with respect to the cocaine base pending the receipt of memoranda from counsel.
The issue presented is whether the officers conducting the search had sufficient justification to perform a visual body cavity search. Because this Court answers that question in the negative, the motion to suppress is granted with respect to the cocaine base.
On August 27, 2005, Barnes was sitting in the driver's seat of his motor vehicle which was illegally parked. Using the license plate number on that vehicle, George McMann, a Woonsocket police officer, checked the National Crime Information Center database on his laptop computer and discovered that Barnes's driver's license had been suspended.
Officer McMann approached Barnes's vehicle and was joined by Lieutenant John Picard and Officer Cote, both of the Woonsocket Police Department. McMann and Cote recognized Barnes as the victim of what appeared to be a drug-related shooting that had occurred about a month earlier. No evidence was presented regarding the kind of drug involved.
When the officers reached Barnes's vehicle, they detected a pungent odor of marijuana and observed bits of marijuana and pieces of a "blunt" in the passenger compartment. After arresting Barnes, they proceeded to search the vehicle and, in the trunk, discovered a large bag of marijuana, a smaller bag of marijuana, and a digital scale. After patting Barnes down for weapons and finding none, the officers took him to the Woonsocket police station.
At the police station, McMann and another officer, Michael Cahill, escorted Barnes to a private area. McMann instructed Barnes to remove all of his clothes. No contraband or weapons were found, but McMann, then, instructed Barnes to bend over and spread his buttocks so that the officers could determine whether he had anything concealed in his anal area. Barnes was reluctant to do so despite being assured that the officers intended to make only a very brief visual examination, but the officers made it clear that Barnes would have to comply.
While these events were taking place, Detective Daniel Turgeon learned that Barnes had been arrested and went to the room in which Barnes was being searched. Because Turgeon had information that Barnes was a drug dealer who was reputed to secrete drugs between his buttocks, Turgeon said to McMann, "You're going to strip search him, aren't you?" At that point, Barnes reached between his buttocks and pulled out a plastic bag containing the cocaine base in question.
Barnes has been charged, in state court, with possession of marijuana and possession of cocaine base with intent to deliver; but, in this case, he has been charged only with possession of cocaine base with intent to deliver.
The Fourth Amendment prohibits "unreasonable" searches and seizures. Warrantless searches generally are considered to be per se unreasonable but there are several well-established exceptions.
One exception to the warrant requirement permits officers to perform a full body search incident to a lawful arrest. Swain v. Spinney, 117 F.3d 1, 5-6 (1st Cir.1997) () (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973)). However, Swain v. Spinney, 117 F.3d at 6 (quoting United States v. Edwards, 415 U.S. 800, 808 n. 9, 94 S.Ct. 1234, 1239 n. 9, 39 L.Ed.2d 771 (1974)).
Determining whether a search is reasonable "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." Swain, 117 F.3d at 6 (citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). More specifically, with respect to a "strip and visual body cavity" search, a court "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 is conducted." Id. (citing Wolfish).
In this case, it cannot be disputed that the search of Barnes was conducted in a reasonable manner and at a suitable location. The uncontroverted evidence demonstrates that the officers acted very professionally and that Barnes was searched in a private area of the police station with only male officers present. Nor is there any suggestion that the officers had any improper motive for performing the search. Accordingly, the only issue is whether, under the circumstances, there was sufficient justification for the scope of the search to make it reasonable.
The extent to which the search of a person infringes on the person's privacy must be proportionate to the need for performing it. Accordingly, whether a body search is deemed reasonable depends, in part, on whether its "scope ... comport[s] with the justification for its inception". Burns v. Loranger, 907 F.2d 233, 236 (1st Cir.1990) (citing New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742-43, 83 L.Ed.2d 720 (1985)).
Since the extent to which privacy is infringed is a function of the type of search performed, courts have recognized a distinction between a full body search and a strip search. Swain, 117 F.3d at 6-7. Courts also have recognized distinctions between strip searches and various types of body cavity searches. Blackburn v Snow, 771 F.2d 556, 561 n. 3 (1st Cir.1985) ( ).
While a visual body cavity search may be performed incident to a strip search, it is not an inherent component of a strip search. See Roberts v. Rhode Island, 239 F.3d 107, 108 n. 1 (1st Cir.2001). Rather, it is an extension of a strip search that involves more of an intrusion into an individual's privacy. Wood v. Clemons, 89 F.3d 922, 928 (1st Cir.1996) (); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1271 (7th Cir.1983) (). Consequently, a body cavity search requires greater justification than a simple strip search. Swain, 117 F.3d at 6-7.
Generally, probable cause is not required to justify a strip and visual body cavity search performed pursuant to a lawful arrest. Swain, 117 F.3d at 6; Roberts, 239 F.3d at 110. What is required is "reasonable suspicion" that the "arrestee is concealing contraband or weapons" in the areas being searched. Swain, 117 F.3d at 6.
The extent to which the suspicion must be specific to a particular arrestee and the scope of the search justified by that suspicion turn on a number of factors such as the nature of the offense, the items that are the object of the search, and the likelihood these items may be concealed in the areas being searched. Thus, individualized suspicion is not necessary to justify a visual body cavity search of a prison inmate who has had contact with outside visitors because such contact may provide a means of smuggling contraband into the prison, Roberts, 239 F.3d at 111, but a blanket policy of performing body cavity searches of all prisoners without any individualized suspicion may not be justified, id. at 110; Swain at 7 (collecting cases). By the same token, a strip and visual body cavity search of an inmate may be justified "by the fact that [an] inmate was charged with a violent felony," Roberts, 239 F.3d at 112 (citing Dufrin v. Spreen, 712 F.2d 1084, 1087 (6th Cir.1983)), but when a person is arrested for a minor offense, officers must have "a reasonable suspicion that [the]...
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