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Standard for Strip Searches Incident to Arrests in Maryland

I recently filed a multi-million dollar case against the Baltimore City Police Department involving an illegal and unwarranted body cavity search. The case details are best reported in the Baltimore Sun. Having received many inquiries since than on the law in this area, I will explain the nuts and bolts of the legality of strip searches in Maryland.

The key Maryland cases regarding the reasonableness of a strip search are State v. Nieves, 383 Md. 573 (Md. 2004) and Paulino v. State, 359 Md. 341 (Md. 2007). Both cases reiterate that it is well established both that the State has the burden of proving the legality of a warrantless search and that warrantless searches are per se unreasonable under the Fourth Amendment absent some recognized exception. Although a search incident to arrest is a recognized exception to the warrant requirement, a strip search incident to arrest is held to a much higher standard.

The Nieves court held that the reasonable, articulable suspicion standard applies in the strip search incident to arrest context. Nieves, 383 Md. at 596. While strip searches for felony arrests may always be justifiable, strip searches following arrests for minor offenses are generally ‘found wanting’, unless the officer had information that would have led to a reasonable suspicion that the person was carrying weapons or contraband at the time of the arrest. Id. at 592. Nieves was arrested for traffic offenses that included driving on a suspended license, negligent driving, failure to control speed, and giving false accident information. The court found that a strip search following Nieves’ arrest was not reasonable because the nature of the traffic violations for which he was arrested failed to create a suspicion that he was carrying weapons or contraband. Id. at 596. The justification for the search of Nieves based on his prior drug offenses and the fact that he was driving a car whose owner was associated with drugs was also found lacking. The court held that allowing a strip search based on prior drug arrests would amount to allowing a search based on a person’s status, rather than an individualized assessment of the circumstances. Id. at 597.

In Paulino, the defendant was strip searched in public at the scene of his arrest. The police had reasonable suspicion to believe that Paulino possessed drugs and was hiding them in his buttocks, having been given that information by a confidential informant. 399 Md.at 345. Although there may have been suspicion for Paulino’s search, the Court held that “the necessity for such an invasive search must turn upon the exigency of the circumstances and reasonableness.” Paulino, Id. at 352. In determining reasonableness, the court balances the need for a strip search with the invasion of personal rights that in entails, considering the scope of the intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it was conducted. Id. at 356. The issue identified by the court in Paulino was not whether the police had a right to conduct the search, but whether considering the invasive nature of the search, an exigency existed to make it appropriate under the circumstances. Id. at 357. The state was unable to prove the existence of any exigent circumstances that would justify a public strip search. Id. at 360. The need for exigent circumstances may be lessened in Mr. Watkins’ case because his search, unlike Paulino’s, was conducted in a relatively reasonable environment.

A Maryland strip search was found to be valid in Fontaine v. State, 135 Md.App. 471, 762 A.2d 1027 (Md.App. 2000). The court held that the reasonable suspicion required to justify a strip search existed when police said that, during the stop, Fontaine was seen fidgeting and attempting to put something down his pants and that the police officer had received information as to where Fontaine usually concealed his drugs. Id. at The courts reasoning, however, was not as extensive as that of Nieves and Paulino, and did not explicitly mention exigency of the circumstances. Fontaine’s conviction was overturned for lack of jurisdiction because he was arrested in Delaware and brought into Maryland where the drugs were recovered.

For more information, or a free consultation, please contact the Maryland criminal lawyers of Silverman, Thompson, Slutkin & White, LLC.