COLORADO COURT OF APPEALS
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Court of Appeals No. 08CA1123
Adams County District Court No. 07CR480
Honorable Edward C. Moss, Judge
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The People of the State of Colorado,
Plaintiff-Appellee,
v.
Omar Anthony King,
Defendant-Appellant.
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CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE GRAHAM
Gabriel and Plank*, JJ., concur
Announced October 27, 2011
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John W. Suthers, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Nathaniel E. Deakins,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
I, § 5(3), and § 24-51-1105, C.R.S. 2011.
Defendant, Omar Anthony King, appeals the judgment of
conviction entered on jury verdicts finding him guilty of possession
of a schedule II controlled substance, contesting the method used to
execute a warrant, the strip search of his person, and the seizure of
incriminating evidence. We conclude that, because of their invasive
nature, strip searches require reasonable suspicion specific to the
search and are outside the scope of a warrant allowing a search
“upon person.” Additionally, we conclude that the no-knock
method used to execute the warrant was proper because there were
exigent circumstances necessitating an unannounced entry.
Accordingly, we remand the case to the trial court for a postsuppression hearing and for findings of fact as to whether the
officers had the necessary justification required for the strip search,
specifically, whether the officers had reasonable suspicion that
defendant concealed contraband on his body.
I. Background
Defendant was charged with one count of possession of a
schedule II controlled substance with intent to distribute following
an encounter with police at a motel in which defendant was found
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with cocaine. Following a jury trial, defendant was convicted of the
charged count.
II. Motion to Suppress
On appeal, defendant challenges the trial court’s denial of his
motion to suppress on two grounds: (1) that the trial court erred in
concluding that the strip search was within the scope of the search
warrant and (2) that the trial court erred in concluding that the
searching officers did not violate the knock and announce principle
of the Fourth Amendment. We disagree with the trial court’s
conclusion regarding the scope of the warrant and agree with its
conclusion regarding the knock and announce principle.
III. Facts
According to the evidence at the suppression hearing,
defendant was in his motel room when the Aurora Police
Department SWAT team, without knocking or announcing their
presence, forced open the door to execute a search warrant for
drugs. After a pat-down search of defendant revealed nothing, one
officer asked defendant to sit outside the motel room in handcuffs.
The officers searched the room and did not find any drugs, but
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found two crack pipes, a box of plastic sandwich baggies, and a
copper scrubber.
After the search of the room was complete, the officers brought
defendant back into the room to conduct a more thorough search of
his person. There were at least five officers present in the room,
including Officers Poppe and Ingui. Officer Poppe asked defendant
to remove his pants, which the officer testified was for the purpose
of searching for hidden pockets within the pants. As defendant was
lowering his pants, he notified Officer Poppe that he was not
wearing underwear, to which the officer replied, “[T]hat’s all right.”
At the suppression hearing, Officer Poppe, Officer Ingui, and
defendant testified to three different versions of the ensuing search.
Officer Poppe testified that upon removal of defendant’s pants, a
plastic baggie was visibly protruding from defendant’s buttocks,
which the officer then pulled free. Officer Ingui testified that the
baggie was partially protruding from defendant’s rectum and anus
and that Officer Poppe pulled the baggie from defendant’s anus.
Defendant testified that Officer Poppe instructed him to bend over,
at which point the officer physically inserted his finger into
defendant’s anus to remove the baggie.
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The baggie contained approximately twenty smaller baggies of
cocaine. Upon identification of the cocaine, the officers placed
defendant under arrest.
The trial court concluded that the search of defendant’s
person was within the scope of the warrant. However, the court did
not address the issue of whether the search constituted a strip
search. Further, the trial court concluded that the no-knock entry
was proper because there were exigent circumstances necessitating
an unannounced entry.
IV. Scope of the Warrant
Initially, defendant contends that the strip search was outside
the scope of the warrant because the officers did not have a specific
justification for the more intrusive search. Whether a strip search
is within the scope of a warrant allowing for the search “upon
person” is a matter of first impression for this court. We agree with
defendant and conclude that strip searches require reasonable
suspicion that contraband has been concealed on the body, and,
therefore, are outside the scope of such a warrant.
A. Standard of Review
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We review a trial court’s ruling on a motion to suppress
evidence as a mixed question of law and fact. People v. Bradshaw,
156 P.3d 452, 455-56 (Colo. 2007). We defer to the trial court’s
factual findings, so long as they are supported by the record, but
review its legal conclusions de novo. Id.; People v. Arroya, 988 P.2d
1124, 1129 (Colo. 1999).
B. Analysis
The United States and Colorado Constitutions protect an
individual from unreasonable searches and seizures. U.S. Const.
amends. IV, XIV; Colo. Const. art. II, § 7. In general, to comply with
the reasonableness requirement, the federal and state constitutions
require a police officer to obtain a warrant before conducting a
search. See U.S. Const. amends. IV, XIV; Colo. Const. art. II, § 7;
Arizona v. Gant, 556 U.S. 332, ___, 129 S.Ct. 1710, 1716 (2009).
However, a search that is initially justified because it is made
pursuant to a warrant may nevertheless violate the constitutions if
it exceeds the scope of the authority provided in the warrant.
Horton v. California, 496 U.S. 128, 140 (1990).
A search of a person may range from a pat-down to a full
search of the person to a more intrusive strip search. Strip
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searches are different in nature, quality, and intrusiveness from full
searches of a person’s body. Safford Unified School Dist. No. 1 v.
Redding, ___ U.S. ___, ___, 129 S.Ct. 2633, 2641 (2009) (“both
subjective and reasonable societal expectations of personal privacy
support the treatment of such a search as categorically distinct,
requiring distinct elements of justification on the part of school
authorities for going beyond a search of outer clothing and
belongings”); People v. Williams, 192 Colo. 249, 257, 557 P.2d 399,
406 (1976) (“‘The interests in human dignity and privacy which the
Fourth Amendment protects forbid any such intrusions (beneath
the body’s surface) on the mere chance that desired evidence might
be obtained.’” (quoting Schmerber v. California, 384 U.S. 757, 769
(1966))); Washington v. Whitaker, 451 S.E.2d 894, 899 (S.C. 1994)
(“Strip searches are ‘demeaning, dehumanizing, undignified,
humiliating, terrifying, unpleasant, embarrassing, repulsive and
signifying degradation [and] submission.’” (quoting Mary Beth G. v.
City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983))).
Colorado criminal statutes define a strip search as “having an
arrested person remove or arrange some or all of his or her clothing
so as to permit a visual inspection of the genitals, buttocks, anus,
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or female breasts of such person.” § 16-3-405(2), C.R.S. 2011; see
Safford, ___ U.S. ___, ___, 129 S.Ct. at 2641 (school administrator’s
order to student to remove her clothes down to underwear and “pull
out” her bra and elastic band on underwear can fairly be described
as a “strip search”); Kidd v. Commonwealth, 565 S.E.2d 337, 343
(Va. Ct. App. 2002) (a strip search occurred when an officer pulled
defendant’s underwear and sweatpants away from his body allowing
visual inspection of his genitals); Hughes v. Commonwealth, 524
S.E.2d 155, 160-61 (Va. Ct. App. 2000) (having defendant disrobe
and allowing officers to look into his underwear for drugs was a
strip search of his person).
Here, we conclude on the basis of the record before us that the
officers performed a strip search on defendant.1 While Officer
Poppe testified that he had defendant take off his pants to search
for hidden pockets in the clothing, it became a strip search when
defendant notified him that he was not wearing underwear. At that
We decline to address the issue of whether the search evolved into
a body cavity search when the baggie was removed from defendant’s
buttocks. Since there was testimony to the effect that at least one
officer saw the baggie in plain view, the required justification for the
more invasive search was present, and therefore, the distinction is
not dispositive for the issue at hand.
1
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point, the officer continued to have defendant remove his pants,
which then permitted Officer Poppe and at least four other officers
to visually inspect defendant’s genitals and buttocks. See § 16-3405(2).
Where a strip search is to be performed, a warrant or probable
cause that the person possesses contraband is not enough; there
must be “specific facts to support a reasonable suspicion that a
particular person has secreted contraband beneath his or her
clothes or in a body cavity.” People v. Mothersell, 926 N.E.2d 1219,
1226 (N.Y. 2010); cf. Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir.
2008) (strip search of misdemeanor arrestee requires individualized
reasonable suspicion that arrestee is concealing weapons or other
contraband; mere presence of marijuana debris in arrestee’s truck
did not supply reasonable suspicion she had drugs on her person);
Evans v. Stephens, 407 F.3d 1272, 1279-80 (11th Cir. 2005)
(investigative strip searches conducted post arrest for drugs without
at least reasonable suspicion — court leaves open question whether
actual standard may be higher — to believe drugs are present are
unconstitutional); Savard v. Rhode Island, 338 F.3d 23, 30 (1st Cir.
2003) (en banc) (right of persons charged with nonviolent, nondrug8
related minor offenses to be free from strip searches absent
particularized suspicion was clearly established by year 2000);
Foote v. Spiegel, 118 F.3d 1416, 1425 (10th Cir. 1997) (“not clearly
unconstitutional to strip search persons arrested for possession of
drugs but not placed in the general inmate population, at least if
there is reasonable suspicion they have additional drugs or
weapons on their persons”); Masters v. Crouch, 872 F.2d 1248,
1255 (6th Cir. 1989) (authorities may not strip search persons
arrested for traffic violations and nonviolent minor offenses solely
because such persons ultimately will intermingle with the general
population at a jail when no circumstances support a reasonable
belief that the detainee will carry weapons or other contraband into
the jail); United States v. Holtz, 479 F.2d 89, 90 (9th Cir. 1973)
(requiring objective, articulable facts and real suspicion directed
specifically at the person to be searched to justify a strip search);
Hughes, 524 S.E.2d at 161 (a strip search is “peculiarly intrusive”
and requires “special justification”).
We find persuasive the holdings of the Virginia and New York
courts, and of the First, Second, Fifth, Ninth, Tenth, and Eleventh
Circuits and conclude as a matter of law that strip searches are
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outside the scope of a warrant for a search “upon person.” Strip
searches are distinct from general searches in that they are more
invasive and subject the person being searched to potential
humiliation and degradation. For that reason, strip searches must
be authorized by a warrant allowing strip searches that includes an
articulable basis for the more invasive search, or by officers having
particularized reasonable suspicion that the defendant has hidden
contraband on his body.
Reasonable suspicion in this context must be more than a
hunch. People v. Haley, 41 P.3d 666, 674 (Colo. 2001). “Courts
must consider the facts and circumstances known to the police
officer at the time of the encounter in order to determine whether
reasonable suspicion exists; this is an objective standard of
reasonableness based on the circumstances known to the police at
the time.” Id. The officer must have “‘specific and articulable facts
which, when taken together with the reasonable inferences from
these facts, give rise to a reasonable suspicion.’” Id. (quoting People
v. Boylan, 854 P.2d 807, 812 (Colo. 1993)).
Here, the trial court failed to make any evidentiary findings
regarding the justification for the strip search, specifically, whether
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the officers had the requisite reasonable suspicion that defendant
was hiding drugs on his body. Accordingly, the trial court must
consider this issue on remand. In doing so, the trial court should
consider all the facts and circumstances of the search, including
the items found and the results of the pat-down search, in
determining whether the officers had reasonable suspicion. The
trial court may, but is not required to take additional evidence.
V. Knock and Announce
Additionally, defendant contends that the officers violated the
knock and announce principle of the Fourth Amendment. We agree
with the trial court and conclude that the no-knock entry was
proper because there were exigent circumstances necessitating an
unannounced entry.
A. Standard of Review
We apply the same standard of review as above, as we review
the trial court’s ruling on a motion to suppress evidence as a mixed
question of law and fact. Bradshaw, 156 P.3d at 455-56. We defer
to the trial court’s factual findings, so long as they are supported by
the record, but review its legal conclusions de novo. Id.; Arroya,
988 P.2d at 1129.
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B. Analysis
Generally, the Fourth Amendment requires law enforcement
officials to knock and announce their presence when executing a
search warrant unless one of a number of exceptions apply. People
v. Lujan, 174 Colo. 554, 558, 484 P.2d 1238, 1240-41 (1971).
Those exceptions are as follows:
(1) the warrant expressly authorizes forced
entry without such a prior announcement, or
(2) the circumstances known to such officer or
person at the time of forced entry, but, in the
case of the execution of a warrant, unknown to
the applicant when applying for such warrant,
give him probable cause to believe that -- (a)
such notice is likely to result in the evidence
subject to seizure being easily and quickly
destroyed or disposed of, which is true in every
case involving a search of narcotics, (b) such
notice is likely to endanger the life or safety of
the officer or other person, (c) such notice is
likely to enable the party to be arrested to
escape, or (d) such notice would be a useless
gesture.
Id. at 559, 484 P.2d at 1241. Law enforcement officials must have
an objectively reasonable suspicion that one of these exceptions
applies, and the showing required for a no-knock authorization is
not high. Richards v. Wisconsin, 520 U.S. 385, 394 (1997).
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Consistent with these constitutional principles, Colorado Rule
of Criminal Procedure 41(d)(5)(V) provides:
The officers executing a search warrant shall
first announce their identity, purpose, and
authority, and if they are not admitted, may
make a forcible entry into the place to be
searched; however, the officers may make
forcible entry without such prior
announcement if the warrant expressly
authorizes them to do so or if the particular
facts and circumstances known to them at the
time the warrant is to be executed adequately
justify dispensing with this requirement.
Crim. P. 41(d)(5)(V).
Here, we conclude on the basis of the record before us that the
officers had a reasonable suspicion that knocking and announcing
their presence would likely result in the drugs subject to seizure
being destroyed. Defendant had a history of prior drug dealings
and the search took place at a motel where there was a bathroom in
close proximity. As such, the officers properly forced entry into the
motel room without first knocking and announcing their presence.2
Additionally, we note that suppression of evidence is no longer a
remedy in a criminal case for violations of the knock and announce
principle. Hudson v. Michigan, 547 U.S. 586, 599 (2006); People v.
Butler, 251 P.3d 519, 521-22 (Colo. App. 2010). However,
defendants, in proper circumstances, might have a civil remedy in
the form of 42 U.S.C. § 1983. Id. at 597.
2
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VI. Conclusion
In conclusion, we must remand the case for the trial court to
reconsider its findings and conclusion. People v. Cruse, 58 P.3d
1114, 1118 (Colo. App. 2002) (“Where suppression claim involves a
mixed question of law and fact that cannot be resolved without
additional factual findings, the appellate court should remand for
further proceedings.”).
Accordingly, the case is remanded to the trial court for a posttrial suppression hearing at which the trial court has the discretion
to take additional evidence or to rely upon the existing record. If
the court determines that the officers did not have the required
reasonable suspicion to conduct the strip search, then the
conviction shall be reversed and the court shall conduct a new trial
without the illegally seized evidence, subject to the People’s right to
appeal. If the court determines that the officers had the required
reasonable suspicion to conduct the strip search, then the court
must further determine whether the strip search was conducted in
a reasonable manner. If the court finds that the manner was
unreasonable, then the conviction shall be reversed and the court
shall conduct a new trial without the illegally seized evidence,
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subject to the People’s right to appeal. If the court finds that the
manner was reasonable, then the judgment of conviction shall
stand affirmed, subject to defendant’s right to appeal.
JUDGE GABRIEL and JUDGE PLANK concur.
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