Paulino v. State

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John August Paulino v. State of Maryland No. 75, September Term, 2006 HEADNOTE: C O N S T I T UT I O N A L L A W F O U R T H A M E N D M E N T S EA R C H SEIZURE REASONABLENESS PLACE OF SEARCH EXIGENCY AND To determine the reasonableness of a search unde r the Fourth Am endment, the Co urt 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. The police officers search of an arres tee is unreasonable w hen the officers conduct a highly intrusive s earch in the parking lot of a public business in the presence of others and there were no exigent circumstances requiring an immediate search. In the Circu it Court for B altimore C ounty Civil No. 00 CR 3812 IN THE COURT OF A PPEALS OF MARYLAND No. 75 September Term, 2006 __________________________________ JOHN AUGUST PAULINO v. STATE OF MARYLAND __________________________________ Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner, A lan M. (R etired, Spec ially Assigned), JJ. __________________________________ Opinio n by Gre ene, J. Cathell, Ba ttaglia and W ilner, JJ., Dissen t. __________________________________ Filed: June 4, 2007 This case requires us to consider whether a search conducted incident to an arrest is reasonab le under the Fourth Amendment in light of the manner and place in which the search was conducted at a time when there w ere no exigen t circumstan ces justifying the immedia te search. We conclude that, under the circumstances of this case, the search of petitioner was unreasonable. Accordingly, we shall reverse the judgment of the Court of Special Appeals. I. Factual and Procedural Background On September 29, 2000 Detective Elliot Latchaw, and other members o f the Baltimore County Police Department received information from a confidential informant who told them that later that evening petitioner, John August Paulino ( Paulino ), would be in the 1100 block of North Point Road, Dundalk, Maryland, and would be in possession of a quantity of controlled dangerous substance. The informant also advised the police tha t Paulino typically hides the controlled dangerous substance in the area of his buttocks. Acting on the information provided by the informant, the police established surveillance in the 1100 block of North Po int Road. A t the suppre ssion hearin g, Detectiv e Latchaw described the surveillance in greater de tail: [Detective Latchaw]: He actu ally we had surveillance established on the parking lot, and he was actually observed on the parking lot, and he was actually observed by myself as they pulled into the entrance to the car wash. He was seated in the passe nger seat. I saw him clear as day, and I radioed real quick to everybody, this is him, he s in the passenger seat. And at that time, they actually pulled [into one of] the bays of the car wash. There s like maybe six or eight bays all away across in the line. Wh en they pulled in, they were blocked in, and he w as remov ed from th e vehicle. A nd I don t k now ex actly how he was taken out of the vehicle or if he got out on his own, I don t know, because at that point, I was back a little ways coming up. There was a there was a team to do all that. * * * * There w as also testimo ny describing the location o f the search : [Defen se Coun sel]: Is that area o f Dund alk fairly busy at that tim e of night? [Detectiv e Latchaw ]: Not at all. Its actually the car wash is actually back you pull into a parking lot, and you ve got to go past an entranc e to a storage faci lity, like those little m ini storage bu ildings, and actually go past a like an auto repair center. And then at the very end of this little parking lot, it s kind of like a zigzaggy entrance. Driveway kind of turns around to the left and comes back to the right, and the very back is the car wash all by itself. It s real secluded back th ere a ctua lly. [Defense Counsel]: Were there any other people back there at that time around eleven-fifteen that evening other than yourself and Mr. Paulino? [Detective Latcha w]: No, not that I not that I can remem ber. [Defense Counsel: Yourself [Detectiv e Latchaw ]: Well, other u nits of Baltim ore Cou nty Police. Righ t. [Defen se Coun sel]: No civ ilian personn el? [Detective Latchaw]: remember. No. Nobody was washing their cars, that I can [Defense Counsel]: Is that a lighted area, dark area? [Detectiv e Latchaw ]: Well lit. [Defen se Coun sel]: Is that viewable by people in the area walking by or not reall y? [Detective Latchaw ]: No. No, it s way back. It s back off the road. It s real secluded. * * * * -2- The testim ony regarding the police o fficer s sub sequent ac tions is less clear : [Defense Counse l]: And you d id conduc t a search the n, is that correct? How did you come to find the drugs? [Detective Latchaw]: Well, when we when M r. Paulino was removed from the vehicle and laid on the groun d, his pants w ere already pre tty much down around his below his butt, because I guess that s the fad, these guys like wearing their pants do wn real low , so it was just a matter o f lifting up h is shorts, and - - and between his butt cheeks the drugs were I believe one of the detectives ac tually put on a pa ir of gloves and just spre ad his cheeks apart a little bit and it was right there. [Defense Counse l]: So they wer e not visible b efore you ac tually spread his cheeks ap art, is that correct? [Detective Latchaw]: I don t think they were. * * * * Paulino offers a slightly different version of the facts concerning the search: [Defense Counsel]: Where was the search conducted? [Mr. Paulino]: Inside a car wash [Defense Counsel]: In the presence of other people or by yourself? [Mr. Paulino]: Other people was around. It was about 12 other officers. [Defense Counsel]: At that time, your your anal cavi ty was searched. Is that correct? [Mr. Paulino]: They had searched me in my pockets, didn t find nothing, and even tuall y, they came to the subject where in my report, it states that the officer said, Mr. Paulino, why is your butt cheeks squeezed? And in further response, I said nothing. He said it again, and another officers come behind with gloves and pulled my pants down and went in my ass. Well, my cheeks. Sorry ab out that. -3- Paulino was charged with possession with intent to distribute cocaine and possession of cocaine. Subsequent to his arrest, Paulino filed a motion to suppress, which, following a hearing on the motion, was denied. Proceeding on an agreed statement of facts, the trial judge found Paulino guilty of possession with intent to distribute, and sentenced him as a subsequent offender, to a mandatory ten-year sentence. On September 12, 2003, Paulino filed a petition for post conviction relief. The post conviction court granted Paulino the right to file a belated appeal. Paulino, in turn, filed a notice of appea l. Thereafte r, in an unreported opinion, the Court of Special Appeals affirmed the judgment of the Circ uit Court. O n Augu st 21, 2006 , Paulino filed a petition for writ of certiorari, which we granted.1 John August Paulino v. State of Md., 395 Md. 420, 910 A.2d 1061 (2006). II. Standard of Review We are asked in this appeal to review the Circuit Court s denial of Paulino s motion to suppress. Our review of a circuit court s denial of a motion to suppress evidence, ordinarily, is limited to the ev idence presen ted at the suppre ssion h earing. See Ferris v. 1 Petitioner presents the following question for review: Did the search of Petitioner, which involved an officer putting on plastic gloves and spreading the cheek s of Petitione r s buttocks to reveal drugs which were not visible befo re that time, violate the Fourth Amendment, when the search was con ducted in the parking lot of a car wash in the pre sence of individuals other than the search ing officer? -4- State, 355 Md. 356, 368, 73 5 A.2d 491, 49 7 (199 9). Thus, we refrain from engaging in de novo fact-finding and looking at the trial record for supplemental information. Carter v. State, 367 Md. 447, 457, 788 A.2d 646, 651 (2002). We view the evidence presented at the hearing on Paulino s motion to suppress, and all reasonable inferences drawn from that evidence, in the light most favora ble to the State. See Carter, 367 Md. at 457, 788 A.2d at 651; Scott v. State , 366 M d. 121, 143 , 782 A.2d 862, 875 (2001); Riddick v. State, 319 Md. 180, 183, 571 A .2d 1239, 1240-1 241 (1990). It is well established that the State has the burden of proving the legality of a warrantless search and seizure. See Sifrit v. State, 383 Md. 77, 114, 857 A.2d 65, 86 (2004) ( [t]he ultimate burden of proving that evidence seized without a warrant should not be suppressed falls on the State (quoting State v. Green, 375 Md. 595, 826 A.2d 486 (2003))); State v. Bell, 334 Md. 178, 191, 638 A.2d 107, 114 (1994)(noting that warrantless searches are presumptively unreasonable and that the burden of proving the applicability of an exception to the warra nt requirem ent rests on the State ); Stackhouse v. State, 298 Md. 203, 217, 468 A.2d 333, 341 (1983) (emphasizing that the burden of establishing exigent circumstances is on the State and that the facts and circumstances upon which the question of reasonableness depends must be viewed in light of established Fourth Amendment principles ). See also Coolidge v. New Ham pshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2 d 564, 5 76 (1971) (holding that there must be a showing by those who seek exemption [from the requirements of the Fourth Amendment] that the exigencies of the -5- situation made that course imperative. The burden is on those seeking the exemption to show the nee d for it. ). As this Court n oted in State v. Nieves, 383 Md. 573 , 581-82, 861 A .2d 62, 67 (2004), [a]lthough we extend great deference to the hearing judge s findings of fact and will not disturb them unless clearly erroneous, we review, independently, the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law and, accord ingly, sho uld be s uppres sed. III. Discussion A. Fourth Amendme nt and Search Incident to Arrest In support of his challenge to the validity of the search, Paulino relies on the Fo urth Amen dment to th e United S tates Cons titution. The F ourth Am endmen t provides: The right of the people to be secure in their persons, houses, papers, and effects, against unr easonab le searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons or thing s to be se ized. U.S. Const. amend. IV. The Fourth Amendment is made applicable to Maryland through the Fourteen th Amendment, and prohibits searches that are unreasonable under the circum stances . Nieves, 383 Md. at 583, 861 A.2d at 68. In Nieves, we noted that it is well established that warrantless searches are per se unreason able under the Fourth Amendment absent some recognized exception. 383 Md. at 583, 861 A.2d at 68. See also Illinois v. -6- Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 2799, 111 L.Ed.2d. 148, 156-57 (1990). The Supreme Court of the United States has, howev er, recogniz ed the auth ority of the police to search an arres tee incid ent to a la wful a rrest, see United States v. Robinson, 414 U.S. 218, 224-26, 94 S.Ct. 467, 471, 38 L.Ed.2d 427, 434 (1973); as have we, State v. Evans, 352 Md. 496, 516, 723 A.2d 423, 432-33 cert. denied, 528 U.S. 833, 120 S.Ct. 310, 145 L.Ed.2d. 77 (1999). In Evans, 352 Md. at 515, 723 A.2d at 432, we held that to execute a lawful arrest a police officer must have probable cause to believe the suspect has committed a felony and must either physically restrain the suspect or otherwise subject the suspect to his or her custody and control. Because Paulino does not c hallenge th e validity of his arr est, the only issue before the Court is the scope of the search under the circumstances.2 Police are a llowed to c onduct a s earch incid ent to an arrest in order to remove any weapons that the [arres tee] might se ek to use in order to resist arre st or eff ect his es cape . . . [or] to search for and seize any e vidence o n the arrestee s person in order to pre vent its concealment or destruction. Chimel v. Califo rnia, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694. In United States v. Robinson, 414 U.S . 218, 94 S .Ct. 467, 38 L.Ed.2d 2 It remains un clear whe ther Paulino s pants w ere below his waist as a result of his removal from the v ehicle in the course of the arrest, or, wh ether Paulino intentionally wore his pants below his waist as a part of a f ad. Even if Paulino in tentionally wo re his pants below his waist and his underg arments were exposed , we conclude that b ecause Paulino s pants were belo w his waist he reta ined, neve rtheless, a Fo urth Am endmen t right to privacy in his pers on. See gene rally United States v. Dorlouis , 107 F.3d 248 (4 th Cir. 1997) ; Bell v. Wolfish, 441 U.S. 520, 99 S .Ct. 1861, 60 L.Ed.2d 447 (1979). -7- 427 (1973), the Supreme Court explained the scope of a search incident to an arrest in light of its decision in Chimel. The issue before the Court in Robinson was whethe r after a custodial arrest, a police officer could conduct a full search of the arrestee or, in the alternative, if the scope of a search incident to arrest is limited to a frisk of the outer clothing. The Court held that a s earch of a n arrestee s w aist, pants, poc kets, as we ll as the conten ts of the arrestee s p ockets, sup ports the need to disarm the suspect in o rder to take h im into custody as well as the need to preserve the evidence on his person for later use at trial and is therefo re perm issible u nder F ourth A mend ment la w. Robinson, 414 U.S. at 234, 94 S .Ct. at 476, 3 8 L.Ed .2d at 44 0. The rationale of Chime l and Robinson entitles the po lice, under the F ourth Amen dment, to conduct a full search incident to arrest, without a warrant, so long as the search does n ot invo lve a bo dily intrusio n. See Schm erber v. Ca lifornia, 384 U.S. 757, 769, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908, 91 9 (196 6). In Schmerber, the Court held that the Fourth Amen dment pro tects an arreste e s privacy intere sts in his person and prohibits bo dily intrusions that are not justified in the circumstances, or which are made in an improper mann er. 384 U.S. at 768, 86 S.Ct. at 1834, 16 L.Ed.2d at 918. We note, however, as we did in Nieves, supra, that the Supreme Court has not [ spec ifica lly] addressed the validity of strip searches incident to an arrest. 383 Md. a t 585, 86 1 A.2d at 69. See Illinois v. Lafayette, 462 U .S. 640 , 103 S .Ct. 260 5, 77 L .Ed.2d 65 (19 83). Notwithstanding the Supreme Court s failure to address the validity of strip searches -8- incident to an arrest, we acknowledged in Stackhouse, supra, that the rule developed in Chimel was based on an exigency rationale, that is, the safety of the officer and the preservation of evidence[,] and that [t]he justification, however, remains a narrow one. Stackhouse v. State, 298 Md. at 211-212, 468 A.2d at 338. In addition, we explained that a warrantless search cannot be justified on the basis that the officers had probable cause, because that is the very determination for which the constitution requires a warrant hearing. Stackhouse, 298 M d. at 219 , 468 A .2d at 34 2. Here the police had reason to believe that Paulino carried drugs on his person and under his clothing, but that fact was not the justification for the search. Paulino s arrest served as justification for the search incident and the underlying pr obable cause for his arrest was never challenged. The actual challenge, however, is to the search of Paulino. H e contends that the search constituted a strip search. By definition a strip search involves a more invasive search of the person as opposed to a routine custodial search. Therefore, the necessity for such an invasive search must turn upon the exigency of the circumstances and reasonableness. Without the constitutional safeguards of exigent circumstances and reasonableness, every search in cident cou ld result in a strip search. As we have said, [t]he meaning of exigent circumstances is that the police are confronted with an emergency-circumstances so immin ent that they present an urgent and compelling need for police action. Stackhouse, 298 Md. at 219-220, 468 A.2d at 342. Therefore, we must determine wheth er the cir cumsta nces of the sear ch in the presen t case rise to that lev el. -9- B. Strip Searches and Body Cavity Searches Paulino contends that, at a minimum, the search conducted here was a strip search. In Paulino s view, the search was more intrusive than a mere strip search because the cheeks of his butto cks were manipula ted by the police . Paulino ass erts that b y spreading apart the cheeks of [his] buttocks the search was beyond the realm of a strip search and, instead, was a visual body cavity search. In response, the State contends that the search of Paulino occurred without removing any of Paulino s clothing and that the search arguably did not . . . cons titute a strip searc h. Further , according to the State, the police action . . . did not constitute a visual or manual bo dy cavity search because, to retrieve the contraband, the police o fficers only lifted up Paulino s shorts. For reasons discussed, infra, we conclude that the search of Paulino wa s both a strip se arch and a visual bod y cavity search . There exist three separate categories of searches. As the United States Court of Appea ls for the First Circuit noted in Blackburn v. Snow, 771 F.2d 556 (1 st Cir. 198 5), n. 3.: A strip search, though an umbrella term, generally refers to an inspection of a naked individual, withou t any scrut iny of the subjec t s body c avities. A visual body cavity searc h extend s to a visual ins pection of the anal and genital areas. A manual body cavity search includes some degree of touching or probing of body cavities. -10- See Nieves, 383 Md. at 586, 861 A.2d at 703 (acknowledging that a strip search is any search of an individual requiring the removal or rearrang ement of some or a ll clothing to permit the visual inspection of the skin surfaces of the genital areas, breasts, and/or buttocks. The Court noted that [t]here is a distinction between a strip search and other types of searches, such as body cavity searches, which could involve visually inspecting the body cavities or physically probing th e body cavities ); McG ee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (holding that when the arrestee was forced to drop his pants, bend over, and spread his buttocks and the crack cocaine recovered was in plain view and was lodged between the arrestee s buttocks, the search was a visual body cavity search); Hughes v. Commonwealth of Va., 524 S.E.2 d 155, 15 9 (Va. C t. App. 2000) (holding that the arrestee was subjected to all three types of searches when th e arrestee w as disrobed , directed to bend over and expose his anus, cough in order to expand the officer s view of the anus, and when a plastic bag was subsequently removed from the arre stee s an al cavity). See also Amaechi v. West, 237 F.3d 356, 363-64 (4 th Cir. 2001) ; United Sta tes v. Dorlo uis, 107 F.3d 248, 256 3 In accord, one attorney commentator, William J. Simonitsch, notes that there are three distinct categories of body cav ity searches: strip sea rches, visua l body cavity searches and man ual body cavity searches. Mr. Simonitsch defines a strip search as involving the removal of clothing for inspection of the under clothes and/or body and includ[ing] only those searches that do not involve a visual or manual inspection of the genitals or anus ; visual body cavity search include[s] only searches where there is a visual inspection of a person s genitals or anus, but no physical contact or intrusion ; manual body cavity search includes not only those [searches] performed by insertion of, or manipulation with, the fingers, but also endosco pic exam inations and the use of gynecol ogical d evices. William J. Simo nitsch, Visual Bo dy Cavity Searche s Incident to A rrest: Validity Under the Fourth Amendment, 54 U. M iami L. R ev. 665 , 667-6 8 (200 0). -11- (4 th Cir. 1997) ; United States v. Vance, 62 F.3d 1152, 11 56 (9 th Cir. 1995). Based upon the record before us, we conclude th at the police officers search of Paulino was b oth a strip search and a v isual bo dy cavity sea rch. It appears that the police officers attempted to manipula te Paulino s clothing in such a m anner that h is buttocks c ould be more readily viewed. In this instance, the police did not only lift up Paulino s shorts, but also the officers manipulated his buttocks to allow for a better view of his anal c avity. If, in the case sub judice, the drugs were protruding from between the cheeks of Paulino s buttocks and visible without spreading his buttocks cheeks, the classification of the type of search would be a close one4 . In this case, however, the drugs were not visible until after the cheeks of Paulino s buttocks were spread apart. Therefore, when the police officers spread the cheeks of Paulino s buttocks to inspect his anal cavity and, upon doing so, observe d a plastic bag co ntaining drugs, th eir cond uct am ounted to a vis ual bod y cavity sear ch. 5 C. Reasonableness 4 The dissent seeks to adopt a definition of strip search that is unduly restrictive. The application of that definition underestimates the degree to which the search invaded Paulino s personal privacy. Moreover, the cases cited by the dissent in support of its contention that the search of Paulino was a reach-in search are distinguisha ble becau se they do no t relate to the m anipula tion of th e intima te parts o f a susp ect s pe rson. 5 As the Texas C ourt of C riminal Ap peals noted in McG ee v. State, 105 S.W.3d 609, 616 (Tex. Crim. App. 2003), [v]isual body-cavity searches are among the most intrusive of searches. Its intrusiveness cannot be ov erstated. ; United States v. Lilly, 576 F.2d 1240, 1246 (5 th Cir.1978) ; Patterson v. State, 598 S.W .2d 265, 26 9 (Tex.C rim.App .1980); Kennedy v. Los Angeles P olice Dep t, 901 F.2d 702, 71 1 (9 th Cir.1989).) -12- Notwithstanding the search incident to arrest exception to the warrant re quiremen t, the search con ducted by the police mu st be reason able in light of the exigen cies of the momen t. See, U.S. Const. am end. IV.; Nieves, 383 Md. at 583, 861 A.2d at 68. The fact that the police can lawfully initiate the search of a suspect does not then giv e the police c arte blanche authority to cond uct an u nreaso nable s earch. See Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (noting that [t]he Fou rth Ame ndment p rohibits only unreasonable searches ). The United States Supreme Court s decision in Bell sets forth the appropriate test for determining the reasonableness of a search. Judge Battaglia, writing for this Court in Nieves, supra, said that: In Bell [], the Sup reme Co urt addresse d the perm issible scope of searches incident to arrest that occurred in association with pretrial detention. [441 U.S.] at 523, 99 S.Ct. at 1866, 60 L.Ed.2d at 458. Several defendants brought a class action suit challenging detention policies requiring pre-trial detainees to be subjected to a visual body cavity search every time the detainee had contact with in dividu als outsi de of th e institutio n. Id. The Court assessed the reasonableness of these searches by stating: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of person al rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducte d, the justification for initiating it, and the place in which it is conducted. 383 M d. at 588 , 861 A .2d at 71 . In the present case, the Court of Special Appeals concluded that three of the four factors requ ired to be bala nced by Bell . . . all weigh in favor of the State. The appearance that three out of four facto rs weigh in favor of the State, how ever, does not, in and of itself, -13- make a search reasonable. In our view, Bell requires a fle xible appro ach, one th at takes into account the relativ e streng th of ea ch fac tor. Furth er, Bell requires that a reviewing court, when assessing the reasonableness of a search under the Fourth Amendment, balance the need for a partic ular sea rch aga inst the in vasion of pers onal rig hts that th e search entails. Bell, 441 U.S. at 559, 99 S.Ct. at 1884, 60 L.Ed.2d at 48 1. In that regard, w e conclud e that, on balance, the location of the search and the lack of exigency made the search of Paulino unreas onable . Acc ordingly, we turn first to the scope of the search in the instant case. Paulino contends that the scope of the intrusion involved in the [search of his person ] was great[,] noting that he had to suffer th e indignity of h aving an o fficer view his naked body as w ell as having to endure the hu miliation of hav ing an o fficer p hysically ma nipulate his butto cks. The State makes no specific argument regarding the scope of the search, other than that the intrusion into Paulino s buttocks cheeks area was reasonable. The Court of Special Appea ls held that the scope of the search w as reasona ble becau se the police only had to lift up [Paulino s] shorts briefly and that the entire search was as brief as possible. Even if we were to assume that the amount of time to conduct the search was brief, that factor, in our view, does not render the search reasonable under the circumstances where there was no exigen cy. To determine reasonableness, we look to each of the factors delineated in Bell, and, after balancing each of the four f actors, w e mak e a dete rminatio n of rea sonab leness. See -14- Bell, 441 U.S. 520 at 559, 99 S.Ct. at 1884, 60 L.Ed.2d at 481. We hold that the police officers search of Paulino was highly intrusive and demeaning. The type of search that Paulino was subjected to, and other searches that entail[] the inspection of the anal and/or genital areas have been a ccurately described as demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one s personal privacy. West, 87 F.S upp.2d at 565. We turn next to the second factor in the Bell analysis, justification for initiating the search. The State contends that there was justification for initiating the search because the police had suff icient cause to believe that th e illegal narcotics Paulino was known to be possessing were actually being concealed in that place. Citing our decision in Nieves, supra, the State argues that the authority to conduct a search of this scope is virtually unassa ilable. Paulino offers no argument that the police officers search of him was not justified. As this Court noted in Nieves: The Supreme C ourt in Chime l v. California , 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), articulated the bases for a search incident to arrest, those being, to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape . . . [or] to search for and seize any evidence on the arrestee s person in order to prevent its concealment or d estructio n. Id. at 763, 89 S .Ct. at 2040, 2 3 L.Ed.2d at 694; see also United States v. Edwards, 415 U.S. 800, 802-03, 94 S.Ct. at 1234, 1237, 39 L.Ed.2d 771, 775 (1974); United States v. Robinson, 414 U.S. 218, 226, 94 S.Ct. 467, 472, 38 L.Ed.2d 4 27, 435 (1 973); Carter, 367 Md. at 460, 788 A.2d at 653. 383 Md. at 58 4, 861 A .2d at 68-69 . Because a police of ficer can law fully make a full custodial search in order to support his general need to disarm a suspect or preserve evidence -15- that may be in the individual s possession, we c onclude that the police of ficers were justified in initiatin g the se arch of Paulin o. See Robinson, supra. We do not agree, as the State s argument suggests, that because the police had probable cause to arrest Paulino, the police were justified in searching him to the extent he was searched under the circumstances. The crux of this case, as illuminated infra, is not whether the police had the right to search Paulino, but instead whether an exigency existed such that an invasive search, conducted at the scen e of the arrest, w as reaso nable. Lastly, we examine the final two factors in the Bell analysis. We take into consideration the place a nd ma nner in which the sear ch of P aulino w as cond ucted. As to the place of the search, Paulino co ntends that th e parking lo t of a car w ash is a ver y public location [that was] within plain view of p eople who were not involv ed in the search itself. Further, Paulino contends that the presence of other people, who were not involved in the search of his person made this search excep tionally pu blic and therefo re unre asonab le. The State contends that the search of Paulino was conducted in an appropriate manner because, in its view, none of Paulino s clothes were removed, nor is there evidence that any part of his naked bo dy was exp osed und uly to any person s other than the searchin g officers. Paulino s pants w ere kep t in place during the sear ch . . . [and] [t]here is absolutely no evidence of any gratuitous or unnecessary action taken by the police. The State also argues that the search occurred at night in the barricaded stall of . . . a secluded car wash and that no part of Paulino s naked body was observed or was capable of being observed by anyone -16- other than the searching officers, much less others at the scene or the general public. The decisions of other jurisdictions are instructive. In McGee, police officers, acting on information from an informant approached McGee, suspecting that he was selling crack cocaine. As the police officers approached McGee they observed marijuana smoke in the air above McGee and a marijuana cigarette on the ground next to him. McGee, 105 S.W.3d at 614. The police arrested McGee, and drove him to a nearby fire station. In a secluded area of the station, McGee was ordered to drop his pants, bend over, and spread his buttock s. McGee, 105 S.W .3d at 613. The officer then performed a visual search of McGee s anal region. Id. The court concluded that the search of McGee amounted to a visual body inspection. To assess the reasonableness of th e search of M cGee, the court applied the four factors of the Bell analysis. In analyzing the place where the search was conducted, the court noted that the search must be conducted in a hygienic environment where there is no risk of infection. McGee, 105 S.W.3d at 617. Further, the court held that the searching officer acted appropriately to protect the privacy interest of McGee because he took him to a separa te locatio n withi n the fir ehous e that w as mor e seclud ed. Id. (citing Logan v. Shealy, 660 F.2d 1007 , 1014 (4 th Cir. 1981) (noting that str ip searches and body cavity searches involve such an intrusion that th ey should rare ly be conduc ted in public places) ). The testimony from the suppression hearing in the case sub judice, viewed in the light most favorable to the State, does not indicate that the officers made any attempt to protect -17- Paulino s privacy interests. T he search w as condu cted in the v ery place in which he was arrested, a car was h. Similarly, there is n o indication in the record before us that the police made any attempt to limit the public s access to the car wash or took any similar precaution that would limit the ability of the public or any casual observer from viewing the search of Paulin o. In ou r view, t he sear ch as co nducte d was unreas onable . The United States Court of Appeals, Eighth Circuit, recently decided United States v. Williams, 477 F.3d 974 (8 th Cir. 2007). In Williams, the police ob tained a w arrant to search Robert Lee Williams s home and his person. Prior to executing the warrant, the police conducted a traffic stop of Williams s vehicle. A pat-down search revealed something inside Williams s pants, but the off icers testified they decided not to search Williams more extensively while on th e street becau se they were c oncerned about his privacy. Instead, they took Williams into custody, pla ced him in a squad car, and drove him several blocks to the police department s Fourth Precinct building. Williams, 477 F.3d at 975. The police then conducted a search of Williams in the parking lot of the police precinct, opening Williams s pants, reaching inside his unde rwear and retrieving co ntraband near his gen itals. The court held that, in that instance, the search was n ot unreasonable. Th e court noted, however, that there is no evidence that [a citizen] would have seen the private areas of Williams s body or any contact between the gloved hand of the officer and Williams s genitals, which remained obscured from the view of passers-by. Williams, 477 F .3d at 97 7. We contrast the facts of Williams to the facts of the present case. The search of -18- Williams was a reach-in 6 type of search. Williams s pants w ere opened, b ut presum ably kept on his wa ist, while the officer reached into his underwear and retrieved the contraband. In contradistinction, during the search of Paulino, his pants were below his waist, his underwear was lifted up and the cheeks of his buttocks were manipulated and exposed. In our view , the search o f Paulino w as far mo re invasive a nd, as a resu lt, required a higher degree of privacy than the search conducted in Williams. Moreover, there is no evidence that the search of Paulino was shielded from the view of passers-by or the people present at the scene. In the instant case, the State contends that because the search did not occur on the side of a well-traveled highway and was conducted at night; the search, therefore, was reasonable. The State appears to overlook that its failure to prove exigent circumstances and the reasonableness of the search are determinative. As we have noted previously, the burden is on those seeking the exemptio n [from th e warran t requireme nt] to show the need [for the search ]. See Coolidge, 403 U.S. at 455, 91 S.Ct. at 2032, 29 L.Ed.2d at 576. There was no testimony at the suppression hearing in the case sub judice, that Paulino was attem pting to destroy evidence, nor that he possessed a weapon such that an exigency was created that would have required the police officers to search Paulino at that precise moment and under 6 A reach-in search involves a manipulation of the arrestee s clothes such that the police are able to reach in and retrieve the contraban d withou t exposing the arrestee s p rivate areas. See, U.S. v. Williams, 477 F.3d 974 (8 th Cir. 2007) ; State v. Jenkins, 842 A.2d 1148 (Conn. App. Ct. 2004); McClo ud v. Com monw ealth, 544 S.E.2d 866 (Va. Ct. App. 2001). -19- the circumstances, in a well-lit public car wash. There is no dispute that members of the public were present, specifically, the other pa ssengers in the Jeep C herokee. It is th eir presence, whether their view was obscured or otherwise, that makes the search of Paulino unneces sarily within the p ublic view and thus v iolative of the Fourth A mendm ent. 7 The police could have taken any number of steps, including patting Paulino down for weapons at the scene of the arrest and conducting the search inside the Jeep Cherokee vehicle in which Paulino was a passenger, or at the police station, to protect Paulino s privacy interest. Similarly, the police could have conducted the search in the priv acy of a p olice va n. See Dorlouis , 107 F. 3d at 256. During the transportation of Paulino from the scene of the arrest to the station or to a more priv ate location, th e police had the ability to secure Pa ulino to prevent his destruction or disposal of the contraband found on his person. Instead, they chose to search him in a public place in the view of others. Accordingly, we hold that the search of Paulino unreasonably infringed on his personal privacy interests when balanced against the legitimate needs of the police to seize the contraband that Paulino carried on his person. 7 In support of its contention that the police took reasonable precautions to protect Paulino s privacy interest, the dissent assumes facts that were not adduced at the suppression hearing. Specifically, the dissent incorrectly assumes that n o one saw P aulino s genitalia, and no one other than the searching officer saw Paulino s buttocks. Detective Latchaw s testimony at the suppression hearing simply does not support this contention. To the contrary, it is entirely conceivable that the search of Paulino was visible to any of the persons present at the scene of the arrest. There is no dispute that three of Paulin o s associates were present as well as a team of Baltimo re County police officers. M oreover, Detective Latchaw did not testify that t he searching office r took any prec autions to sh ield Paulino s body, particularly the obviously exposed part of his buttocks, from public view. -20- JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. BALTIMORE COUNTY TO PAY THE COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEA LS. -21- IN THE COURT OF APPEALS OF MARYLAND No. 75 September Term, 2006 JOHN AUGUST PAULINO v. STATE OF MARYLAND Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner (Retired, Sp ecially Assigned), JJ. Dissen ting Op inion b y Battaglia , J., which Cathell and Wilner, JJ., join. Filed: June 4, 2007 I respectfully diss ent. The crux of the present case is whether the police s sear ch of Pau lino was re asonable under the Fourth Ame ndment. 1 The ma jority concludes that the searc h was bo th a highly intrusive strip search and a visual body cavity search and holds that the search was unreasonable, emphasizing the location of the search and the perception that there was a lack of exigency. I disagree that the searc h constituted a strip search or a visual b ody cavity search, and that the search was unreasonable. A. In Nieves v. S tate, 383 M d. 573, 8 61 A.2 d 62 (2004), w e addresse d wheth er a strip search conducted incident to a la wful arres t for a mino r traffic offense was reasonable under the Fourth Amendment. In that case, Nieves clothes were removed and he was searched at a police station, resulting in the discovery of two small plastic baggies containing cocaine protruding from his rectum; we addressed what constitutes a strip search: The term strip search has been defined and used in differing contexts in Fourth Amendment jurisprudence. In general, strip searches involve the removal of the arrestee's clothing for inspection of the u nder clo thes an d/or bo dy. Some have defined strip searches to also include a visual inspection of the genital and anal regions of the body. Black's Law Dictionary defines a strip search as a search of a person c onducte d after that pers on's clothes have been removed, the purpose usually being to find any contrab and the person might b e hiding . . . . There is 1 The Fourth Amendment of the United States Constitution provides in relevant part that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. U.S. Const. amend. IV. a distinction between a strip search and other types of searches, such as body cav ity searches, wh ich could in volve visu ally inspecting the body cavities or physically probing the body cavities. Id. at 586, 861 A.2d at 70 (citations omitted). Therefore, a strip search generally involves the removal of clothing and inspection of the naked body; a visual b ody cavity search entails a specific visual inspection of the anal or genital body cavity areas. In the present case, the search of Paulino was not a strip search, nor a body cavity search. The evidence adduced at the suppression hearing reflected that police knew that Paulino would be traveling in a Jeep Cherokee ne ar a car wash in the 1100 block of N orth Point Road in Dundalk around 11 p.m. on September 29, 2000, and that he would be in possessio n of a quantity of crack cocaine, secreted in his buttocks area between his butt cheeks. Based upon this information, the police arrested Paulino when he arrived at the car wash, placed him on the gro und, and conducted the search, lifting up his boxer shorts, reaching between his butt cheeks and securing the baggie. Paulino w as already we aring his pants below his buttocks so that the officers found the drugs by simply lifting up [Paulino s] shorts, but not by removing them: [COUNSEL FOR PAULINO]: And you did conduct a search then, is that correct? How did you come to find the drugs? [DETECTIVE LATC HAW ]: Well, when w e -- when M r. Paulino was removed from the vehicle and laid on the ground, his pants were already pretty much down around h is -- below h is butt, because I guess that s the fad, these guys like wearing their pants down real low, so it w as just a matte r of lifting up his shorts, and between his butt cheeks, the drugs were -- I believe one of the detectives actually put on a pair of gloves and just -2- spread his cheeks apart a little bit and it was right there. The fact that Paulino s shorts were pulled away from his waist so that the searching officer could determine whether he had drugs secreted in his buttocks area does not render the intrusion a strip search or a visual body cavity search. Rather, the search of Paulino was a reach-in search inciden t to a lawful arrest. In United States v. Williams, 477 F.3d 974 (8th Cir. 2007), after Williams was arrested, an officer opened his pants, reached inside his underwear, and recovered a large amount of drugs. The Un ited States C ourt of A ppeals for the Eighth Circuit distinguished strip searches from reach-in searches, noting that unlike a strip search, a reach-in search does not involve the exposure of the suspect s private areas: To be sure, our cases suggest that police officers should take precautions to insure that a detainee's priv acy is protected from exposure to others unconnected to the search, Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.1985), but Jones, like Starks v. City of M inneapolis , 6 F. Supp. 2d 1084 (D .Minn. 1998), analyzed w hether polic e may conduct a strip search during which a suspect must expose fully his or her priv ate areas. Jones, 770 F.2d at 740; Starks, 6 F. Supp. 2d. at 1088-1089. In cont rast, a reach-in search of a clothed suspect does not display a suspec t's genitals to onlookers, and it may be permissib le if police take steps commensurate with the circumstances to diminish the potential invasion of the susp ect's privacy. Id. at 977 (emphas is added ) (citation s omitte d). See also United States v. Ashley, 37 F.3d 678, 682 (D.C. Cir.1994) (officer opened individual s pants and discovered a bag from drugs inside his underw ear); United States v. Williams, 209 F.3d 940 (7th Cir. 2000) (police officer -3- conducted search wherein he reached into the back of Williams s undershorts and removed a plastic bag c ontaining c ocaine fro m betwe en William s s buttocks ); State v. Smith, 464 S.E.2d 45, 46 (N.C. 1995) (officer searched individual by pulling open pants and underwear and reaching in to retrieve drugs) . Therefore, a reach-in search, or a search of a clothed suspect wherein the officer conducting the search reaches between an individual s clothing and his skin, without exposing the individual s genitalia to onlookers, is not the same as a strip search or visua l bod y cavity search and its reasonableness is measured by its limited intrusiveness weighed against the needs of the police to seize drugs they believe are secreted on a suspect s body. See Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979) ( The test for reasonableness under the Fourth Amendment is not capab le of precise definitio n or me chanic al applic ation. 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 mann er in which it is conducted, the justification for initiating it, and the place in w hich it is cond ucted. ); Nieves, 383 Md. at 583, 861 A.2d at 68 ( In determining the reasonableness of a search, each case requires a balancing of the government s need to conduct the search against the invasion of the individual s privacy rights. ). In Williams, 209 F.3d at 940, the p olice cond ucted a traff ic stop of Williams s vehicle, after which they asked Williams to get out of his car and for consent to search his person. After Williams was arrested, he attempted to flee the scene; the police apprehended him, and -4- an officer reached into the back of Williams s pants, within his undershorts, and removed a plastic bag containing cocaine from between his buttocks. Addressing whether the search was unreasonable, the United States Court of Appeals for the Seventh Circuit concluded that it wa s rea sona ble b ecau se the sea rch w as no t sign ifica ntly m ore intrusive than nece ssary: Williams next argues that the crack seized from him should be suppressed because it was found when Officer Lew is strip searched him at the scene subjecting him to great humility and indignity. The district court, however, construed the search as a search incident to an arrest, not a strip search. *** Lewis retrieved the object by sliding his hand under Williams waistband and down the back part of his pants. Williams was never disrobed or exposed to the public. The search occurred at night, away from traffic and neither officer saw anyone in the vicinity. Additionally, Williams attempt to flee the scene and his physical resistance p rior to the retrie val of the substance suggest that he would have tried to further conceal or dispose of the evidence had they not retrieved it immediately. In this case, the sc ope of the in itial pat-down search by the officers was no more intrusive that which was already permitted. . . . The officers seizure of the drugs did not add significantly to Williams invasion of privacy. Based on the officers experience, the scope of the search, its justification and the place where it occurred, the district court did not clearly err in concluding the search of Williams was not overly intrusive and was correct in denying the motion to suppress. Id. at 943-44 (emph asis added). In Williams, 477 F.3d at 974, the United States Court of Appea ls for the Eig hth Circuit addressed a search wherein, on a police precinct parking lot surrounded by a residential neighborhood, an officer opened Williams s pants, reached inside his underwear, and -5- removed a large amount of crack and powder cocaine. Assessing the reasonableness of the reach-in search, the c ourt noted th at [t]here is n o question that police were justified in searching inside William s s pants [b ecause] [t]h e police possessed a warrant authorizing them to search his person for drugs and firearms, and an initial pat-down produce d specific probable cause that W illiams was h iding something inside his pants, and that the proper issue was w hether the se arch was reasonab le in its scope, manner, and location. Id. at 975. In this respect, the court concluded that the search was reasonable, remarking that the office rs took suff icien t precaut ions to protec t Wil liam s s privacy: We believe that th e officers to ok sufficie nt precautions to protect Williams's privacy before fulfilling their legitimate need to seize contraband th at Williams h ad chose n to carry in his underwear. The police refrained from searching Williams on a public street, and instead took him to the m ore private precinct parking lot. The parking lot is partially secluded. It holds squad cars and the cars of police em ploye es, an d is surro unded by a chain link fence that is topped by barbed wire and cove red to some degree with vegetation. The distr ict co urt's findings of fact recounted uncontradicted testimony of police officer Randy Olson that no vehicles entered the lot during the search, and that he saw no person other than police officers-either inside or outside the parking lot-within eyesight of the brief search. To the extent any citizen observed the search without notice of the police, there is n o evidenc e that such a person would have seen the private areas of Williams's body or any contact between the gloved hand of the officer and Williams's genitals, which remained obscu red fro m the v iew of passers -by. Rather, the citizen would have observed from a distance that an officer briefly reached inside Williams's pants and pulled out a bag of cocaine. We conclude that such a search does not unreason ably infringe on Williams's privacy interests when balanced against the legitimate needs of the police to seize contraband that he carried on his person. -6- Id. at 977-78. Likewise, in Smith, 464 S.E.2d at 45, the defendant was stopped by police officers, and informed that he was suspected of transporting cocaine; the officer stood between the open car door and Smith and pulled back and down Smith s pants and underwear, reached in, and pulled out a paper towel containing cocaine from under Smith s scrotum. Assessing the reasonableness of the search, the Supreme Court of North Carolina reversed the intermediate appella te court a nd ado pted the dissent, State v. Sm ith, 454 S .E.2d 680, 687 (N.C. Ct. App. 1 995) (W alker, J., dissentin g), where in Judge W alker conc luded that the search was reasonable because there were sufficient exigent circumstances to conduct the search in the street to prevent the loss or destruction of the drugs and because the officer took precautions to protect Smith s privacy interests: The search in the instant case took place at approximately 1:30 A.M. at the intersection of two streets in Fayetteville. The record does not reve al the conditio ns at the ti me, a nd defen dant's objection was that h e did not w ant the off icer to searc h [his] rear in the m iddle of the stree t. Here the evidence does show that prior to the search Officer Cook asked de fendant to step behind the open c ar door of his vehicle and that he positioned h imself between defendant and the car door on the outside. Officer Cook said he took these steps because [he] didn't want to expose [defendant] to other cars, the public, to emba rrass him , that sort o f thing. Defendant did not dispute this testimony. Considering the totality of the circumstances, I believe that the officers here, like the trooper in Bazy, took the n ecessary and reasonab le precaution s to prevent the public exposure o f defendant['s] . . . private a reas. While there may have been other less intrusive means of conducting the search, I agree with the Bazy court that the availability of those less intrusive means does not autom atically -7- transform an otherwise reaso nable searc h into a Fo urth Amendment violation. Just as the court in Bazy was unwilling to second guess the procedures used by the officers in th at case, I am u nwilling to second-guess the trial court's find ing here tha t the officers conduct during the search did not v iolate defen dant s Fou rth Amendment rights. The tria l cou rt in ruling on defe ndant's motion to suppress had the argum ents of bo th parties bef ore it and was in a su perior positio n to evaluate the reasonableness of the search . I do not believe defendant is entitled to a new trial, and I would affirm the trial court in all respects. Id. at 687 (Walker, J., dissenting). Similar to the searches conducted in those cases, the search of Paulino was reasonable under the Bell reasonableness balancing test; the police needed to conduct the search in order to prevent either loss or destruction of the drugs, which could have occurred while in transit, and the officers pro tected Pau lino s privacy inte rests by conductin g the search in such a m anner to prevent any onlooke rs from vie wing his genitalia. The majority contends, because the officer touched Paulino s clothes and body to view and secure the drugs, that the search constituted a strip search, citing Amaechi v. West, 237 F.3d 356 (4th C ir. 2001) (of ficer walk ed Am aechi to po lice car, causin g her hou sedress to fall open, and during search, swiped his hand across Amaechi s vagina causing slight penetration of her genitals); United Sta tes v. Dorlo uis, 107 F.3d 2 48 (4th Cir.), cert. denied, 521 U.S. 1126, 117 S.Ct. 2525, 138 L.Ed.2d 1025 (1997) (police took Paul inside a police van and ordered him to rem ove his clothes); United States v. Vance, 62 F.3d 1152 (9th C ir. 1995) (Vance consented to a pat-down search, which revealed a bulge in his crotch area and -8- that he was wearing two sets of underwear; a customs officer then ordered Vance to remove his trousers and pull dow n his unde rwear); Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985) (Blackburn was required by prison officials to remove her clothes so tha t a matron c ould view her armpits, lift her breasts, examine h er genitalia, and spread her bu ttocks apart); McGee v. State, 105 S.W.3d 60 9 (Tex. Crim. A pp.), cert. denied, 540 U.S . 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003) (McGee was forced to remove his pants, bend down, and spread his buttocks); and Hughe s v. Com monw ealth, 524 S.E.2d 155 (Va. C t. App. 2000) (Hughes clothes were removed and he was asked to bend ov er and cough). Th ese case are not instructive, however, because the searches in those cases involved removal of clothing, which was not present in this case, and because they involved an intentional touching of genitalia, which was far more intrusive than the touching the office r did in this case to secure the drugs. Rather, the fact that Paulino was not fully or partially disrobed differentiates the instant search. In McClo ud v. Com monw ealth, 544 S.E.2d 866 (Va. Ct. App. 2001), the defendant was arrested for po ssessing a stolen car; during the s earch incid ent to the arre st, the officer pulled McC loud s pan ts and und erwear aw ay from his b ody and disc overed p lastic baggies containing cocaine. The officer reached inside McCloud s underwear and seized the baggies. In assessing the reasona bleness of the search, the intermediate appellate cou rt concluded that the search was not a strip search because the search did not involve full or partial disrobement, nor did it involve the exposure of McCloud s genitalia: -9- We have found no cases, nor has appellant cited any, that include arranging of the suspect's clothing in a definition of strip se arch. *** Further, in a review of a number of federal appellate decisions, we found no cases that characterize a strip search as other than partial or total d isrobem ent. See Amaechi v. West, 237 F.3d 356 (4th Cir. 2001); Swain v. Spinney, 117 F.3d 1 (1st Cir. 199 7); Justice v. City of Peachtre e City, 961 F.2d 188 (11 th Cir. 1992); Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989) ; Weber v. Dell, 804 F.2d 796 (2nd Cir. 1986); Salinas v. Breier, 695 F.2d 1073 (7th Cir. 1982 ). In this case, in accepting the Commonwealth's evidence, we find appellant was not subjected to a strip search. Unlike in Hughes, Moss, Taylor, and Gilmore, appellant's clothing was not removed, and his genital area wa s not exposed. Th e officers made no visual inspection of appellant's genitals nor did the officers touch appellant's genitals. Therefore, we affirm the judgmen t of the trial cou rt. Id. at 868-69. Further, in Williams, 477 F.3d at 974, a case remarkably close to the situation we consider here, the court rejected the argument that a search was unreasonably intrusive because it involved physical contact, remarking that such contact is unavoidable when conducting a search for drugs: Williams makes two objec tions to the sea rch. First, he claims it was unreasonably intrusive in its scope an d manne r because it involved p hysical contact w ith his genitals . We disagree. The police could not have removed the drugs that Williams stashed near his genitals w ithout mak ing some intimate contact, and we reject Williams's claim that such contact is per se unreasonable. Some physical contact is permissible, and indeed unavoidable, whe n police r each into a sus pect 's pants to remove -10- drugs th e suspe ct has ch osen to hide the re. . . . The search of Williams was both less intrusive, as it involved no penetration or public exposure o f genitals, and far more justified, as police ha d probab le cause to believe he was carrying drugs inside his pants. We disagree with Williams s claim that the police were required to avoid physical contact with him by directing him to disrobe and then visually inspecting his body for drugs. A creative judge, engaged in post hoc evaluation of police conduct can almost always imagine som e alternative means by which the objectives of the police might have been accomplished. But the existence of less intrusive means does not, by itself, make a search un reasonab le. While the potential for destruction of evidence is diminished when a suspect is in custody, it is not complete ly eliminated, and it was not unreasonable for the officers to assume the initiative by seizing the contraband that Williams secreted in h is underwear, rather than allow Williams to disrobe and remove the drugs himself. *** In contrast, a reach-in search of a clothed suspect does not display a suspect s genitals to onlookers, and it may be permissible if police take steps commensurate with the circumstances to diminish the potential invasion of the suspe ct's privacy. Id. at 976-78 (some c itations omitted). Thus, the fact that the search of Paulino involved an officer touching P aulino s bu ttocks to view the drugs did not automatically make the search an unreasonably intrusive strip sea rch. Instead, Paulino s search was a reasonable reach-in search incid ent to arrest. B. Even were the search of Paulino to be considered a strip search, it was reasonable. Although the majority agrees that strip searches may be reaso nable, it finds that the search -11- of Paulino was unreasonable because it was conducted at a public car wash in the presence of Paulino s friends who arrived with him in the Jeep Cherokee. In its conclusion, the majority is establishing a per se rule that strip searches must be done in an enclosed area. Such a per se rule violates the standard of reasonableness iterated in Bell v. Wolfish, 441 U.S. at 520, 99 S.Ct. at 1861, 60 L.Ed.2d at 447. In Bell, the Supreme Court remarked that whether a strip search is reasonable is incapable of being measured by per se rules because the test for reasonableness is not capable of prec ise defi nition o r mech anical a pplicatio n. Id. at 559, 99 S .Ct. at 1884, 6 0 L.Ed.2d at 481. Th e Court did not differentiate between searches conducted in public and searches conducted in enclosed areas, stating that the reasonableness of a search is measured by balancing the need f or the particu lar search in this case, the po lice s need to prevent ev idence fro m becom ing destroyed or lost against the inva sion of privacy th e search entails. Id. In Nieves, 383 M d. at 573, 86 1 A.2d a t 62, this Cou rt considered w hether a strip search was reaso nable after N ieves had b een stopp ed for a traf fic offense. In assessing the reasonableness of the strip search, we noted that if an individual is connected with drug trafficking, a reasonab le strip search in cident to a lawful arrest may be c onduc ted. Id. at 598, 861 A.2d at 77. Moreover, we did not distinguish searches conducted in public from searches conducted in enclosed areas, instead emphasizing that [i]n determining the reasonableness of a search, each case requires a balancing of the government s need to conduct the search against the invasion of the individual s privacy rights. Id. at 583, 861 -12- A.2d at 68. Therefore, whether a search is conducted in public as opposed to in an enclosed area is not controlling; the reasonableness of a search is measured by balancing the need for the search against the intrusion upon the individual s privacy rights. In State v. Jenkins, 842 A.2d 1148 (Conn. App. Ct. 2004), an undercover police officer, after having been informed that the defendant was dealing drugs, arranged to buy heroin from him. When Jenkins approached the officer to sell him the drugs, he was arrested and taken to the side of a restaurant building to be searched ; the officer subsequently pulled Jenkins s pants and underwear away from his body and discovered glassine packets of heroin and crack cocaine. Although the court considered the se arch of Jenkins a strip search, it found the search reasonab le under the Fourth Amendment because the officers had reasonable suspicion that Jenkins had drug s on his person, and they adequately protected his privacy interests even though the search was conducted in public: A custodial arrest gives rise to the a uthority to search , even if the arresting officer does not indicate any subjective fear of the [defendan t] or . . . suspect that [the defendant] w as armed. The justification or reason for the author ity to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at tria l. . . . It is the fact of the la wful arres t which es tablishes the a uthority to search, and . . . in the case of a lawful cu stodial arrest a f ull search of the person is not only an exception to the warrant requirement of the Fo urth Amen dment, but is also a rea sonable search under that amendment. (Citations om itted; empha sis added; internal quotatio n mark s omitte d). It was, therefore, of no moment that Brody was searching for weapons or -13- contraband. *** In this case, the manner in which the officers conducted the strip search struck the appropriate balance between the need for the particular search and the invas ion of p ersona l rights. . . . The officers took the defen dant to the sid e of the restau rant, away from the street and ou t of public view . [The office r] did not require him to remove any of his clothing, but rather pulled his pants and underw ear awa y from his b ody spec ifically to retrieve the glassine packets he discovered and suspected were there from the patdown of the defendant. Id. at 1157-58 (emp hasis added). Similar to the search conducted in Jenkins, the police too k reasona ble precaution s to protect Paulino s privacy interests, and the search, although not done in a physically enclosed space, was no more intrusive than necessary to determine whether Paulino possessed drugs. The evidence at the suppression hearing reflected that Paulino arrived at the car wash late at night when the car wash was closed to the public. The police arrested him, placed him on the ground and conducted the search, lifting up his boxer shorts, reaching b etween h is butt cheeks and securing the baggie, precisely where they were told it would be. The police secured the drugs in Paulino s possession inside the bay of a car wash facility in the rear of a park ing lot, bl ocked in by police vehicles, and secluded behind a storage facility and an automob ile repair shop, such that the area could not be seen by passers-by. Although the majority assumes that Paulino s friends were present at the car wash and that they had the ability to view Paulino s buttocks during the search, there was no evidence adduced at the -14- suppressio n hearing to support this assertion. Although one of the detectives testified that the car wash area w as well-lit, there is no evidence that anyone sa w Paulino s genitalia, nor that anyone other than the searching officer saw Paulino s buttocks. Moreover, even when there exists alternatives, or less intrusive m eans, to con duct a search, that does not by itself render the sear ch unre asonab le. See Byndloss v. State, 391 Md. 462, 484, 893 A.2d 1119, 1133 (2006) ( A creative judge engaged in a post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But [t]he fact that the p rotection of the public might, in the abstract, have been accomplished by less intrusive means does not, itself, render the search unreasonable. The question is not simply whether some other alternative was available, bu t whether th e police acte d unreaso nably in failing to recognize or to pursue it. ), quoting Wilkes v. Sta te, 364 Md. 554, 577, 774 A .2d 420, 433 (200 1), quoting in turn United States v. Sharpe, 470 U .S. 675 , 687, 10 5 S.C t. 1568, 1576, 84 L.Ed.2d 605, 616 (1985) (citations omitted). By holding as it does, the m ajority impermis sibly restricts the polic e s ability to conduct reasonable searches under the Fourth Amendment for drugs that are secreted on an individual known to be carrying such drugs to prevent th eir loss. I disagre e, and wo uld affirm the judgment of the Court of Special Appeals. Judges C athell and W ilner authoriz e me to state th at they join in this dis sent. -15- In the Circu it Court of B altimore C ounty Civil No. 00 CR 3812 IN THE COURT OF APPEALS OF MARYLAND No. 75 September Term, 2006 JOHN AUGUST PAULINO v. STATE OF MARYLAND Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner, A lan M. (R etired, Spec ially Assigned), JJ. Dissenting Opinion by Cathell, J. Filed: June 4, 2007 I join Judge Battaglia s dissent an d would further h old that when a pe rson wears their pants below the level of their buttoc ks, he or she is intentionally offering that area for observation by the public a nd obvio usly has no ex pectation o f privacy suff icient to proh ibit a police officer from also looking. If a person w ants to have an e xpectation of privacy in that area of his or her body, he or she should keep their pants up when in public.

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