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Court of Special Appeals upholds use of strip searches

Police need very little beyond their own suspicion to expand a valid search incident to arrest into a full strip search, Maryland’s second-highest court has held.

The Court of Special Appeals explained why it held that a baggie full of crack cocaine should be admissible at the trial of Gregory Maurice Harding.

The baggie fell out of the pants Harding was ordered to remove at the police station after his arrest.

“We are dealing with a single phenomenon called a strip search,” retired Judge Charles E. Moylan Jr. wrote for the appellate panel. “Starting with a good search incident [to arrest], all that is required is particularized suspicion that drugs may be hidden on or in the body of the suspect, and with that, the strip search, so far as its justification is concerned, is reasonable.”

While the court recognized that debates have been “raging” over whether anything beyond a traditional search is reasonable under the Fourth Amendment, it found the particularized suspicion necessary for a strip search was satisfied in the case.

Friday’s 61-page opinion explained a decision the court reached on Oct. 7, after the state appealed a Baltimore County judge’s pretrial ruling that the drugs were inadmissible.

In order to satisfy the time limits specified in the Courts and Judicial Proceedings Article, the Court of Special Appeals issued its decision and remanded the case for a trial on its merits, promising a full opinion would follow. That opinion was published Friday.

According to the opinion, Detectives Richard Hearn and Timothy Stadler, both in the Baltimore County Police Department’s vice and narcotics section, had gotten a tip on Sept. 2, 2009, from a “very reliable informant” that Harding was selling crack cocaine out of a blue Audi at a liquor store on Perring Parkway and McClean Boulevard.

The informant, who, according to court documents, had been providing tips reliably for the last six or so months, also provided the license plate number. While doing undercover surveillance on Joppa Road on Sept. 10, the detectives noticed the blue Audi.

The detectives summoned a marked police car to pull the Audi over if the opportunity presented itself. When Harding began driving 50 miles per hour in a 35-miles-per-hour zone, the officer pulled him over and wrote him a warning for speeding.

A canine unit was called by the two detectives, and the sniffing dog, Aaron, indicated that he had found drugs in the driver’s side door and the driver’s seat. The court found that the dog’s positive alert provided probable cause to search the Audi and for the arrest of Harding.

After their search of the car turned up no  narcotics, the detectives conducted a search incident to arrest, finding more than $1,400 in cash in Harding’s front and back pockets — but no drugs. Hearn decided it was “necessary to take the search beyond the limits permitted for a routine search incident to lawful arrest,” according to court documents.

“My five years as a detective in the [drug] unit has made me learn that drug dealers a lot of times would store drugs in their pocket or pants leg and conceal drugs,” Hearn testified. “It takes more than a cursory search to find various items most of the time.”

Harding was moved to the precinct station for a strip search. After he removed his pants, the detectives shook them out and the baggie of crack cocaine fell to the floor.

“At each elimination of an alternate hiding place, the odds in favor of the appellee’s body went up exponentially,” Moylan wrote.

Moylan wrote for himself and Judge Robert A. Zarnoch. Judge Kathryn Grill Graeff concurred only in the judgment.

Asked to comment on the opinion, David Rocah, staff attorney at the ACLU of Maryland, said the outcome was probably correct; however, he was disturbed by the opinion’s characterization of some of the earlier cases on strip searches — especially a footnote citing a graphic description in Mary Beth G. v. City of Chicago, which called strip searches “demeaning, dehumanizing, undignified, humiliating…”

“The author of that oft-quoted Philippic, in addition having a great Thesaurus, had obviously never done his two years in the Army,” Moylan wrote.

“I think that’s one of the more disturbing footnotes I’ve ever read,” said Rocah, who was not involved in the case. “Anyone who feels that way about a strip search has obviously never undergone one. That is not the way the [state] ought to be treating its own citizens.”

Neither Harding’s trial attorney, Ivan Bates, nor Brian S. Kleinbord, chief of the criminal appeals division at the attorney general’s office, could be reached for comment Monday evening.

According to the Maryland Judiciary’s online court records, Harding has filed a petition for certiorari.

WHAT THE COURT HELD

Case:

State of Maryland v. Gregory Maurice Harding, No. 0083, Sept. Term 2010. Reported. Opinion by Moylan, J., retired, spec. assigned. Filed Dec. 10, 2010

Issue:

Did the police have adequate justification for a more intensive search, such as a “strip search” stemming from a search incident to arrest?

Holding:

Yes; a strip search is reasonable if there is particularized suspicion that drugs may be hidden on or in the body of the suspect.

Counsel:

Brian S. Kleinbord for petitioner; Ivan Bates for respondent.

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