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‘Look-in’ search of suspect’s underwear unconstitutional, Md. court says

A Frederick County police officer violated a woman’s constitutional rights by looking down her underwear during a highway-side search for hidden drugs after a traffic stop allegedly revealed cocaine in her car, Maryland’s second-highest court has ruled in overturning her drug conviction.

In its reported 3-0 decision, the Court of Special Appeals said the “look-in” search of Shawna Faith following her arrest was unreasonable because police had no emergency justification for conducting such a “sexually invasive” search on the side of heavily trafficked Interstate 70 on a spring evening in 2017.

“(W)e are concerned that without any showing by the state that police had a legitimate need to conduct this type of sexually invasive search on the side of a public roadway, every search incident to a traffic stop arrest involving suspected CDS (controlled dangerous substances) could trigger a visual body search, even in the most public of circumstances,” Judge Stuart R. Berger wrote for the appellate court Friday.

The court rejected the state’s argument that Faith’s Fourth Amendment right against unreasonable searches was protected because her back was turned to the interstate when a female officer, Amanda Ensor, told Faith to unbutton her shorts and gently expanded her underwear for the limited purpose of enabling the officer to see if she was concealing drugs. The search revealed a condom filled with crack cocaine, according to an agreed statement of facts between Faith and prosecutors.

“On the merits, we are not persuaded that, by itself, shielding others from viewing an arrestee’s private parts while a sexually invasive search is taking place in public view at a public location amounts to ‘taking into consideration … privacy as much as possible,’” Berger wrote, quoting from the state’s argument.

“As courts consistently recognize, having a government agent visually inspect one’s genital area is traumatic – accurately described as demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s privacy,” Berger added. “Moreover, that privacy invasion extends beyond distress in submitting to a law enforcement officer’s examination of one’s private parts, to the indignity of having others witness that such a search is taking place.”

The court added the search could have occurred at a police station as the officers faced no threat to their safety or any risk that Faith could dispose of evidence while in their custody.  Instead, the officer chose to search Faith in view of her fellow passengers, an adult friend, Faith’s young son and motorists on the interstate, the court stated.

Faith was pulled over at about 7:15 p.m. on April 21 by Frederick County Sheriff’s Deputy Douglas Storee, who said she was following too closely the car in front of her in the westbound lane of I-70. Storee testified he suspected drugs might be in the car when he noticed track marks on Faith’s arm and a sensitivity to light that indicated recent drug use.

Storee requested a drug-sniffing dog be brought to the scene and told Faith and her passengers to get out of the car. The dog alerted officers to the presence of illegal drugs in the vehicle, where crack cocaine was found, according to court documents.

Ensor was called to the scene to search Faith. Ensor later testified that, with Faith’s back to the highway, she asked her to unbutton her shorts and pulled her underwear at the waistband and looked down, where she saw the drug-filled condom.

A Frederick County Circuit Court judge deemed the search valid based on the officer’s efforts to ensure Faith’s privacy and admitted the drugs into evidence.

Faith was subsequently convicted in a bench trial of possession of cocaine with intent to distribute based on the agreed statement of facts regarding the drugs found in her underwear. She was sentenced to 20 years in prison with all but 18 months suspended, plus three years’ probation.

Faith then sought review by the Court of Special Appeals, successfully arguing that the drugs were found during an unconstitutional search.

“When, as in this case, the police choose to conduct a non-exigent look-in search in a public setting, constitutional constraints require measures beyond simply shielding others from viewing private parts,” Berger wrote.

“Here, the non-exigent visual inspection of the genital area of a person suspected of concealing CDS occurred in the daylight, while Faith stood between two police cruisers with emergency lights flashing, along the shoulder of an interstate highway, as moderate to heavy traffic passed,” Berger added. “Indeed, Faith’s companion and three-year-old child were present as the search occurred. Under these circumstances, we hold that the search violated Faith’s Fourth Amendment right to be free from unreasonable searches.”

Berger was joined in the opinion by Judges Andrea M. Leahy and Glenn T. Harrell Jr., a retired jurist sitting by special assignment.

The Maryland attorney general’s office declined to comment Monday on the decision or any plans to seek review by the Court of Appeals.

Faith was represented by the Maryland public defender’s appellate division, whose chief, Brian Saccenti, also declined to comment on the ruling.

The Court of Special Appeals rendered its decision in Shawna Lynn Faith v. State of Maryland, No. 1040 September Term 2018.

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