The Volokh Conspiracy
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Strip Searches Generally Aren't Allowed as Searches Incident to Arrest, Third Circuit Holds,
thus deepening a circuit split. (Note that strip searches are generally allowed when and if the arrestee is placed in the general population of the jail.)
From Third Circuit Judge Stephanos Bibas, joined by Judges Cindy Chung and Thomas Ambro, in yesterday's Beatty v. Gardner:
After arresting a suspect, officers may search his person for weapons or evidence without a warrant or any further justification. But they may go only so far. To search his home, car, or cellphone, they ordinarily need to get a warrant backed by probable cause.
Today, we recognize another such limit on searches incident to arrest: strip searches. Outside of jails or prisons, officers need a search warrant (or exigent circumstances) supported by probable cause to believe that a strip search will reveal weapons, contraband, or evidence under the arrestee's clothes. Thus, the officers here violated the Fourth Amendment by strip-searching an arrestee without a warrant or exigent circumstances. But because that limit was not clearly established at the time, qualified immunity shields them from liability….
[I.] POLICE SEARCH BEATTY THREE TIMES
One afternoon, police officers Clinton Gardner and Calvin Irvin were patrolling an area of Williamsport, Pennsylvania, known for drug trafficking. They noticed Kyle Beatty and his girlfriend in a car, followed them to a gas station, and waited for them to head into the store. Gardner then approached the car. He smelled marijuana through an open window and spotted a burnt marijuana joint in the ashtray as well as marijuana flakes on the floor. So he headed toward the store to investigate.
Beatty was first searched inside the store. As Gardner approached him, Beatty put his hands up and asked if the officer wanted to search him. Gardner obliged and patted down his waistband, pockets, legs, ankles, and groin but found nothing.
Beatty was searched a second time outside. After exiting the store together, Beatty and Gardner went back to the car. Gardner warned the couple that unless its owner, Beatty's girl-friend, consented to a car search, the officers would have it towed and apply for a search warrant. Though she consented at first, she started disobeying an officer's commands. Beatty then told his girlfriend to revoke her consent to search and the officers handcuffed him, turning him face-down onto the hood of the car. Irvin searched Beatty's waist, pockets, groin, and ankles and removed his wallet, but found no contraband. After this search, the officers put him in the back of their squad car and waited for a tow truck.
While waiting for the tow, the officers tried to get Beatty to identify himself. Gardner threatened that, until Beatty gave his full name, he would be arraigned as John Doe and could sit in jail. They could "play that game."
Beatty was searched a third time after the officers drove him down to the police station. The officers brought him there solely to strip-search him, but they found nothing….
[II.] THE STOP AND FIRST TWO SEARCHES WERE REASONABLE …
As a rule of thumb, the Supreme Court has held, searches must first be authorized by search warrants. But not always.
There are exceptions for warrantless searches throughout the criminal process. When he first encounters a suspect, an officer who has reasonable suspicion may frisk the suspect's outer clothes for weapons to protect his own safety. After a lawful arrest, an officer may search the arrestee's person for weapons and evidence. Upon booking an arrestee at a police station, an officer may search his person to inventory and safeguard his possessions before jailing him. And at the end of the process, guards may strip-search inmates before putting them into the general population of a jail or prison. Plus, at any time during the process, valid consent makes a warrantless search reasonable. The same is true of exigent circumstances.
The first warrantless search, the pat-down inside the store, was reasonable. Beatty consented to the pat-down, so it was reasonable for Gardner to perform one. And Gardner was entitled to stop Beatty in the first place because he had reasonable suspicion. Indeed, Gardner had not only reasonable suspicion, but probable cause to suspect Beatty of a crime: The officer had smelled and seen traces of marijuana in the car, and possessing even a small amount of that drug is a state-law crime.
The second warrantless search, on the hood of Beatty's car, was reasonable as a search incident to arrest. Both parties agree that Beatty was under arrest. And the arrest itself was lawful: As discussed, the officers had probable cause to believe that he possessed marijuana.
[III.] STRIP SEARCHES EXCEED THE SCOPE OF SEARCHES INCIDENT TO ARREST
The difficulty lies with the third search. True, Beatty was still under arrest. Even so, we hold that the search-incident-to-arrest doctrine does not authorize strip searches; they go too far. Because the officers had neither a warrant nor exigent circumstances to justify strip-searching Beatty, that search was unreasonable.
The search-incident-to-arrest doctrine is a rule, not a case-specific balancing test. After a lawful arrest, officers may automatically search an arrestee's person. No warrant, or even particularized suspicion, is needed. Such a search is per se reasonable because arrests are highly charged: Officers need to quickly separate an arrestee from (1) weapons that he might pull out or (2) evidence that he might destroy. This rule has categorical exceptions for certain privacy interests that categorically outweigh the government's interests in conducting a search. Thus, certain searches categorically fall outside the doctrine. See, e.g., Chimel v. California (1969) ruling out a home search incident to arrest); Arizona v. Gant (2009) (same for a car); Riley v. California (2014) (same for cellphone data).
Riley illustrates how to gauge the limits on searches incident to arrest. There, officers searched two arrestees' cellphones without warrants. The Supreme Court held that the search-incident-to-arrest doctrine does not license warrantless searches of cellphone data. It reasoned that neither of Chimel's justifications ordinarily applies to cellphones. First, cellphones rarely enable escape or endanger officer safety. Data are not weapons. In the rare case when the failure to search a cellphone could endanger an officer, courts should instead rely on the case-specific exigent-circumstances exception to the warrant requirement.
Second, there is rarely a serious need to prevent destruction of evidence: Once arrested, arrestees usually cannot delete data, and police can prevent destruction by turning phones off or putting them into Faraday bags. Riley also noted that destruction of cellphone evidence is uncommon. And when officers do have an immediate need to prevent that destruction, they may rely on the exigent circumstances to justify a warrantless search.
Those governmental interests, Riley explained, pale in comparison to users' interests in keeping their cellphone data private. Cellphones contain and reach enormous amounts of personal data, much of it intimate. Because of "all they contain and all they may reveal," the Court held that the search-incident-to-arrest doctrine does not cover cellphone data. Though officers may seize a cellphone incident to arrest, to search its data they must "get a warrant" backed by probable cause.
Applying Riley's categorical approach, we hold that the search-incident-to-arrest doctrine does not include strip searches either. To start, Chimel's twin rationales are not implicated. As for destruction of evidence, the officers give us little reason to believe that destruction of evidence concealed on an arrestee's body pending a search warrant is a widespread problem. Gardner did testify that "in [his] experience, [with] both traffickers and users, one of the most common places that they conceal narcotics is in their groin area." But Riley dismissed "only a couple of anecdotal examples" as not enough to justify evidence preservation across the board. Particular crimes, such as smuggling drugs by airplane passengers, may often involve concealing drugs on the body. Even so, we see no solid evidence to justify strip searching all drug users and traffickers as a matter of course. And there are ways short of strip searches to keep suspects from disposing of secreted evidence on or in their persons.
As for Chimel's officer-safety rationale, police are free to pat arrestees down for weapons. If a frisk turns up a potentially dangerous bulge, that may amount to exigent circumstances justifying a further search for weapons. The same is true if police have some other particularized reason to believe that this arrestee is concealing a dangerous weapon. But no such danger was present here: The officers had already searched Beatty twice, finding nothing dangerous. No one had told them that he was concealing a gun or knife in his crotch. And they admit they were searching him solely for evidence, not weapons. Given the various alternative sources of authority that officers could rely on to justify a further search, there is little need to authorize strip searches automatically upon arrest.
On the other side of the balance, the privacy interests are weighty. Strip searches expose to strangers the most intimate parts of the body, which are kept covered for modesty and called "private parts." These searches are an "extreme intrusion on privacy." They are "embarrassing" and "humiliating," sometimes even "frightening." That humiliation is a necessary evil to keep weapons, drugs, other contraband, and lice out of the general population of jails and prisons. But because Beatty was not going to be jailed or imprisoned, the institutional-search exception does not apply here.
Given the balance of competing interests, we hold that the search-incident-to-arrest doctrine does not extend to strip searches. Sometimes, an arrestee may consent to a strip search. Or exigent circumstances may justify it: For instance, an officer might detect a weapon during a pat-down or know that this arrestee conceals weapons in his crotch. Otherwise, an officer must first get a search warrant based on particularized facts showing probable cause to search underneath the arrestee's clothing.
The officers here had no warrant, exigent circumstances, or consent. They had already searched Beatty twice, once inside the store and again on the hood of the car, without finding weapons or contraband. They had no particularized reason to believe that a warrantless third search was needed to preserve evidence. Their generalized speculation about drug users and traffickers is not specific enough to show that Beatty might have concealed evidence, let alone that he might destroy it immediately.
True, other circuits have let officers strip-search arrestees based only on reasonable suspicion [citing cases from the First, Seventh, Eighth, and Eleventh Circuits]. But we are unpersuaded. This approach rests on older cases that predate the Supreme Court's reweighing of the privacy interests in Safford and Florence, not to mention Riley. And these cases failed to explain why they adopted a standard below the ordinary requirement of probable cause. Instead, we join the Fifth, Ninth, and Tenth Circuits in requiring a warrant supported by probable cause….