STATE v. HARDING

rch in such a case, must then begin at Square One. The probable cause to arrest may, on the other hand, contain more than enough particularization, so that nothing further is required. Yet again, the probable cause may contain some particularization but not enough, so that supplementary particularization will be necessary. Nothing is automatic. It is totally ad hoc.

The troubled relationship stemmed from the fact that a search incident does not require a search-specific particularization, but a strip search does. If in 1973, United States v. Robinson and Gustafson v. Florida had not been decided as they were, far more by way of particularization might have, of necessity, been built into the justification for a search incident and any remaining particularization problems might have been significantly more minimal. That, however, did not happen, and particularization must be independently established.

Particularized Suspicion As the "Open Sesame"

In State v. Nieves, 383 Md. 573, 861 A.2d 62 (2004), the Court of Appeals, speaking through Judge Battaglia, hedged a little because of the relatively innocuous nature of the traffic offense for which Nieves had been arrested, but nonetheless indicated that reasonable particularized suspicion is the required justification for a strip search.

[B]ased upon our own jurisprudence and utilizing the experience and analyses of many other courts addressing the reasonableness of strip searches, we hold that the reasonable, articulable suspicion standard applies in the strip search incident to arrest context.

383 Md. at 596, 861 A.2d 62 (emphasis supplied).

Judge Battaglia also made it clear that the level of suspicion referred to was the reasonable articulable suspicion level established by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968):

Insofar as the standard to evaluate reasonableness, our jurisprudence is replete with the use of "reasonable, articulable suspicion" to determine the reasonableness of searches conducted in other contexts. See Ransome, 373 Md. at 106-07, 816 A.2d at 905 (applying the reasonable, articulable suspicion standard that the arrestee was concealing weapons or evidence to evaluate the reasonableness of a Terry frisk) [.]

Id. (emphasis supplied).

In Nieves, the underlying arrest had been for driving a truck without having a valid driver's license. It, therefore, contained no particularized suspicion that Nieves was in possession of contraband drugs. The strip search was held to have been unreasonable because of the lack of any particularization aimed at Nieves.

The circumstances surrounding another person cannot be imputed to the person who is the subject of the search because the inquiry must be particularized and objectively based upon the person suspected of carrying weapons or contraband.

383 Md. at 598, 861 A.2d 62 (emphasis supplied).

When Nieves v. State, 160 Md.App. 647, 666, 866 A.2d 870 (2004), was decided by this Court, Judge Thieme clearly stated the "individualized suspicion" standard:

A strip search is permissible only if the official has an individualized suspicion that an arrestee is hiding weapons or contraband. This suspicion must relate to the "individual," not a "category of offenders," such as drug users.

(Emphasis supplied).

Although the bottom line in Stokeling v. State, 189 Md.App. 653, 667, 985 A.2d 175 (2009), was that a strip search, albeit intended, did not ultimately take place, Judge Deborah Eyler's legal analysis utilized the "reasonable, articulable suspicion" standard.

Here, reasonable, articulable suspicion that the appellant was in possession of illegal narcotics in turn raised reasonable, articulable suspicion that he was in possession of a firearm.

(Emphasis supplied).

Stokeling is a good teaching vehicle. In contending with an extended chain of events, it cleanly wraps each stage of the analysis up before moving on to the next. Each distinct phase of the analysis, moreover, is placed under a clearly demarcated sub-heading. The reader does not have to guess where he is. Its strip search analysis dealt with a hypothetical strip search that aborted before it ever took place.

After Officer Webster and the appellant arrived in the booking area of the police station, but before the search began, the appellant announced that he had "weed" in his crotch area and that that probably was a violation of his parole. He then "reached down in the front of his pants and pulled out a clear baggie of suspected marijuana." (No strip search was performed.)

189 Md.App. at 659, 985 A.2d 175 (emphasis supplied). As Judge Eyler observed, 189 Md.App. at 673 n. 8, 985 A.2d 175:

We note that the appellant at times refers to his experience at the police station as a "strip search." . . . Here, the suppression hearing evidence established that no strip search was performed. The appellant reached in his pants, removed the baggie of marijuana, and turned it over to the police.

(Emphasis supplied).

For our present purposes, Stokeling is a textbook example of when a strip search (in this case a hypothetical one) is fully justified by the predicate search incident itself, with no supplemental particularization needing to be shown. All the particularization that was necessary was neatly contained within the probable cause for the arrest itself. In the Stokeling case, a lawful traffic stop was timely followed by a K-9 alert that drugs were probably in the vehicle that had been occupied by Stokeling, another passenger, and the driver. The ensuing Carroll Doctrine search of the vehicle revealed marijuana residue on the front-seat console, next to where Stokeling had been sitting. Stokeling was removed from the vehicle as part of a Terry stop, which was followed by a Terry frisk for weapons. It was in the course of that frisk that much of the probable cause developed for Stokeling's ultimate arrest.

Officer Fanning removed the appellant from the Chrysler and "patted him down for weapons. . . ." As he did so, he noticed that the appellant "was shaking quite a lot[.]" The officer asked him "why he was so nervous, why he was shaking." In response, the appellant said "it was cold out." Actually, the outside temperature was between 75 and 80 degrees.

. . . During this pat-down, Officer Fanning "noticed that there was something large" that felt to him "like a bag of something in [the appellant's] crotch area." Officer Fanning had some difficulty patting the appellant down in that area because the appellant "wouldn't spread his legs completely apart." Officer Fanning did not attempt to remove the bag at that time because, as he put it, "I wasn't positive and I'm not going to stick my hands down somebody's pants in front of the 7-Eleven unless I strongly believe it's a weapon or a gun, but I knew it not to be a gun or a knife." No weapons were found in the pat-down.

Id. at 658-59, 985 A.2d 175 (emphasis supplied).

Stokeling was subsequently arrested for the possession of drugs. Judge Eyler summarized the probable cause for that lawful warrantless arrest.

During the pat-dawn, the appellant resisted moving his legs apart to accommodate Officer Fanning's frisk for weapons. And, in the course of frisking the appellant's crotch area for weapons, the officer felt a large "bag of something." After the frisk, in the search of the Chrysler, Officer Fanning "observed marijuana residue in the middle console of the vehicle and the driver's side where you put — like the opening for maps. . . ." These facts, together with those we have recounted in considering the Terry frisk issue, elevate the stop of the appellant to one supported by probable cause.

Id. at 670, 985 A.2d 175 (emphasis supplied).

When the officers decided that a strip search was necessary, they moved the situs of the ensuing search incident to the station house to satisfy the modality concerns of Paulino v. State. This Court concluded that, had the strip search actually been carried out, it would have been fully justified.

By the time a strip search would have been carried out, however, the officers had probable cause to believe the appellant was in possession of drugs on his body based upon the total facts, including the presence of a bag of "something" in his crotch area.

Id. at 669-70, 985 A.2d 175 (emphasis supplied).

The particularization for the strip search and the probable cause for the arrest were one and the same.

It was fair for Officer Fanning to infer, from the presence of a large bag of something in the appellant's crotch area, which is not an ordinary means people use to carry goods, that the bag contained illegal contraband and that the appellant was attempting to conceal it by keeping his legs together during the pat-down.

Id. at 672, 985 A.2d 175 (emphasis supplied).

In terms of justifying a strip search, actual or hypothetical, that particular (and particularized) bundle of probable cause needed no supplementation. That does not mean, of course, that any search incident to an arrest for possession CDS would justify a strip search. It means only that that particular search incident, on the facts of that case, happened to do so.

As the national caselaw begins to gel with respect to strip searches, the presence of particularized suspicion as the required justification is gaining wide acceptance. See, e.g., Swain v. Spinney, 117 F.3d 1, 5 (1st Cir. 1997) (stating that police must have a "reasonable suspicion" that evidence will be found before conducting a strip search); Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 716 (9th Cir. 1989); Archuleta v. Wagner, 523 F.3d 1278, 1284 (10th Cir. 2008) ("We have articulated two primary concerns in determining whether a strip search is reasonable for the purposes of the Fourth Amendment: . . . whether there is a reasonable suspicion that the detainee has concealed weapons, drugs, or contraband."); Cuesta v. School Board of Miami-Dade County, 285 F.3d 962, 969-70 (11th Cir. 2002); Sarnicola v. County of Westchester, 229 F.Supp.2d 259, 270 (S.D.N.Y. 2002) ("[T]his Court recently opined that the Court of Appeals would apply the particularized reasonable suspicion test to [strip] searches of felony arrestees as well."); State v. Jenkins, 82 Conn.App. 111, 842 A.2d 1148, 1156 (2004) ("Accordingly, we adopt the reasonable suspicion standard for strip searches incident to a lawful felony arrest.").

Particularization in the Present Case

We have no difficulty in holding that the particularized suspicion standard for a strip search was satisfied in this case. The basic search was incident to the appellee's arrest for the possession of contraband drugs. Much of the necessary particularized suspicion that the appellee had drugs hidden on or in his person was already part and parcel of the probable cause for his arrest. It began with information from a "very reliable informant," whom the police had been using for five or six months and who had provided reliable information in other cases that had "led to numerous CDS arrests and search warrants." The informant reported that the appellee was selling crack cocaine out of a blue Audi in the Towson and Parkville area.

Another detective in the same unit stated that he had received a complaint two or three months earlier that a man named Harding was selling crack cocaine at a liquor store on Perring Parkway and McClean Boulevard. Both reports, significantly, identified the appellee as a seller of narcotics and not as a user. That is a factor in the hiding of one's stash on or in the body.

When the police first approached the appellee on September 10, 2009, he was in the neighborhood described in both reports and was driving the blue Audi precisely described, with license tag number, by the confidential informant. The appellee, moreover, was the only person in the car. The final catalyst for the appellee's arrest was the alert by the drug-sniffing canine, Aaron. Aaron alerted twice on the car. Once was at the driver's side front door. The appellee had been the driver. The second alert was on the driver's seat. That was where the appellee had just been sitting. At that point, the appellee was lawfully arrested.

The totality of circumstances entering into the probable cause for that arrest contained much particularized suspicion that the appellee may have been concealing drugs on his person. It is not necessary in this case, however, to make a decision on the basis of what was known to the police at that precise moment of his arrest. By way of supplementation, a routine search incident of the appellee's pockets produced $1,474 in cash. That was by no means dispositive that the appellee was selling drugs, but it was nonetheless compatible with that possibility.

By way of further supplementation, Detective Hearn testified at the suppression hearing that he "had reasonable suspicion [the appellee] had more CDS on him and we needed a further search." Adverting to his own experience, he stated:

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

In Moore v. State, supra, Judge Kenney told us that the "training, knowledge and experience" of veteran narcotics investigators should not be ignored, adding:

[i]t is well known in the law enforcement community, and probably to the public at large, that persons in possession of illegal drugs and associated paraphernalia often secrete them in body cavities to avoid detection.

(Emphasis supplied).

An additional and major supplemental factor was the process of elimination. The K-9 alert established probable cause that the appellee was in possession of CDS. We would acknowledge, however, that that was not necessarily particularized suspicion that the drugs were hidden on or in his body. The K-9 alert may only have established constructive possession and not direct possession. Had there been other passengers in the car, the appellee could have been in constructive possession or even joint constructive possession of drugs directly possessed by other passengers. In this case, however, there were no other passengers. The appellee, as driver, could have been in constructive possession of CDS in the glove compartment, in the trunk, on the backseat, or on the back window ledge. The appellee could even have been in direct possession of CDS in the pockets of his clothing, and particularized justification for a strip search might not be established until that less intrusive possibility had been eliminated.

In this case, however, the process of elimination moved inexorably forward toward particularization. The pinpointing of location by both K-9 alerts focused upon the appellee and away from the farther reaches of the car. The painstakingly Carroll Doctrine search of the Audi eliminated it as the locus of the CDS. The initial and routine search incident of the appellee eliminated his pockets as the sinister situs. The K-9 alert had established that CDS was, in all probability, some-where in the car proper or on the person of someone in the case. At each elimination of an alternate hiding place, the odds in favor of the appellee's body went up exponentially. As Judge Kenney told us in Moore v. State, supra:

When a search of the vehicle from which appellant was known to distribute drugs and a search of his outer clothing did not reveal any drugs, it followed that a strip search followed by a visual body cavity search were logical and reasonable next steps.

(Emphasis supplied). Q.E.D. We cannot imagine how more particularized the suspicion in this case could have been.

The Strip Search In a Nutshell

With scattered bits and pieces of caselaw and loose strands of analysis pulled in from all points of the compass, this small corner of the Fourth Amendment is rapidly degenerating into a hopeless analytic muddle. With the extraneous underbrush swept away, however, the picture becomes amazingly clear. We are dealing with a single phenomenon called a strip search. Starting with a good search incident, 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.

As our earlier mandate provided, the suppression order is reversed and the case is remanded for a trial on the merits.

SUPPRESSION ORDER REVERSED AND CASE REMANDED FOR TRIAL ON THE MERITS; COSTS TO BE PAID BY APPELLEE.

Judge GRAEFF concurs in the judgment only.