Newsbrief: Maryland Appeals Court Says Rectal Search Too Much 1/2/04

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The Maryland Court of Special Appeals has thrown out the drug conviction of a man subjected to a rectal strip search during a traffic stop. Carl Nieves had been sentenced to 10 years in prison for possession of crack cocaine with intent to distribute after police found small baggies of crack in his rectum.

Nieves was stopped after the car he was driving rolled back at an intersection and hit a police car. Nieves neither owned the vehicle nor had a valid driver's license. What he did have was a record of two previous drug arrests. Based on those arrests, Hagerstown police conducted a strip search and found the rocks.

That was too much for the appeals court, which noted that any search is an invasion of an individual's privacy, "... but a strip search procedure flies in the face of individual privacy rights. Strip searches, moreover, particularly intrude upon the individual's sanctity of his own body." The "extreme intrusiveness" of strip searches demands well-articulated reasonable suspicion a crime is being committed, wrote Judge Raymond Thieme. And the factors cited by Hagerstown police -- Nieves' prior arrests and the fact that the vehicle was owned by a suspected drug dealer -- did not rise to that level.

"Neither factor alone nor the combination of the two supports the conclusion that a reasonable suspicion was present to justify the strip search," the court said. "Where is the reasonable suspicion that drugs or other contraband are concealed in the particular place they decided to search? There is none," wrote Thieme.

Thieme added that the court was "troubled by the fact that, any time an individual has a prior drug history, that history alone may be used to justify a strip search of the individual upon subsequent arrests for minor offenses. Officers on nothing more than a 'fishing expedition' for narcotics without an articulable suspicion whatsoever will essentially be given carte blanche to violate an individual's privacy when arrested for a minor offense," the court noted.

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