ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
MICHAEL G. MOORE
Indianapolis, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
ANDRA THOMPSON, )
vs. ) No. 49A05-0405-CR-286
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William Young, Judge
Cause No. 49G20-0306-FC-95069
April 7, 2005
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Andra Thompson appeals his conviction for Possession of Cocaine, as a Class C
felony, following a bench trial, and presents a single issue for review:
whether the trial court abused its discretion when it admitted into evidence cocaine
officers recovered from between Thompsons buttocks during a strip search incident to his
arrest, which was filmed by a civilian camerawoman.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
On June 10, 2003, Indianapolis Police Officers Pamela Lee and David Gard conducted
an undercover drug investigation from a motel room on the east side of
Indianapolis. Officer Gard had information that a man named Goldie, who was
later identified as Thompson, was dealing cocaine in the area. Transcript at
9. Officer Lee posed as a prostitute and crack addict and made
several attempts to telephone Thompson in search of cocaine. Eventually, Officer Lee
left a call-back number on Thompsons pager, and Thompson returned her call.
Officer Lee told him that she wanted $100 worth of cocaine and that,
if he brought more, she would make it worth his while. Id.
at 11. Thompson then stated that he was on his way.
Later, there was a knock on the motel door, and Officer Lee looked
through the peephole and asked who was there. Thompson replied, Its Goldie.
Id. at 12. At that point, Officer Lee opened the door,
and other officers grabbed Thompson. Id. at 13. Officer Gard placed
Thompson under arrest for attempting to deal cocaine.
Officer Gard then took Thompson into the bathroom to search him. Officer
Gard pulled down Thomspons pants and ordered him to bend over. The
officer discovered a package of cocaine in between Thompsons buttocks.
See footnote Officer Gard
had to wait for Officer Lee to bring him a pair of rubber
gloves so that he could remove the package of cocaine. Officers later
determined that the cocaine weighed more than three grams.
Throughout these events, a civilian camerawoman from the Oxygen Network was inside the
motel room filming for a show entitled Women and the Badge.
at 41. The camerawoman had no affiliation with law enforcement and did
not aid in the arrest or search. Rather, the camerawoman filmed Thompsons
arrest and portions of the search. In particular, the camerawoman filmed Thompson
with his buttocks exposed, bent over in the motel bathroom while Officer Gard
awaited the rubber gloves. At one point, the camerawoman zoomed in on
the cocaine located between his buttocks.
The State charged Thompson with Class C felony possession of cocaine. Thompson
moved to suppress the cocaine recovered during the search, and the trial court
denied the motion. At his bench trial, Thompson renewed his objection to
the admission of the cocaine, and the court overruled that objection. The
videotape of Thompsons arrest and search that the camerawoman filmed was admitted into
evidence at trial. The court found Thompson guilty as charged, entered judgment
of conviction, and sentenced him to six years executed. Thompson now appeals.
DISCUSSION AND DECISION
Standard of Review
Although Thompson originally challenged the admission of the cocaine through a motion to
suppress, he appeals following a completed trial and challenges the admission of such
evidence at trial. Thus, the issue is . . . appropriately framed
as whether the trial court abused its discretion by admitting the evidence at
trial. Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003).
We have indicated that our standard of review of rulings on the
admissibility of evidence is essentially the same whether the challenge is made by
a pre-trial motion to suppress or by trial objection. Ackerman v. State,
774 N.E.2d 970, 974-75 (Ind. Ct. App. 2002), trans. denied. We do
not reweigh the evidence, and we consider conflicting evidence most favorable to the
trial courts ruling. Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct.
App. 2000), trans. denied. However, we must also consider the uncontested evidence
favorable to the defendant. See id.
Reasonableness of the Search
The lawfulness of a strip search depends on whether the circumstances reasonably justify
such an intrusive invasion of privacy. United States v. Cofield, 391 F.3d
334, 336 (1st Cir. 2004) (citing Bell v. Wolfish, 441 U.S. 520, 559
(1979)). As the United States Supreme Court explained in Bell, 441 U.S.
at 559, when it addressed the reasonableness of strip searches of pre-trial detainees:
The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of
the need for the particular search against the invasion of personal rights that
the search entails. Courts must consider the scope of the particular intrusion,
the manner in which it is conducted, the justification for initiating it, and
the place in which it is conducted.
Further, our supreme court explained in Edwards v. State, 759 N.E.2d 626, 629
The United States Supreme Court has held that once a lawful arrest has
been made, authorities may conduct a full search of the arrestee for weapons
or concealed evidence. No additional probable cause for the search is required,
and the search incident to arrest may involve a relatively extensive exploration of
the person. Nonetheless, such a search would be unreasonable, and therefore a
violation of the Fourth Amendment standard, if it were extreme or patently abusive.
(Citations omitted). In Edwards, the court held that routine, warrantless strip searches
of misdemeanor arrestees, even when incident to lawful arrests, are unreasonable under both
Article I, Section 11 of the Indiana Constitution and the Fourth Amendment.
Id. In so holding, the court explained that there may be misdemeanor
charges for which a body search is appropriate because of the reasonable likelihood
of discovery of evidence, but that the crime the defendant in that case
was charged with, namely, false informing, is not such a crime. Id.
This court has also addressed whether a strip search was reasonable under the
Fourth Amendment. In Frye v. State, 757 N.E.2d 684, 688-89 (Ind. Ct.
App. 2001), trans. denied, cert. denied, we concluded that an officer who conducted
a strip search on a defendant who was suspected of having engaged in
illegal drug activity was reasonable under the Fourth Amendment. Specifically, in Frye,
officers were observing several houses that they suspected were involved in drug activity.
Id. at 687. After observing what appeared to be multiple drug
transactions in front of one house, the officers executed a traffic stop of
an individual who had visited the home. That person admitted that he
had purchased cocaine from a person in the home and identified Frye as
the person who had sold it to him. The officers returned to
the home and saw Frye standing in the front yard. As the
officers approached and identified themselves, Frye took off running toward the house.
One of the officers ordered Frye to stop, and he refused. Officers
followed Frye inside the home, where they observed marijuana, pipes, and other drug
paraphernalia. When the officers eventually apprehended Frye, they arrested him for fleeing
a police officer. The officers then conducted a strip search of Frye
and found a baggie of cocaine in between his buttocks. But as
one officer waited for someone to bring him rubber gloves so that he
could retrieve the baggie, Frye grabbed the cocaine and placed it inside his
mouth. Following a struggle, an officer retrieved the cocaine. Frye was
subsequently charged and convicted of possession of cocaine, among other offenses. Id.
In concluding that the strip search of Frye was reasonable, we determined in
part that Fryes arrest alone did not justify the strip search because there
must be a sense of proportionality between the offense for which the individual
is arrested and the scope of the search. Id. at 690.
And because the officers arrested Frye for fleeing a police officer, the arrest
by itself would not justify a strip search. But we also determined
that additional facts were present that rendered the strip search permissible, namely, the
officers discovery of illegal drugs and drug paraphernalia lying in plain view around
the house into which Frye fled. That evidence, along with the circumstances
that served as the basis for the investigative stop in the first place,
provided the officers with reasonable suspicion that Frye was in possession of contraband.
Thus, we concluded that a more expansive search commensurate with the nature
of that reasonable suspicion was appropriate. Id.
Here, the officers arrested Thompson for attempting to deal cocaine, which is a
felony. Once Thompson was placed under arrest, the officers were authorized to
search him incident to his arrest. See Edwards, 759 N.E.2d at 629.
In addition, it was more than reasonable for the officers to believe
that Thompson had cocaine somewhere on his person because he had told Officer
Lee that he was on his way to the motel with the crack
cocaine she had requested. Both of those circumstances support a conclusion that
the strip search of Thompson was reasonable. But those are not the
only circumstances relevant to our determination. Indeed, Thompson asserts that the search
was unreasonable because a civilian camerawoman with no affiliation with law enforcement was
present during and filmed the strip search. We must agree.
Initially, Thompson relies heavily on Wilson v. Layne, 526 U.S. 603 (1999), which
involved a civil action in which homeowners Charles and Geraldine Wilson sued several
Deputy United States Marshals and other law enforcement officials (the officers) for an
alleged Fourth Amendment violation during the officers execution of an arrest warrant at
their home. Pursuant to a national fugitive apprehension program called Operation Gunsmoke,
the marshals had obtained multiple arrest warrants for the Wilsons son, Dominic, who
was wanted by law enforcement officials for several felony probation violations. See
id. at 606. Although the warrants did not mention that media would
be present, a reporter and a photographer from the Washington Post accompanied the
officers when they executed the warrants. Id. at 607. The Court
in Wilson explained the facts relevant to the officers execution of the warrants
At around 6:45 a.m., the officers, with media representatives in tow, entered the
dwelling at 909 North Stone Street Avenue in the Lincoln Park neighborhood of
Rockville. Petitioners Charles and Geraldine Wilson were still in bed when they
heard the officers enter the home. Petitioner Charles Wilson, dressed only in
a pair of briefs, ran into the living room to investigate. Discovering
at least five men in street clothes with guns in his living room,
he angrily demanded that they state their business, and repeatedly cursed the officers.
Believing him to be an angry Dominic Wilson, the officers quickly subdued
him on the floor. Geraldine Wilson next entered the living room to
investigate, wearing only a nightgown. She observed her husband being restrained by
the armed officers.
When their protective sweep was completed, the officers learned that Dominic Wilson was
not in the house, and they departed. During the time that the
officers were in the home, the Washington Post photographer took numerous pictures.
The print reporter was also apparently in the living room observing the confrontation
between the police and Charles Wilson. At no time, however, were the
reporters involved in the execution of the arrest warrant[s].
Id. at 607-08. Based on those facts, the Supreme Court held that
it is a violation of the Fourth Amendment for police to bring members
of the media or other third parties into a home during the execution
of a warrant when the presence of the third parties in the home
was not in aid of the execution of the warrant. Id. at
Thompson also directs us to United States v. Hendrixson, 234 F.3d 494 (11th
Cir. 2000), cert. denied. In that case, the United States Court of
Appeals for the Eleventh Circuit applied Wilson and held that the Fourth Amendment
rights of one of three co-defendants, Mable Stephens, were violated when a television
reporter accompanied police officers into her home to execute a search warrant.
234 F.3d at 496. The court concluded that despite the Fourth Amendment
violation, however, suppression of the evidence found during the search was not required
under the federal exclusionary rule established in United States v. Leon, 468 U.S.
897 (1984), because the officers, not the media representative, discovered the contraband.
See id. at 496-97.
We agree with the State that
Wilson and Hendrixson are distinguishable because those
cases involved media representatives who accompanied police officers into a private residence to
execute a warrant. Here, the site of Thompsons arrest and search was
a motel room, not his private residence. And Thompson makes no assertion
that he had any privacy interest in the motel room.
Even though Wilson and Hendrixson are distinguishable on their facts and, thus, do
not control the outcome here, we must nevertheless consider all of the circumstances
when determining whether the strip search of Thompson was reasonable. See Bell,
441 U.S. at 559 (stating in determining reasonableness of search, courts must consider
scope of intrusion, manner of search, justification for search, and place conducted).
The circumstances of this case include that a camerawoman with no affiliation with
law enforcement was present during the search and that she filmed portions of
the search. Indeed, our review of the videotape reveals that after Officer
Gard had handcuffed Thompson and taken him into the motel bathroom, Officer Lee
told the camerawoman, You dont want to film that. Officer Lee then
explained on camera that the other officers would be looking for the crack
that they [drug dealers] usually keep in the crack. Thereafter, when Officer
Lee went to retrieve gloves, the camerawoman stood at the threshold of the
bathroom door and filmed Thompson, who was bent over with his pants pulled
down and his buttocks exposed. Officer Gard was standing next to Thompson
holding him down. Then, the camerawoman zoomed in on Thompsons bare buttocks,
which revealed a white substance between his buttocks. The camerawoman zoomed back,
and when Officer Lee arrived, officers stood in front of the camera as
Officer Gard recovered the cocaine.
In determining that under the totality of the circumstances the search in this
case was unreasonable, we find United States v. Williams, 209 F.3d 940 (7th
Cir. 2000), to be instructive. In that case, following a routine traffic
stop of the defendant, officers asked for permission to search the vehicle.
The defendant refused to consent to a search of his car, but the
officers asked him and his passenger to exit the car because they acted
nervous and began fidgeting. Id. at 941. Once outside the car,
the defendant consented to a pat down search, during which one of the
officers felt a hard object between the defendants buttocks. As the officer
placed a rubber glove on his hand, the defendant fled. The officers
chased and apprehended him. One officer then reached into the back of
the defendants pants, under his undershorts, and removed a plastic bag from the
buttocks area which contained three rocks of crack cocaine. The defendant moved
to suppress the cocaine, and the district court denied his motion. On
appeal, the Seventh Circuit evaluated the reasonableness of the search incident to arrest
and noted that the defendant was never disrobed or exposed to the public
and that [t]he search occurred at night, away from traffic and neither officer
saw anyone in the vicinity. Id. at 944. The court held
that under those circumstances, the search was reasonable.
Similarly, in Cofield, 391 F.3d at 336, undercover officers conducted a strip search
of a defendant incident to his arrest for drug and other offenses.
After the officers conducted a pat down search on the street which revealed
a bag of heroin, the officers decided to transport the defendant to a
nearby precinct. En route, the officers noticed that the defendant was acting
nervous. The defendant also asked whether the officers would . . .
be mad if he ran. Id. As a result, officers decided
to conduct a strip search at the precinct. The search was conducted
in a hallway near the booking desk, and there were no other people
under arrest there at that time. The police had the defendant face
the wall and drop his shorts and underwear. The officers found a
gun hidden inside the defendants underwear. The defendant moved to suppress the
evidence recovered during the strip search, and the district court denied his motion.
On appeal, the First Circuit affirmed the district court and, regarding the
strip search, stated in relevant part:
[T]he strip search was conducted in a professional manner with no more intrusion
than necessary to accomplish the proper law enforcement purpose. The officers did
not require [the defendant] to assume humiliating poses, expose himself in an unnecessarily
public place or to members of the opposite sex, remain exposed for unreasonable
durations, or endure degradation or ridicule. Nor was there any suggestion of
any abusive or unprofessional motivation on the part of the officers.
Id. at 337.
The strip search of Thompson differed from the strip searches in Williams and
Cofield. Thompson was required to bend over with his bare buttocks exposed
and raised in the air, while the officers allowed the camerawoman to observe
and film him in that position, for a program to be aired on
national television. As we have stated, the camerawoman stood at the threshold
of the motel bathroom door and filmed Thompsons exposed buttocks as Officer Gard
stood over him while Officer Lee walked outside to retrieve rubber gloves.
During that time, the camerawoman zoomed in on Thompsons bare buttocks for several
Where should the media line be drawn? We think the line should
be drawn here. Otherwise, the next case might well involve a civilian
filming or photographing a strip search incident to arrest where the contraband is
found and removed from an anal or vaginal cavity. Where, as here,
the search occurs in a private place and the police are in complete
control of the circumstances surrounding the search, we can find no justification for
law enforcement to allow a civilian to film or photograph the strip search
of a suspect naked below the waist. We conclude that, under these
circumstances, the strip search was not only unprofessional but was unreasonable under the
Fourth Amendment. We will not sanction such conduct, which demeans the suspect,
who is presumed innocent until a trier of fact finds otherwise, and degrades
the entire legal process.
Still, the State asserts that even if the search is unconstitutional, the cocaine
recovered from Thompsons buttocks is admissible under the good faith exception to the
exclusionary rule enunciated in Leon, 468 U.S. at 897. In support, the
State relies on Hendrixson, 234 F.3d at 496-97, where the Eleventh Circuit held
that despite a Fourth Amendment violation due to the presence of media at
the defendants home during the execution of a search warrant, the evidence the
officers recovered at the home was nevertheless admissible under Leon. But the
State ignores a key difference between the search in this case and the
searches in Hendrixson and Leon, namely, that the search of Thompson was incident
to his arrest, and not the result of a warrant.
Indeed, the Ninth Circuit rejected a similar attempt by the government to suggest
that a good-faith exception applies to all illegal searches. United States v.
Whiting, 781 F.2d 692, 698 (9th Cir. 1986). That court observed:
The Leon exception . . . is clearly limited to warrants invalidated for
lack of probable cause and does not create the broad good faith exception
the government suggests. The Leon rule should therefore not be applied to
invalid warrantless searches.
Id. (citations omitted).
Here, again, the officers had not obtained a warrant, but searched Thompson incident
to his arrest. Unlike in cases where a warrant has issued, the
officers in this case were not relying on a probable cause determination made
by a neutral and detached magistrate. To the contrary, the officers were
in complete control of the circumstances surrounding the strip search, and they permitted
the civilian camerawoman to film Thompson naked below the waist.
We hold that the good faith exception to the exclusionary rule does not
apply here. See id. Thus, we conclude that the trial court
abused its discretion when it admitted the cocaine recovered from Thompsons buttocks into
evidence. We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
KIRSCH, C.J., and VAIDIK, J., concur.
Footnote: To be clear, Officer Gard testified that he recovered the
package of cocaine from Thompsons buttocks. Transcript at 34. The officer
also confirmed that during the search he spread [Thompsons] buttocks to look for
cocaine. Id. at 42. Our review of the videotape of Thompsons
arrest and search confirm that the cocaine was located between his buttocks.
Thus, Thompsons references in his brief to a search of his anus and
his anal cavity are not supported by the record. See Brief of
Appellant at 3, 8.
The Court in
Wilson did not address whether the exclusionary
rule would apply to any evidence discovered or developed by the media representatives.
526 U.S. at 614 n.2.