Fourth Amendment

Roadside Crotch Search Was Unconstitutional, Indiana Appeals Court Rules

The court says a marijuana odor did not justify reaching into a woman's underwear during a routine traffic stop.

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Last week the Indiana Court of Appeals ruled that an Indianapolis police officer exceeded the limits imposed by the Fourth Amendment when she reached inside a woman's underwear to retrieve a blunt during a routine traffic stop. The logic of the decision suggests that victims of even more invasive public pot searches in Texas have a strong case that police violated their constitutional rights along with their privacy and dignity.

Taccasia Porter was a passenger in a car that Officer Tiffany Wren pulled over on Lafayette Road in Indianapolis last October for an unspecified headlight violation. Wren testified that she smelled marijuana as she approached the car. She patted Porter down and looked in her pockets but found no contraband or weapons. She searched the vehicle and likewise turned up nothing.

Returning to Porter, Wren again smelled "a very, very strong odor of raw marijuana coming from [her] person." She searched Porter again, this time reaching inside her pants. Wrens said the "jeans were really tight so that I recall I had to really, like pull her jeans out in order to get my hand in there." Feeling an object inside Porter's underwear with the back of her hand, Wren reached inside the underwear and pulled out a cigar stuffed with marijuana from "the crotch area."

Porter was convicted of misdemeanor marijuana possession and sentenced to six months in jail, with all but two days suspended. She appealed her conviction, arguing that the evidence against her should have been excluded because it was obtained illegally.

The appeals court agreed that the marijuana odor supplied probable cause for an arrest, justifying a pat-down aimed at discovering weapons that could be used to harm police or contraband that might otherwise be hidden, discarded, destroyed. But the court said the roadside invasion of Porter's private parts went too far.

The U.S. Supreme Court has said determining whether a search qualifies as reasonable under the Fourth Amendment requires "a balancing of the need for a particular search against the invasion of personal rights the search entails." In this case, Wren never argued that the search was justified by officer safety or the need to preserve evidence, and she gave no indication that she took steps to minimize Porter's public humiliation.

"Officer Wren pulled Porter's jeans forcibly away from her body and inserted her hand inside the pants," the appeals court notes. "She then inserted her hand inside of Porter's underwear. All of this took place in a public area on the side of a road, with no evidence that any precautions were taken to protect Porter's privacy from pedestrian or vehicular passersby or the two men on the scene [the driver of the car and another police officer]. There is also no evidence that Officer Wren took sanitary precautions, such as using plastic gloves to conduct the search."

If this search was unconstitutional, so was the one endured by Charnesia Corley in 2015. Corley, who filed a federal lawsuit over the incident this month, was pulled over for running a stop sign and soon found herself sexually assaulted by two Harris County, Texas, sheriff's deputies, who held her down for more than 10 minutes in a gas station parking lot, probing her anus and vagina for marijuana. Police say they found 0.02 ounce.

In 2015 I described three other Texas traffic stops in which five women were subjected to similar pot-seeking invasions, all of them fruitless. Searches like these attracted so much attention that the Texas legislature explicitly outlawed them, requiring a warrant for any body cavity search conducted during a traffic stop. But it is clear from Wren's treatment of Porter that police still think nothing of inflicting outrageous indignities on people suspected of violating the government's pharmacological taboos, even when the target is a tiny amount of a drug that has been legalized for medical or recreational use by 29 states.

[Thanks to Marc Sandhaus for the tip.]

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