Circuit Court for Frederick County Crim. No. 10-K-17-060009
Berger, Leahy, Harrell, Glenn T., Jr. (Senior Judge,
Specially Assigned), JJ.
on evidence recovered during a warrantless search at the
scene of a traffic stop, the Circuit Court for Frederick
County, in a bench trial, convicted Shawna Lynn Faith
("Faith"), appellant, of possessing cocaine with
the intent to distribute. Faith contends that the suppression
court erred in denying her request to exclude "the
evidence recovered from a warrantless strip search . . .
conducted on the side of Interstate 70 in the presence of two
civilians and other police officers in which her underwear
was pulled from her body and her vaginal area
appeal requires us to decide whether such a visual body
search, in which a female officer conducted a
"look-in" at Faith's genital area, was
reasonable under the Fourth Amendment, given the public
manner and location in which that search occurred. Because
the State failed to establish any exigent reason to perform
this inspection on the shoulder of a highway in the presence
of onlookers, instead of a more private setting that would
lessen the intrusion into Faith's personal privacy, we
shall reverse her conviction. In doing so, we revisit the
constitutional limits on sexually invasive searches like the
one at issue here.
trial, Faith moved to suppress both the controlled dangerous
substances ("CDS") recovered and the statements she
made during and after the challenged search, on the grounds
that (a) this was a "visual body cavity" search
that is unreasonable under constitutional standards, and (b)
her statements were obtained from a custodial interrogation
that occurred before she received Miranda
advisements. The suppression court denied the motion as to
the drug evidence but granted it as to Faith's statements
before she was Mirandized. Because the sole issue in this
appeal is whether the court erred in failing to suppress the
drug evidence, our focus is on the suppression record
summarized below. See Lewis v. State, 398 Md. 349,
p.m. on April 21, 2017, Frederick County Sheriff's Deputy
Douglas Storee"was doing traffic enforcement"
in a marked police vehicle "on Interstate 70 at Route
144, the New Market Inn," which is "at Exit
55." Storee observed Faith's vehicle "following
too closely, within a car and a half length" of another
vehicle traveling westbound at the 70 mph speed limit in
"moderate to heavy traffic[.]" When Storee
initiated a traffic stop, Faith's vehicle pulled over on
the right shoulder of the highway "at South
was in the driver's seat, a female companion was in the
passenger seat, and Faith's three-year-old son was in the
back seat. Faith was wearing cut-off jean shorts and a top
that did not cover her arms.
informing Faith of why he made the stop, Deputy Storee
noticed track marks on her arms, which "is common for
someone that's administering CDS intravenously." The
deputy asked where Faith was coming from. She answered that
they were returning home to Cumberland, after taking
"someone else's child down to Baltimore[.]"
Storee considered a five-hour round trip for that purpose to
be "odd." During the conversation, he observed that
the two women "seemed to be squinting, which appeared .
. . that maybe they were under the influence of drugs"
because "[s]ometimes eyes can be sensitive to
returned to his vehicle and requested a K-9 unit at the
scene. A marked cruiser occupied by Deputy Miller Yackovich
and K-9 Officer Ike arrived two minutes later, at 7:22 p.m.,
while Storee was still completing paperwork regarding the
stop. In accordance with standard procedures, the occupants
were asked to vacate the vehicle before the canine scan
began. After pat-down searches yielded no suspected weapons,
all three individuals were "walked back" from
Faith's car to Storee's vehicle.
alerted at the doors of Faith's car. Deputy Storee,
having called for an officer to "conduct a female
search[, ]" proceeded to search the vehicle.
search yielded drug paraphernalia and crack cocaine. A
"glass pipe" with burnt residue that Storee
believed to be crack cocaine was found under the driver's
seat. A "metal spoon" commonly used to mix and
inject heroin was "in the driver's compartment
door" with "a whitish-tannish residue" that
Storee, "based on [his] training and experience,"
believed to be heroin. In a purse "on the
floorboard" by the front passenger seat was "a bag
of crack cocaine[, ]" divided into Ziploc packets. That
purse contained identification belonging to Faith's
Storee was searching the vehicle, Faith, her companion, and
her child stood with Deputy Yackovich "on the bumper
along the passenger side of" Storee's vehicle, which
was "lined up behind the suspect vehicle."
Yackovich's cruiser was next in line behind Storee's
vehicle. Both police cars had their lights flashing
throughout the stop.
that vehicle search was underway, Sergeant Amanda Ensor
arrived, parking her marked vehicle, also with lights
flashing, as the fourth car lined up along the shoulder of
Interstate 70. Deputy Storee had done "multiple"
"female searches" with Sergeant Ensor "[i]n
the field[.]" The sergeant also had "done female
searches on [Deputy Yackovich's] traffic stops[.]"
to Yackovich, he did not know whether Sergeant Ensor
routinely "looks underneath females' clothes"
because "[t]he way she searches is up to her."
According to Storee, "typically we - especially if
it's a female, they'll take them to the rear of the
vehicle, away from everybody else." Storee explained
that during Sergeant Ensor's searches, he does not
"look because things happen . . . . from people doing
things on their own, not necessarily just because of a
search." Although he claimed that he "never
expect[s] someone's vagina is going to be exposed on the
side of the road[, ]" he acknowledged that in the past,
"things happened where people have pulled their clothes
off in their own excitement[.]"
it was still daylight outside, Sergeant Ensor searched Ms.
Faith. As moderate to heavy traffic passed on the highway,
and Faith's companion and son stood with Deputy Yackovich
at the front of Deputy Storee's vehicle, Sergeant Ensor
"took Ms. Faith back to the rear of" that vehicle,
a car-length away. According to Deputy Storee and Deputy
Yackovich, Faith was searched while standing "between
[Storee's] vehicle and Deputy Yackovich's vehicle[,
]" while "facing into oncoming traffic," with
her back to the male officers and vehicle passengers. During
the search, both deputies testified, they were "facing
away" from Faith because "obviously there's a
privacy issue." Yet Storee did "try to keep an eye
as best [he could] on Sergeant Ensor[.]" And Faith's
companion, who was holding her son, was next to Deputy
Ensor testified that her search of Ms. Faith was consistent
with her routine practice for roadside searches involving
suspected CDS. On direct, she recounted that during her
fifteen years as a police officer, she had been
"frequently called to conduct female searches." She
had "[s]everal hours at the academy in the detection of
deception and behavior" and "too many"
trainings "to name[, ]" "in addition to
conducting numerous arrests [herself] and assisting and
aiding with other arrests for deputies." She estimated
that she had conducted "[t]housands" of
asked about her typical approach to such a search, she
detailed her standard operating procedure, as follows:
[PROSECUTOR]: And what's your procedure when you arrive
on the scene to conduct a female search?
[SGT. ENSOR]: Systematically for an incident like
this where we're on a heroin interdiction operation and
we are specifically looking for criminal behavior.
I have a systematic approach to my searches.
Basically, I do take the person's - their feelings,
everything into account. Their reaction to me, their
behaviors, their statements, their inconsistencies in
stories; and my searches stem from there, but they're
I initially ask them if they have anything on them. I let
them know specifically if they do and I'm typically very
confident that they do have something on them that I will
find it. I ask if they have anything that's going to poke
me, stick me, anything like that. Sometimes they will be
honest and say yes. Others, they won't tell you. And in
this specific case, the defendant had obvious track marks on
her arms, which are consistent with intravenous needle drug
So my initial search, I start with the upper body and - let
me back up. I'll take - if it's a female, I take them
away from the male deputies and anyone else that's in the
vehicle, and I either position them behind the first police
vehicle w[h]ere the public can't see them or what I'm
doing in my search. And the other deputies can't see
them, because obviously I'm the only female on the scene.
They call me there for a reason. I'll search
their waistband. I'll ask them to unbutton their pants
and pull their pants away from them. At no point in time do I
touch them or their private areas. I ask them to pull their
pants away from them. If I don't see anything
obvious, that would be secreted or, you know, in their
underwear, I'll move up and I'll say I want you to
leave your shirt down so no one else can see you, but if
you're wearing a bra, pull it away from you.
And I will bend down and look up underneath their shirt. So
I'm not touching them. Again, I'm not touching them.
I've hand [sic] instances where women will hold one side
of their bra in and pull the other out, which would tell me
that they're hiding contraband in that area. And again,
that's where I find it.
In this specific situation, I pull her underwear, her
shorts out away from her.
[PROSECUTOR]: Okay, we'll get to that. But first of all,
so now when you ask them to do this, are you in any way
exposing their intimate parts?
[SGT. ENSOR]: No, absolutely not. I say pull them
away from you and I specifically say do not pull them down,
just pull them away from you, because I will be honest. I
have people on the side of the road that have been arrested
and they know the process of strip searches and being in
detention, and they have absolutely no problem flashing the
And I specifically say, don't pull your shirt up.
Leave it down. Just hold it away from you. And I'm going
to look up underneath your shirt to make sure you don't
have anything. And some will just expose everything and not -
you know, and it's no big deal to them. And others,
it's just like I said - I use a systematic approach for
[PROSECUTOR]: Okay, and do you at any point during this,
touch the female at all? When you're looking either -
like when you ask them to pull their waistband away or when
you're looking up underneath their bra?
[SGT. ENSOR]: No, in those two instances, absolutely not.
I don't touch them. In some instances, depending
on what they're wearing, if I feel like they haven't
- you know, they haven't pulled them out away from them
enough or that I couldn't really see if they have large
breasts, I will use the back of my hand to search the outside
of their breasts in the interior.
THE COURT: Do you - when you ask someone to pull their pants
out, do you see - you said nothing is exposed to anybody
else, but you can actually see?
[SGT. ENSOR]: I can see. And typically, the portion
that I can see is whether or not - I mean, I can see if they
have a pad on. I can see basically the front portion. If
they're pulling their underwear away from the, I can see
like the front of their vagina.
THE COURT: Right.
[SGT. ENSOR]: And obviously if something is exposed, I mean,
the strangest things. Like people say, I'm on my period.
Or you know, I don't have anything and this instance you
pull them away from you, don't pull them down. I
specifically say that - just pull them out away from your
body. And in this specific instance, there happened to be a
condom hanging out.
THE COURT: Okay, so basically when you said no one could see,
nobody else could, but you could, but that's the purpose,
you have to see because you're conducting the search?
[SGT. ENSOR]: Absolutely.
THE COURT: You ask them specifically to pull their
pants away from their body?
[SGT. ENSOR]: I do.
THE COURT: You look in there. You've taken them away from
the male deputies, the public and any other people that might
be - that privacy might be invaded -
[SGT. ENSOR]: Absolutely. I'm very respectful.
I'm a female. I know what it's like. It is, it's
an intrusion of their privacy. And if I wasn't 99 percent
sure and confident by their reactions and their behavior to
my questions and me interacting with them, that they were
concealing something on their person, then I would handle it
differently. But 99.9 percent of the times with
these searches, especially with the influx in heroin and
fentanyl coming through, I have found contraband on them.
And that's not looking in their private area.
That's something that's clearly exposed when they
hold their pants away from their body and not pull them down.
I move them - for their safety and well-being and their
privacy, I move them away for my officer safety and take
myself to another situation where I'm moving them behind
the vehicle and I'm by myself and leaving the other male
deputies up at the vehicle so that they can't see
THE COURT: Okay, so this is not a strip search?
[SGT. ENSOR]: No, absolutely no.
THE COURT: Okay, go ahead.
[PROSECUTOR]: And when you look down, when they pull
their pants away, can you see their vaginal cavity?
[SGT. ENSOR]: Not the cavity, no.
[PROSECUTOR]: And so now have you testified - have you been
qualified as an expert in female searches?
[SGT. ENSOR]: I have.
[PROSECUTOR]: In Frederick County?
[SGT. ENSOR]: Yes.
to the specifics surrounding the search of Ms. Faith, the
prosecutor elicited from Sergeant Ensor that she had observed
the traffic violation while she and Deputy Storee were both
positioned "in the crossover" on "I-70 facing
westbound traffic[.]" After receiving a call from Deputy
Storee to come perform "a female search," Sergeant
Ensor followed her routine practice by positioning Faith
between two police vehicles for the search, as follows:
[PROSECUTOR]: And what did you do when you did that search?
[SGT. ENSOR]: Again, my systematic search. I asked
her to come back behind Deputy Storee's car.
[PROSECUTOR]: And so when you asked her to come back behind
Deputy Storee's car, where was the passenger and the
[SGT. ENSOR]: They were still up at the vehicle,
because the child needed to be held by her friend. So they
were still up at her vehicle in that vicinity on the grass
area of the shoulder with Deputy Storee and Deputy
[PROSECUTOR]: And where did you take Ms. Faith?
[SGT. ENSOR]: Behind Deputy Yackovich's canine
[SGT. ENSOR]: And my car was behind his.
[PROSECUTOR]: And approximately how much space was between
the two vehicles, Deputy Storee's and Deputy Yackovich?
[SGT. ENSOR]: I would say maybe three feet.
[PROSECUTOR]: Okay. And did you take her - where did you take
her between the two vehicles?
[SGT. ENSOR]: Basically, right at the trunk. And I
had them - I will put my back to the other units and what
I'll do is I'll have them position themselves so that
their back is to traffic but they're also hidden by the
vehicle, so none of the other deputies or occupants in the
vehicle can see me do my search.
[PROSECUTOR]: Okay. Did you do that with Ms. Faith?
[SGT. ENSOR]: Yes.[ 
prosecutor then inquired about Sergeant Ensor's
statements to Ms. Faith before the search began, eliciting
the following description of her tactical approach to that
[PROSECUTOR]: And did you have a conversation with
[SGT. ENSOR]: Absolutely. I do with
[PROSECUTOR]: And what was the nature of the
[SGT. ENSOR]: Well, obviously, the track marks that
were present on her arms, she had a child in the
vehicle. I'm a mom myself, and one of my conversations
was about her taking her child down the road to Baltimore and
she explained that she knew she needed to get clean.
She had obvious track marks on her arms. I asked her
how long she's been using, because I genuinely care about
them and getting clean, we have a conversation about that
initially. And that's also my way of detecting their
behavior and whether or not they're nervous.
Inconsistencies in their stories with the passengers -
because they'll say the last exit that they passed. She
did not in this case, but they'll use reference points.
And the other passenger will have a completely different
story. So I use that, you know, that talking point to
build my suspicion, my reasonableness and talking to her
about getting clean and her using needles and addicted to
She was wearing extremely short shorts. And one of the things
I look for is whether or not their body is shaking. Because
typically when I'm asking personal questions about their
drug use, you know, they lie constantly to their families.
They lie to their friends about they're going. So when I
ask questions about their drug use, they start to become
So you know, I was watching her legs and her demeanor. And
when I started to ask the other questions about how long have
you been using, who got you hooked on that? Like how long?
And she said, I know, I need to quit. I and [sic] reached up
and looked at her arm. You know, very softly, like turned her
arm around to look at the track marks. And I noticed that her
arm was shaking really bad. Fast.
You know, but almost - you know, obviously not a cold shake,
but she was shaking. So that's when I told her
that I'm going to search you. I've been doing this
for 15 years, and if you're hiding something on your
person or in your vagina - I said that to her - or in your
vagina, I will find it.
And it's a tactic that I use to get them to talk
to me about, you know, what's going on, what they might
have on them. And she still - she still denied the fact that
she had anything on her.
the prosecutor focused on Sergeant Ensor's inspection of
Ms. Faith's vaginal area, as follows:
[PROSECUTOR]: Okay. And so what did you do next?
[SGT. ENSOR]: That's where I start my systematic
search. And I start with her shorts, not
pants at the time - and I'll say unbutton your shorts.
Don't pull them down. I'm very specific. Unbutton
your shorts, don't pull them down. I want you to pull
them away from your body. And when she did that is when I saw
the condom protruding.
[PROSECUTOR]: Okay. And what did you do at that point? Did
you touch her?
[SGT. ENSOR]: No. I looked at her and I said, come
on. You know, like - I saw it, come on. And we actually had
an intelligible conversation about the fact that, you know,
she said it's not mine. I don't do
coke. Dealer is in
Cumberland. I carry it back for them. They give me
heroin. It was an honest conversation that we had
about what she was holding. I didn't touch her. I asked
her to walk back up to the car and I asked Deputy Yackovich
to grab me a bag.
[PROSECUTOR]: Okay, and when she told you about the - going
up to Cumberland and all that, was that in response to a
question you asked?
[SGT. ENSOR]: No. It was conversation because she
knew that I saw it.
[PROSECUTOR]: So you looked at her and said come on, and she
[SGT. ENSOR]: Right, because I said, tell me if you
have anything on you. I'm going to find it. And as soon
as she pulled her pants away from her body and her underwear,
there was a clear condom that would be the shaft portion of
the condom hanging out like down in her underwear. It was
very obvious. So of course I looked at her, and I said, come
on. Like - you just lied to me. I see it. And then it was a
It wasn't me questioning her - whose is it? Where did you
get it? You know, I didn't ask her any questions because
I knew it was there. I saw it. So I asked Deputy Yackovich
for a bag and she elected not to go back to be
stripped searched and said no, I can just get it
myself. Fully clothes [sic]. Shorts up, underwear
up. She said she could retrieve it herself and did so, with
only me watching her after Deputy Yackovich handed me the
[PROSECUTOR]: And did you offer her to go back to the
Law Enforcement Center to retrieve it?
[SGT. ENSOR]: Yes.
[PROSECUTOR]: And what did she say?
[SGT. ENSOR]: She said no, I can get it myself.
I'll get it out.
[PROSECUTOR]: So where did she got [sic] to retrieve it?
[SGT. ENSOR]: Obviously that needed to be a little
bit - a little more private so I wouldn't have her like
squat down behind the vehicle to get it, we walked back up to
her vehicle and she saw [sic] on the edge of the passenger
seat. And again, the deputies were not around when she was
retrieving it. I ensured that they weren't watching her
and nobody was looking at her, not even her friend ...