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Faith v. State

Court of Special Appeals of Maryland

August 2, 2019

SHAWNA LYNN FAITH
v.
STATE OF MARYLAND

          Circuit Court for Frederick County Crim. No. 10-K-17-060009

          Berger, Leahy, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Berger, J.

         Based 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 exposed[.]"

         This 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.

         BACKGROUND

         Before 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, 358 (2007).

         At 7:18 p.m. on April 21, 2017, Frederick County Sheriff's Deputy Douglas Storee[1]"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 Street[.]"

         Faith 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.

         While 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 light."

         Storee 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.

         The dog 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.

         Storee's 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 passenger.

         While 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.

         While 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[.]"

         According 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[.]"

         While 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 Storee.

         Sergeant 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 "female searches[.]"

         When 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 always systematic.
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 use.
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 entire highway.
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 the searches.
[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.
[PROSECUTOR]: Okay.
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 anything.
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.

(Emphasis added.)

         Turning 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 child?
[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 Yackovich.
[PROSECUTOR]: And where did you take Ms. Faith?
[SGT. ENSOR]: Behind Deputy Yackovich's canine car.[2]
[PROSECUTOR]: Okay.
[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.[ [3]

(Emphasis added.)

         The 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 conversation:

[PROSECUTOR]: And did you have a conversation with her?
[SGT. ENSOR]: Absolutely. I do with everyone.
[PROSECUTOR]: And what was the nature of the conversation?
[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 heroin.
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 increasingly nervous.
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.

(Emphasis added.)

         Next, 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 said what?
[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 conversation.
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 bag.
[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 ...

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