Monday, December 29, 2003

ANNAPOLIS (AP) — The Court of Special Appeals has reversed the drug conviction of Chris Nieves, ruling that police obtained evidence during an unconstitutional strip-search of the Washington County man.

Mr. Nieves had been sentenced to 10 years in prison after bags of crack cocaine were found in his rectum.

A unanimous ruling last week by a three-judge panel said 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.”

Comparing strip-searches to “a pebble in the shoe of the judiciary,” the opinion by Judge Raymond Thieme said courts everywhere have struggled with the issue of what justifies the “extreme intrusiveness” of a strip-search.

Hagerstown police officers stopped Mr. Nieves on Jan. 22, 2002, after the Toyota truck he was driving rolled back at an intersection and hit a police car. Officers determined he didn’t have a valid driver’s license and that the truck he was driving didn’t belong to him.

A decision to conduct a strip-search was made based on two previous drug-related arrests. During the search, officers found two small plastic bags, each containing smaller individually wrapped bags of crack cocaine, concealed in Mr. Nieves’ rectum.

The appeals court said the strip-search of Mr. Nieves, whom it described as “a minor offender who was not inherently dangerous,” was based on police knowledge of his drug history and the fact that he was driving a vehicle owned by a woman suspected of narcotics dealing.

“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,” the opinion said.

Judge Thieme said the judges were “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 opinion said.

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