Legality of Under-Clothing Search Incident To Arrest Dependent on Circumstances

The 2011 New Mexico Supreme Court decision in State v. Williams addressed the legality of an under-clothing search incident to arrest. The Court found the search under the crimustances of the case reasonable under the 4th Amendment‘s and related cases on search and seizure.

This case involved a traffic stop. When the officer approached the stopped vehicle he saw through the window that the Defendant was “fumbling around” with an object. Based on the officer‘s training and experience he concluded that these actions were consistent with attempting to conceal contraband or searching for a weapon. When the Defendant exited the car his pants were unzipped and his belt was unbuckled.

Because the Defendant had an outstanding warrant the officer placed him under arrest and handcuffed him. The Defendant was placed between two police cars parked bumper to bumper on the side of the road. The arresting officer patted the Defendant down and shook the waistband of the Defendant‘s pants. The officer also pulled the waistband of his pants out about six inches and looked down and saw a plastic bag underneath the Defendant‘s underpants. With a gloved hand the officer reached down and removed the bag, the contents of the bag latter tested positive for illegal drugs.

The Defendant challenged the search as an illegal search and seizure under the 4th Amendment. The Court found that the search was not illegal and was warranted under the circumstances.

To determine the reasonableness of the officer‘s underclothing search the Court applied the factors previously set forth by the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979).

These factors require the Court to determine whether the justification, scope, manner and place of the search were reasonable in the context of the totality of the circumstances surrounding the underclothing roadside search.

In this case the Court concluded that each of these factors was met:

  1. The search was justified because the officer reasonably suspected that the Defendant was hiding a weapon or drugs in his underpants based on Defendant‘s movements within the vehicle and exiting the car with his pants unzipped and belt unbuckled.
  2. The scope of the search was narrowly tailored as the officer limited his underclothing search to the area in which he suspected the weapon or drugs to be hidden.
  3. The manner of the search was appropriate as only the Defendant and searching officer were able to see underneath the Defendant‘s clothing.
  4. The location of the search on the side of the road was appropriate as the Defendant was protected from public view by the police cars and the officers on the scene.

After concluding that the Bell factors supported the arresting officer‘s search the Court‘s final step was a balance of the public and private interests at stake. The Court concluded that the underclothing search protected the public interest in safety without unreasonably violating Defendant‘s privacy expectations under the Fourth Amendment.

While the Court found the undergarment search in this case to be reasonable the Court was careful to point out that invasive underclothing searches remain the exception. The opinion in this case is not to be construed as a blanket approval of underclothing searches as part of the typical search performed incident to arrest.

If you are charged with a crime, search and seizure issues are extremely important to your defense. Illegally seized evidence will not be allowed into court. The suppression of illegally obtained evidence is often the best line of defense. It is important to discuss these matters with an attorney experienced in search and seizure issues.


Related Reading:
Unlawful Search & Seizure Under the 4th Amendment
New Mexico Provides Greater Protection from Illegal Search & Seizure than Federal Law
Evidence Seized Under the Pretext of a Traffic Stop is Inadmissible
Courts Continue Assault on the Rights Against Unlawful Search & Seizure

Collins & Collins, P.C.
Albuquerque Attorneys

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