Strip search of ‘fidgety’ arrestee that found cocaine splits COA

A woman who was strip searched while being processed at the Marion County Jail, turning up a small packet of cocaine on her breast, lost her drug-conviction appeal Friday. The newest member of the Indiana Court of Appeals dissented, warning the majority’s holding in the case “would render per se reasonable a strip search of every person being processed for a substance offense, no matter how minor.”

The case of Stephanie J. Reagan v. State of Indiana, 20A-CR-907, began the evening of June 8, 2018, when Stephanie Reagan was driving a vehicle that collided with a vehicle driven by off-duty Deputy Darrius Austin of the Marion County Sheriff’s Office. Austin and responding officers smelled marijuana coming from Reagan’s vehicle and noticed a blunt on the floor.

Reagan was arrested on suspicion of operating a vehicle while intoxicated. She was given a pat-down search at the scene, and after she was transported to a hospital for a blood draw, she was taken to the Arrestee Processing Center at the Marion County Jail. There, Deputy Joana Jimenez conducted a strip search after noticing Reagan was “fidgety,” shaking her leg, trying to engage in small talk and looking around the room, according to the record.

“During the ensuing strip search of Reagan, Deputy Jimenez found a small baggie stuck to Reagan’s breast. Reagan asked if Deputy Jimenez could ‘get rid of it’ and Deputy Jimenez said no. … The baggie contained a powdery substance that Deputy Jimenez suspected was cocaine,” which lab tests confirmed.

The evidence was admitted over continued defense objections. Reagan ultimately was convicted of Level 6 felony possession of cocaine and Class C misdemeanor possession of marijuana, but jurors in Marion Superior Court found her not guilty of OWI.

A divided panel of the Indiana Court of Appeals affirmed Friday. The majority held that though the search involved a high degree of intrusion, law enforcement needs balanced in favor of permitting the strip search.

“(L)aw enforcement had a high degree of suspicion and a strong need to protect Reagan and others in custody. On balance, we conclude that the search was reasonable under the totality of the circumstances,” Judge L. Mark Bailey wrote for the majority joined by Judge Nancy Vaidik. “We therefore conclude that the search did not run afoul of Article 1, Section 11 of the Indiana Constitution. Thus, the court did not abuse its discretion in admitting evidence obtained from the strip search.”

But Judge Leanna Weissmann noted the evidence in the case was found based on Jimenez’s arbitrary “feeling” that Reagan may have been in possession of contraband.

Jimenez “testified that the processing center received more than 3,000 detainees in January 2020. … (H)er testimony reasonably suggests she subjects to strip searches at least thirty to sixty percent of the OVWI detainees she processes in Marion County. … If Deputy Jimenez had a ‘feeling’, she seemingly could strip search the detainee, regardless of the underlying circumstances.

“… The only additional evidence available to Deputy Jimenez to determine whether to execute a strip search was her knowledge that Reagan had been arrested for OVWI. Such knowledge likewise is not enough, alone or in combination with Deputy Jimenez’s ‘feeling,’ to justify a strip search,” Weissmann wrote in dissent. “To say otherwise would render per se reasonable a strip search of every person being processed for a substance offense, no matter how minor. Our Supreme Court made clear in [Edwards v. State, 759 N.E.2d 626 (Ind. 2001)] that such an approach contravenes article I, section 11. … Based on this record, I find the degree of concern or suspicion that the arrestee is secreting contraband was low.”

The majority, however, held that “(W)here — as here — there is a high degree of suspicion that an arrestee is concealing contraband, law enforcement has a strong need to search for contraband during the intake procedures” for the safety of the offender and that jail population, among other things. It noted that while Edwards ruled the routine practice of subjecting all misdemeanor arrestees to a warrantless strip search, it permitted them on the basis of reasonable suspicion.

Weissmann in dissent acknowledged law enforcement “undeniably” has a strong interest in protecting inmates and keeping jails free from contraband. “In this case, however, I am not persuaded the State established law enforcement needs for a strip search were significant. This is particularly true in light of the seemingly indiscriminate manner in which law enforcement selected Reagan and other arrestees for strip searches.”

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