Kentucky

CRIMINAL: Search and seizure; strip search -- MARSHALL V. COM. (COA 11/7/2008)

By Michael Stevens

MARSHALL V. COM.
CRIMINAL:  Search and seizure; strip search
2007-CA-002518
PUBLISHED: AFFIRMING IN PART, VACATING IN PART, AND REMANDING
PANEL:  COMBS PRESIDING; STUMBO, GUIDUGLI CONCUR
FAYETTE CIRCUIT COURT
DATE RENDERED: 11/7/2008

Marshall appeals an order of the trial court denying a motion to suppress evidence that was obtained through a strip search. He also contends that he should have received a competency hearing. CA held that the search of Marshall exceeded the legitimate scope of a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) frisk and that it was, therefore, unreasonable. Using the Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) factors, CA summarized the sequence of events of the search in this case. The police thought that there was an outstanding warrant for traffic offenses for Marshall?s arrest. When they found him, his hands were inside his pants. A witness was yelling, ?It?s in his crotch.? The police handcuffed Marshall and determined that he did not have a weapon on his body. Even though Officer Schwartz detected an unknown object under Marshall?s clothes, it was not immediately apparent by touch alone that the object was contraband. Because of the handcuffs, Marshall could not have destroyed the evidence. In fact, Marshall was not able to grab the bag of crack cocaine until the officers undressed him. They could have placed him under arrest for the outstanding warrant and then have proceeded to conduct such an intrusive search in a controlled environment. CA found no error in the court?s failure to order a competency evaluation and hearing.

Digested by Scott C. Byrd www.olginandbyrd.com

Full post as published by Kentucky Cases on December 23, 2008 (boomark / email).