                                                                             FILED
                                                                        Jul 29 2016, 8:43 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Gregory F. Zoeller                                         Patricia Caress McMath
      Attorney General of Indiana                                Marion County Public
      Eric P. Babbs                                              Defender Agency
      Deputy Attorney General                                    Indianapolis, Indiana
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          July 29, 2016
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 49A04-1512-CR-2173
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Dejon Pitchford,                                           The Honorable John M. Christ,
      Appellee-Defendant                                         Commissioner
                                                                 Trial Court Cause No.
                                                                 49G14-1505-F6-017468



      Mathias, Judge.


[1]   The State of Indiana appeals the order of the Marion Superior Court granting a

      motion filed by Dejon Pitchford (“Pitchford”) to suppress evidence discovered

      as a result of a warrantless strip search of Pitchford in jail. The State claims that

      the trial court erred in concluding that the search of Pitchford was

      impermissible under Article 1, Section 11 of the Indiana Constitution.
      Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016                    Page 1 of 12
[2]   We affirm.


                                     Facts and Procedural History

[3]   Both parties agree as to the relevant facts. Pitchford was arrested on a

      preliminary charge of battery on May 8, 2015. After his arrest, Pitchford was

      taken to the Marion County Arrestee Processing Center. Marion County

      Sheriff’s Deputy Mark Bunch (“Deputy Bunch”) was acting as the “search

      deputy” that day. Pursuant to department policy, Deputy Bunch conducted a

      strip search of Pitchford because he had been arrested for battery, which Bunch

      testified was considered to be a “crime of violence.” Tr. pp. 10, 24-25.


[4]   The relevant portion of the Sheriff’s policy provides:

              1. Before a strip search is performed, certain criteria shall be
              met. Strip searches shall be authorized only under the following
              circumstances:
                   a. There is reasonable suspicion that the arrestee possesses a
                   weapon, drugs, or contraband.
                   b. Current charge(s) for escape, possession of drugs, weapons
                   or crimes of violence;
                   c. Refusal of a pat search;
                   d. Discovery of weapons, drugs, or contraband during a pat
                   search;
                   e. Alerted by alarm on the magnetometer;
                       NOTE: If a strip search is indicated due to a walk-through
                       magnetometer alarm during a pat search, the use of a
                       hand-held magnetometer should be used, if available, to
                       determine if surgically implanted metals, etc., caused the
                       alarm prior to initiating a strip search.


      Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016       Page 2 of 12
                   f. Reliable information that the arrestee possesses a weapon,
                   drugs, or contraband;
                   g. The arrestee is a fugitive or a detain order exists (hold) for
                   any of the above listed offenses; or
                   h. Contact with the public or exposure to a public area after
                   arrest.
              2. If a pat search has not been completed, a thorough pat search
              shall be performed while arrestee is still handcuffed and before
              proceeding to the Search Room where the strip search is to be
              conducted.
              3. Deputies of the same gender as the person to be searched shall
              perform strip searches. The Deputy performing a strip search
              shall not touch the arrestee unless there is an officer safety issue
              or the arrestee becomes combative.
              4. The Deputy that performs the search shall Sign the OAR as
              the “Search Deputy.”

      Ex. Vol., State’s Ex. 1., pp. 5-6. Pursuant to the policy, the strip search

      consisted of an “inspection of the genitalia, buttocks, breast, or undergarments

      of an arrestee, that is preceded by the removal of, or rearrangement of, some or

      all of the person’s clothing that directly covers the person’s genitalia, buttocks,

      breast, or undergarments.” Id. at 1.


[5]   Deputy Bunch explained the actual process of the strip search as follows:


              A strip search is conducted after an initial pat search is done
              while the arrestee is still in handcuffs. And then after the arrestee
              is pat searched, they’re walked through a metal detector. And
              after that, they go back into the strip room where the strip search
              is proceeded.
              Initially, the process would be to remove outer clothing. I usually
              start with the top, like a shirt.

      Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016          Page 3 of 12
        And then after the clothing is removed, I -- as far as like the shirt,
        I would have the arrestee turn the article of clothing inside out to
        make sure that there’s nothing on the inside of the clothing. And
        that’s the same process for any additional clothing.
        As far as pants, I would go through the pants or shorts, whatever
        they have on. And then the same process for all those clothings.
        The socks would then be removed. The underwear would be
        removed.
        And then after all of that, then I would then begin the rest of the
        strip search which would include to have the arrestee open their
        mouth, lift their tongue up, and make sure there’s nothing under
        the tongue, and to lift the top and bottom lips.
        And after that, I would then ask them to raise their arms so I
        could see their armpits.
        After that, I then would have him, being a male, lift their testicles
        up to make sure there’s nothing being hidden there.
        And then after that, I would have them turn around, face the
        wall, put their hands on the bar that’s inside of that room. It’s
        like a railing. And then with their hands on the bar, I would have
        them raise one foot at a time to show me that there’s nothing on
        the bottoms of their feet.
        And then with their hands still on the railing, I would have them
        squat down. usually just tell them it’s like a baseball catcher,
        Squat down all the way, where they’re bending at the knees. And
        then they would proceed then to cough three times, usually in a
        loud manner.
        And then after that, I would have them stand up and then keep
        their legs straight at this point, bend over forward at the waist
        completely, reach back with both hands and spread their butt
        cheeks and then cough again three times to make sure that there
        is nothing in there.

Tr. pp. 12-14.


Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016       Page 4 of 12
[6]   Pitchford was compliant with the strip search until the last portion of the

      search, which required him to bend at the waist and spread his buttocks apart.

      When Pitchford refused to cooperate with this part of the search, Deputy Bunch

      called for other deputies to assist him. The deputies then attempted to place

      Pitchford in handcuffs, but Pitchford resisted. During the process of

      handcuffing Pitchford, one of the assisting deputies noticed a plastic bag

      “extruding” from Pitchford’s buttocks. Tr. pp. 15-16. Inside the bag was a

      substance that tested positive as cocaine and heroin.


[7]   As a result, the State charged Pitchford on May 21, 2015, with Level 6 felony

      possession of cocaine, Level 6 felony possession of a narcotic drug, and Class A

      misdemeanor resisting law enforcement. Pitchford subsequently filed a motion

      to suppress the evidence discovered during the strip search, arguing that the

      deputies had no reasonable suspicion to justify the search of a misdemeanor

      offender. The trial court held a hearing on this motion on October 13, 2015,

      and the parties later submitted briefs to the court on this issue. On October 27,

      2015, the trial court issued a ruling from the bench granting Pitchford’s motion.

      The State then filed a request that the trial court issue a written order, claiming

      that it needed a written order in order to appeal.1 Accordingly, on November

      20, 2015, the trial court issued findings of fact and conclusions of law




      1
          We are unaware of any such requirement. Pitchford makes no argument that the State’s appeal is untimely.


      Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016                         Page 5 of 12
      explaining its grant of Pitchford’s motion to suppress. The State filed its notice

      of appeal on December 14, 2015, and this appeal ensued.

                                            Standard of Review

[8]   The State argues on appeal that the trial court erred in granting Pitchford’s

      motion to suppress. In cases involving a warrantless search, the State bears the

      burden of proving an exception to the warrant requirement. Halsema v. State,

      823 N.E.2d 668, 676 (Ind. 2005). Therefore, on appeal from the trial court’s

      decision to grant a motion to suppress, the State appeals from a negative

      judgment. State v. Mason, 829 N.E.2d 1010, 1015 (Ind. Ct. App. 2005). Thus,

      the State must show that the trial court’s ruling on the suppression motion was

      contrary to law. Id. We will reverse a negative judgment only when the

      evidence is without conflict and all reasonable inferences lead to a conclusion

      opposite that reached by the trial court. Id. On appeal, we neither reweigh the

      evidence nor judge the credibility of witnesses. Id. Instead, we consider only the

      evidence most favorable to the trial court’s decision. Id.


                                         Discussion and Decision

[9]   The State argues that the strip search of Pitchford was constitutional and that

      the trial court therefore erred in granting Pitchford’s motion to suppress. The

      constitutionality of strip searches in Indiana is controlled by our supreme




      Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016   Page 6 of 12
       court’s decision in Edwards v. State, 759 N.E.2d 626 (Ind. 2001).2 In that case,

       the court held that routine, warrantless strip searches of misdemeanor arrestees,

       even when incident to a lawful arrest, are not reasonable under Article 1,

       Section 11 of the Indiana Constitution or the Fourth Amendment to the United

       States Constitution. Id. at 629.


[10]   The Edwards court suggested that there “may be misdemeanor charges for

       which a body search is appropriate because of the reasonable likelihood of

       discovery of evidence.” Id. at 629. “[B]ut false informing,” the crime for which

       Edwards was arrested, “without more, is certainly not such a crime.” Id. The

       court also rejected the suggestion that the possible discovery of weapons or

       contraband justifies a search of every incarcerated person. Id.


[11]   The Edwards court ultimately held that a strip search is appropriate if the officer

       conducting the search has “a reasonable suspicion, based upon the totality of

       the circumstances surrounding [the defendant’s] arrest, that [the defendant] was

       concealing weapons or contraband.” Id. at 630. In Edwards, the record was

       unclear as to whether the defendant had been subjected to a routine strip search

       or if the officer had a reasonable suspicion that Edwards was concealing

       weapons or contraband. Therefore, the court held that the trial court did not err




       2
        Because Edwards is controlling, we reject the State’s argument that we should analyze Pitchford’s claims
       under the three-factor test set forth in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005).

       Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016                         Page 7 of 12
       in concluding that the State had not met its burden of demonstrating that the

       warrantless search was justifiable. Id.


[12]   The State argues that the holding in Edwards has been abrogated by the United

       States Supreme Court’s more recent decision in Florence v. Board of Chosen

       Freeholders of Burlington County, 132 S. Ct. 1510 (2012). The Court in Florence

       held that the Fourth Amendment does not prohibit strip searches of arrested

       persons before they enter a jail’s general population. Id. at 1523. The Florence

       majority rejected the contention that persons arrested for minor offenses must

       be excluded from such strip searches. 132 S. Ct. at 1520-21.

[13]   However, the holding of our supreme court in Edwards was based on both the

       Indiana Constitution and federal Constitution. See Edwards, 759 N.E.2d at 630

       (assuming that case decided by Seventh Circuit Court of Appeals was correctly

       decided under the Fourth Amendment, but reaching the same conclusion under

       Article 1, section 11 of the Indiana Constitution). Accordingly, even if the strip

       search of Pitchford was permissible under the Fourth Amendment,3 it must still

       pass muster under the distinct, and arguably stricter, requirements of Article 1,

       Section 11 of the Indiana Constitution. See Litchfield v. State, 824 N.E.2d 356,

       361 (Ind. 2005) (holding that warrantless search of trash, which is permissible




       3
         The constitutionality of the strip search under the Fourth Amendment would depend on whether Pitchford
       was to be held outside the general population. See Cantley v. W. Va. Reg’l Jail & Corr. Facility Auth., 771 F.3d
       201, 208 (4th Cir. 2014) (“strip searching pre-arraignment detainees who are held outside the general
       population of a detention facility is unconstitutional absent reasonable suspicion.”) (Wynn, J., concurring)
       (citing Florence, 132 S.Ct. at 1523 (Roberts, C.J., concurring); id. at 1524 (Alito, J., concurring); id. at 1525
       (Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting)).

       Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016                              Page 8 of 12
       under the Fourth Amendment, requires a reasonable suspicion under the

       Article 1, Section 11); Clanton v. State, 977 N.E.2d 1018, 1023 (Ind. Ct. App.

       2012) (noting that despite the nearly identical language of the Fourth

       Amendment and Article 1, Section 11, the very same police behavior could be

       reasonable under the federal constitution and unreasonable under the state

       constitution because each has a distinct reasonableness analysis).

[14]   Thus, the holding in Edwards is still controlling to the extent that it was based

       on Article 1, Section 11. Under Edwards, the warrantless strip search of

       misdemeanor arrestees is impermissible unless, given the totality of the

       circumstances, the officer has a reasonable suspicion that the arrestee is

       secreting weapons or contraband. Nothing in the record indicates that Deputy

       Bunch conducted the strip search based on any reasonable suspicion. It was

       instead the very sort of routine, warrantless search prohibited by Edwards.


[15]   The State attempts to distinguish this case from Edwards by focusing on the fact

       that Pitchford was arrested for battery, which it claims is a crime of violence.

       The State argues that Edwards would permit a strip search of an individual

       arrested for a violent misdemeanor. Our reading of Edwards, however, reveals

       no general exception for crimes of violence. Instead, the court in Edwards

       merely noted that the possible charges faced by the defendant in that case were

       all nonviolent misdemeanor offenses. 759 N.E.2d at 629. The court did not

       hold that it was therefore permissible to routinely strip search those arrested for

       violent misdemeanors. To the contrary, the court clearly held that strip searches

       of misdemeanor arrestees must be based on a reasonable suspicion that the

       Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016    Page 9 of 12
       arrestee is concealing weapons or contraband. Edwards, 759 N.E.2d at 631.

       Therefore, if an individual were arrested for a violent misdemeanor that

       involved drugs or the use of a weapon, then this might, under the proper

       circumstances, support a reasonable suspicion that the arrestee is concealing

       contraband or weapons. See id. (noting that there “may be misdemeanor

       charges for which a body search is appropriate because of the reasonable

       likelihood of discovery of evidence). However, Pitchford’s offense is not this

       sort of misdemeanor charge, as nothing in the record indicates that Pitchford’s

       battery involved any sort of weapon or the possession of any contraband.

[16]   The other cases in which this court has upheld a strip search are readily

       distinguishable. In Bryant v. State, 959 N.E.2d 315, 320 (Ind. Ct. App. 2011),

       this court held that the defendant, who was arrested for misdemeanor resisting

       law enforcement, might have a strong argument that a warrantless strip search

       was impermissible without other justification. However, the police in Bryant did

       have such justification because they also had probable cause that the defendant

       had committed the felony of dealing in a narcotic drug and reasonable

       suspicion that he was concealing contraband. Id.


[17]   In White v. State, 24 N.E.3d 535, 540-41 (Ind. Ct. App. 2015), trans. denied, we

       held that the strip search of a defendant arrested for a misdemeanor was

       permissible under the Fourth Amendment4 because of the officer’s reasonable



       4
        The court in White made no reference to Florence. Although the holding in White was based upon the
       Fourth Amendment, we find its holding instructive in our analysis under Article 1, Section 11.

       Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016                     Page 10 of 12
       suspicion that contraband might be introduced into the jail due to the lingering

       odor of marijuana which engulfed the defendant even after he had been

       transported to the arrestee processing center).


[18]   In Frye v. State, 757 N.E.2d 684, 688-89 (Ind. Ct. App. 2001), trans. denied, we

       held that, under the Fourth Amendment,5 a strip search was not justified merely

       by the defendant’s arrest for fleeing the police but was justified because some

       evidence gave rise to a reasonable suspicion that the defendant was in

       possession of contraband, i.e., the presence of illicit drugs and paraphernalia in

       plain view in the house from which the defendant fled. Id. See also Thompson v.

       State, 824 N.E.2d 1265, 1268 (Ind. Ct. App. 2005) (holding that strip search of

       defendant arrested for felony attempt to deal in cocaine was reasonable but that

       the search being filmed by civilian camerawoman rendered the search

       unreasonable).

[19]   The bottom line is that Edwards is controlling, and we are not at liberty to

       ignore it. Even though the Edwards court’s reliance on the Fourth Amendment

       has been undermined by the United States Supreme Court’s holding in Florence,

       its holding still stands for purposes of Article 1, Section 11. The clear holding in

       Edwards requires that a warrantless strip search of a misdemeanor arrestee be

       justified by reasonable suspicion, based on the totality of the circumstances, that

       the arrestee is concealing weapons or contraband. No such suspicion was



       5
        To the extent that Frye was based upon the Fourth Amendment, it would appear to have been abrogated by
       Florence. However, we still find it supportive of our analysis under Article 1, Section 11.

       Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016                    Page 11 of 12
       reported in the present case, nor do we read Edwards as permitting the

       warrantless strip search of all defendants arrested for violent offenses. Here,

       Pitchford was arrested for misdemeanor battery, and nothing about the

       circumstances surrounding his offense or his arrest support a reasonable

       suspicion that he was concealing weapons or contraband. In short, the State has

       not established that the trial court’s decision was contrary to law.6 The order of

       the trial court granting Pitchford’s motion to suppress the evidence discovered

       during the strip search is therefore affirmed.

[20]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       6
         We note that the good faith exception to the exclusionary rule does not apply to cases involving warrantless
       searches. See Thompson, 824 N.E.2d at 1271.

       Court of Appeals of Indiana | Opinion 49A04-1512-CR-2173| July 29, 2016                         Page 12 of 12
