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State of Maryland v. Chris Nieves, No. 10, September Term, 2004.

Criminal Law & Procedure: Search & Seizure -- Search Incident to Arrest. Strip Search of defendant incident to arrest for several minor traffic violations held unreasonable under the Fourth Amen dment. T he applicab le standard f or evaluatin g strip search es incident to arrest for minor traffic violations is the reasonable, articulable suspicion standard that the arrestee was carrying weapons or contraband at the time of the arrest. An arrestee's prior drug history and the fact the he was driving the truck of a missing female does not satisfy the reasonable, articulable suspicion standard.

IN THE COURT OF APPEALS OF MARYLAND

No. 10 September Term, 2004

STATE OF MARYLAND v. CHRIS NIEVES

Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinion by Battaglia, J.

Filed: November 15, 2004

This case requires us to consider whether a strip search conducted incident to a lawful arrest for a mino r traffic offense is reasonab le under the Fourth Amendment. We conclude that, under the circumstances of this case, the strip search conducted incident to arrest for a minor traf fic offen se was un reasonab le, and thus, v iolative of the Fourth A mendm ent. I. Background A. Facts On January 22, 2002, at approxim ately 7:45a.m., Officers Jason Ackerman and Jason Dietz of the Hagerstown Police Department, were on patrol in their vehicle, in the area of Wakef ield Road an d West F ranklin Stree t. They had sto pped their v ehicle appr oximately six feet behind a b urgundy T oyota Takoma truck, which was sitting at the intersection stop sign. While the officers were behind the truck, they noticed that the drive r, later identified as Chris Nieves, was having "some kind of problem around the shifting area." The truck then began to drift back, "as if the clutch w as engaged and it wasn't in gear," and struck the officers' vehicle. Officer Ackerman got out of the patrol car, approached Nieves, and asked Nieves, the sole occupant of the truck, for a valid driver's license. Nieves responded that he did not posses s a valid driver's license i n any state or any ph oto iden tification . After the officers reported the accident to police dispatch, they learned that the truck was registered to a female who had been reported missing by her parents ten da ys earlier. In response to their question about his identity, Nieves replied that his name was "Nathan Nieves" and that his birth date was June 26, 1976. A subsequent search of police records failed to identify any person under that name. During the encounter, Nieves appeared "calm

and relaxed" to the officers. A third police officer, Jason Batistig, arrived at the scene within a matter of minutes, pursuant to police department policy, in order to investigate the accident involving the police patrol car. Offic ers Batistig an d Dietz be gan to que stion Niev es about h is identity and the truck's ownership. When asked again by the officers for his identity, Nieves supplied the same birth date bu t instead gav e a differen t first name, "C hris," with the same last name. The dispatcher ran a search for "Chris Nieves" and found that Nieves' driving privileges were suspended and that a state identification card had been issued to him. When asked how he came to be in possession of the truck, Nieves responded that "he got it from a guy named Mike" from West Virginia. Officer Batistig stated that N ieves was then a little nervous, fidg ety, and evasive during the interrogation. Nieves was placed under arrest for giving false inform ation to t he polic e and f or obstr ucting a police o fficer. Nieves consented to a pat down, after Off icer Acke rman requ ested perm ission, to insure that Nieves d id not have weapo ns, becaus e a crime co uld have been committed in light of the fac t that a "f emale w as missi ng." During the pat down, Officer Ackerman found a r oll of mon ey totaling $377.00 in Nieves' pocket. The officers then searched the truck that Nieves was driving and found no contraband or weapons. Officer Batistig thereafter transported Nieves to the police station. After Officer Batistig and Nieves arrived at the Hagerstown police station, they were met by Lieutenant Richard Johnson, who was investigating the disappearance of Melissa

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Langdon, the registered owner of the truck Nieves was driving. Based upon information provided by Langdo n's parents, L ieutenant Jo hnson w as aware that Langdon's disappearance was allegedly linked to drugs. Lieutenant Johnson immediately recognized Nieves as having been arrested twice in the year 2000 for drug offenses. 1 Although not aware of the $377.00 found on Nieves' person, Lieutenant Johnson ordered a strip search of Nieves during the booking procedures based upon "the information regarding the missing person and the prior history of drugs." At the request of Lieutenant Johnson, Detective Schultz conducted the strip search, which produced two small plastic baggies containing individually wrapped baggies of cocaine that were protruding from Nieves' rectum. B. Procedural History On January 22, 2002, Nieves was charged with possession of cocaine,2 possession with intent to distribute cocaine,3 and five minor traffic violations: Failure to control speed,4

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During one of the arrests, Nieves had been taken to a local detention center and the arresting officers had found money and drugs on Nieves' person. Lieutenant Johnson indicated that "as far as [he could recall]," Nieves had been charged with possession w ith intent to distribute as a result of either one or both of the arrests and had been convicted of those c harges .
2

Md. C ode (195 7, 1996 R epl. Vol.), A rt. 27

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