APPEAL from the Circuit Court of Cook County; the Hon.
FRANKLIN I. KRAL, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
A strip search is humiliating, degrading and embarrassing. Nevertheless, at times efficient police procedures require that arrestees undergo that kind of search to protect the safety of police officers, to maintain order in jails and to disclose the fruits of a crime. These legitimate public needs do not justify a strip search under the circumstances with which we deal in this case an arrest made for a minor offense, one the legislature has labeled a misdemeanor, where the arrestee is able to satisfy the amount of bail which has been preset by judicial rule and where there is no need to incarcerate the arrestee or even detain him at the station house for more than a brief period needed by the police to determine whether he is subject to a more serious charge.
William Seymour was arrested for a minor offense, then taken to the police station and strip searched. He advances several grounds for upholding the circuit court's order suppressing the minute amount of cocaine found in the course of that search. First, the cocaine was found only because police breached their duty to inform Seymour of his right to post bail and gain his immediate release. Second, because of the nature of the accusation against Seymour, the strip search was an unreasonable invasion of his privacy in violation of article I, section 6 of the Illinois Constitution of 1970. Third, the strip search, made without a warrant, did not fall into any of the exceptions to the warrant requirement and was under the circumstances unreasonable and a violation of his fourth and fourteenth amendment rights.
Before discussing these rationales, it is useful to draw distinctions between the various types of searches of an individual's person. Taken in the order by which they intrude into an individual's privacy, they are: First, the "pat down," in which police frisk a suspect's outer clothing in order to find concealed weapons; second, the "pocket search," in which police rummage through a suspect's pockets, usually to find weapons but also to find the fruits of a crime or contraband; third, the "clothing search," in which police closely examine a suspect's clothes; fourth, the "strip search," in which a suspect is forced to strip naked under the glaring eye of a police examination; fifth, the "body cavity search," in which police strip the suspect naked and examine all openings of the body where contraband or weapons could be secreted; sixth, the "body intrusion," in which the examination goes beyond the outer limits of a suspect's body and the police pump the stomach or remove the blood without consent.
1 Both the Illinois and the United States Constitutions require that police obtain judicial warrant for their actions before engaging even in reasonable searches that invade an individual's privacy. The explanation for that prohibition was stated long ago by Mr. Justice Jackson in his dissent in Brinegar v. United States (1949), 338 U.S. 160, 180-81, 93 L.Ed. 1879, 1893, 69 S.Ct. 1302, 1313:
"Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police."
2 The need for swift action in certain limited situations has led to the formulation of several exceptions to the warrant requirement. When police action fits into an exception and is reasonable, the constitutions do not forbid the use of evidence uncovered in a warrantless search. The State seeks to fit the search of Seymour into these exceptions.
Seymour was charged by complaint with possession of a controlled substance, cocaine, in violation of section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402). A preliminary hearing resulted in a finding of probable cause. The defendant moved to suppress the cocaine seized in the search, and a hearing on his motion disclosed the following evidence.
The parties first stipulated to the testimony of Chicago police sergeant Peter Nielson, given at the preliminary hearing. Nielson had testified that he and Officer Michael Cronin were patrolling North Clark Street in Chicago on July 27, 1977, in a marked squad car when, at about 9 p.m., they saw the defendant leaning through the passenger's window of a car. When the officers pulled their car up behind the parked vehicle, Seymour stood up and began to walk away from them. Nielson got out of the squad, noticed that the parked car had keys in its ignition, and ordered the defendant to stop. Seymour's shirt was hanging outside of his pants as the police approached him. When Sergeant Nielson asked Seymour for some identification, the defendant began to reach into his pants pocket. Before he could, Nielson patted Seymour down.
Nielson found a loaded .38 revolver in Seymour's waistband. The officers immediately placed Seymour under arrest and called for a transport to the 18th District police station. While waiting in Nielson's squad for the transport to arrive, Seymour explained to the officers that the parked car was his and that he had a gun registration card for the revolver. Cronin added that, while waiting, Seymour told Nielson that he had been in the penitentiary before and so asked the sergeant to give him a break. Nielson did not mention such a remark in his testimony, and Seymour denied making it.
Seymour testified that when he was stopped, it was Cronin, not Nielson, who initially patted him down and discovered the concealed weapon. Nielson had testified that Cronin was off duty and out of uniform at the time of the arrest. When a second squad car arrived at the scene to take Seymour to the station, he was again searched. This time, officers both patted him down and performed a pocket search.
When Seymour was arrested, he was carrying both a valid State firearms identification card and $390 in cash. After arriving at the 18th District station he was searched for a third time. This time, police patted him down, searched his pockets and frisked him under his shirt. Seymour was then taken into the station house lockup to be fingerprinted. When his prints had been taken, he was told to wash his hands and was directed to a small washroom just off the lockup.
While Seymour was washing his hands, Officer Cronin entered the washroom. According to Seymour, Cronin said that Seymour was not a good guy, and Cronin patted him down for the fourth time. When Seymour finished drying his hands, Cronin ordered him to take off his clothes. Seymour testified he was stripped naked and a full body cavity search followed. Cronin's testimony was that he first told Seymour to remove his ...