Judge hears case of strip-search
A federal judge Wednesday closely questioned lawyers for the Spokane Police Department and for a man who was strip-searched without a warrant by an undercover officer in a 2005 drug sting in the West Central neighborhood.
John Burton sued the Police Department and Detective Larry Bowman last year, asserting that he had been arrested and strip-searched in violation of his constitutional rights. He had no attorney and was in jail on two drug charges when he filed his complaint.
The oral arguments before U.S. District Judge Robert Whaley this week were to determine whether Burton’s civil rights case will proceed to trial or be dismissed.
In a March 22 order, Whaley cited “exceptional circumstances” when he appointed the Center for Justice to represent the indigent Burton. At that time, Whaley said Burton had shown he has a “high likelihood of success on the merits” and was unable to effectively represent himself.
Assistant City Attorney Ellen O’Hara told Whaley that the Police Department has no written policy addressing strip-searches of suspects who aren’t in jail or prison – and that officers simply use their “discretion” when deciding to perform warrantless searches during an arrest.
Detective Bowman, who ordered Burton to drop his underwear for a search of his buttocks for cocaine on March 10, 2005, “is in the undercover unit. He’ll occasionally do these searches in the field. … It’s an individual call,” O’Hara said.
Although no drugs were found on Burton that day, he was arrested on two counts of delivery of a controlled substance for two previous incidents on Feb. 24 and March 1, 2005, when he was found with drugs.
John Sklut of the Center for Justice said the 9th U.S. Circuit Court of Appeals has ruled such invasive searches conducted outside of a jail or prison are unconstitutional.
Both Washington state and federal law are clear that anything beyond the pat-down of a suspect in a search for weapons and drugs “requires a warrant,” Sklut said. He criticized the Spokane Police Department for failing to properly train its officers in constitutional law, noting that Seattle has a “specific policy” that any strip-searches must take place in an institutional setting.
In its summary judgment motion, the city asked for the case to be dismissed because there was “no custom, policy or practice in place which deprived (Burton) of his constitutional rights.”
Whaley pressed O’Hara on her argument that the city is not liable because Bowman had not been following a specific written policy.
“So if an officer has probable cause, they can perform a strip-search?” Whaley asked.
“A reasonable officer would believe that’s constitutional,” O’Hara replied. She used a street term – “crack in the crack” – to describe where suspects sometimes hide drugs.
In their declarations for the case, the police officers referred to Burton’s arrest as a “normal strip-search,” Sklut said. “Normal means according to an established norm or rule. It’s a policy, whether it’s written or not,” he added.
On Jan. 26, the city countersued Burton, saying his lawsuit is “unfounded, malicious and without probable cause.”
On April 16, reacting to policy issues raised by the Burton case by the City Council’s Public Safety Committee, Spokane Police Chief Anne Kirkpatrick said she plans to revise the department’s policy guidelines on strip-searches, which she called “very generic.”
Kirkpatrick gave the City Council members copies of a model policy developed for the International Association of Chiefs of Police. It says strip-searching prisoners in the field “shall be conducted only in the rarest of circumstances” where the lives of officers or others may be at risk.
After Wednesday’s oral arguments, Whaley said he’ll issue a written ruling in about two weeks.