March 2, 2009 in City

City and SPD want reversal of strip-search ruling

By The Spokesman-Review
 

Looking at the prospect of paying more than $1 million in damages, the city of Spokane and its police department tried Monday to convince a federal judge to reverse his ruling pertaining to strip searches.

The police department, which hired private attorney Steve Lamberson to represent it in the case, now claims detectives had a warrant to search a West Central neighborhood home in 2005 when suspected drug dealer John Burton showed up there and was arrested on charges of selling crack cocaine.

The warrant to search the home, signed by a state court judge, gave detectives the legal authority to order Burton to disrobe and submit to a strip search, Lamberson argued at a hearing Monday before Chief U.S. District Court Judge Robert Whaley.

After knocking on the door and being pulled inside, Burton was ordered to undress so officers who were already there could see if he was hiding drugs in his anal cavity.

They found none, saying there’s “no crack in this crack” and asking Burton if he had been sexually molested as a child, he claimed in a civil rights suit against the police department and the city.

His constitutional rights were further violated, Burton claimed, when Detective Larry Bowman and Officer Michael McNab allowed female officer Tracie Miedl to watch the strip search.

After the initial pleadings in the suit were filed and city attorneys made no claim of having a warrant, Whaley ruled in June 2007 that it was unconstitutional for the Spokane Police Department to let its officers routinely strip-search suspects in the field without a warrant.

The judge asked the Center for Justice and private attorneys James Sweetser, a former prosecutor, and Kenneth Kato, a former state appeals court judge, to represent Burton in his claim for more than $1 million in damages against the city.

Assistant City Attorney Ellen O’Hara initially defended the city and its police department and told the court in January 2008 that the city had no policy regarding strip searches and allowed officers to use their discretion when deciding to perform warrantless searches while making an arrest.

Last fall when it seemed the city could face a large damage judgment, O’Hara was removed from the case and Lamberson’s firm was hired by the City Council under an initial $30,000 contract.

“I’m sorry we’re back here today,” Lamberson told the judge at the outset of Monday’s hearing. “We now know there is a warrant signed by a judicial officer.”

Lamberson said the officers deny making the comments during the search of Burton, but said if they were uttered they would be protected by qualified immunity afforded police.

“Unprofessional, rude, impolite (comments) don’t rise to the level of constitutional violation,” Lamberson said. “They don’t invalidate the search.”

Kato, in his argument to the court, said police had no legal authority to strip search Burton and questioned whether a search warrant for a home automatically allows officers to strip a non-resident who shows up there during a police search.

Burton “never saw a warrant” before he was ordered to disrobe by the officers, who took $129 and a cell phone from him, Kato said.

Police previously had made two undercover drug buys from Burton and didn’t need to search him to make an arrest, Kato said.

“You were right the first time and there’s no reason to rethink it now,” Kato told the court.

Whaley said he will enter a written ruling in the next few weeks.

Bill Morlin can be reached at (509) 459-5444 or billm@spokesman.com.


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