News: Public housing tenants protest against drug testing, plus more...
- Fascist News Update:
Housing -- Chicago public housing tenants protest against drug testing
ACLU fights drug testing of state employees in Florida
Florida to drug test welfare recipients
Court Case: Public Strip Search Goes Too Far, Court Says
>>>>>>>>>The Fascist State
The GOP/Democrat attacks on public housing tenants and affordable housing renters that are facing drug testing, and proposed time limits to remain in their housing are just a few reasons why this horrible system needs to be shut down, and burned to the ground.
I look forward to the day when the people rise up in anger and burn this corporate fascist system thats against unions, the working class and the poor, to the ground.
>>>>>>>>>Residents rally against CHA drug-testing plan
By Liam Ford Tribune reporter
6:03 p.m. CDT, June 1, 2011
Requiring Chicago Housing Authority residents to be drug-tested and making it easier to evict tenants with family members accused of crime is unconstitutional and will backfire, residents said today at a downtown rally.
The CHA is proposing to change its lease policy to require all adults renting or living in CHA housing to be tested yearly for drug use, and to make drug testing mandatory for everyone applying to live in CHA buildings.
The revised policy would also make it easier for the CHA to evict tenants who live with someone who commits a crime.
The CHA says it’s responding to residents’ safety concerns and already has a similar drug policy in place in developments that have replaced older public housing across the city.
But residents who rallied outside CHA headquarters at 60 E. Van Buren St. this morning said the drug proposal would violate the U.S. Constitution’s guarantee against unreasonable searches, and would penalize families trying to steer relatives away from drug abuse.
“To single us out for these two policies is unfair and unjust,” said Cheryl Johnson, who had to take her son off her lease in Altgeld Gardens on the Far South Side in 2006 after he was arrested with a small amount of marijuana.
When someone struggling with drug use is no longer under the same roof with family members, it’s harder to influence them to stay off drugs or enter treatment, Johnson said.
If the CHA board does approve the drug-testing policy, it should also require drug testing for everyone who works at or is a board member of the CHA, Johnson and others said.
Julia Mitchell, a resident of Lake Parc Place, said the drug testing would cause “humiliation.”
“This policy is just another way of stereotyping a group of people, based on economic status,” said Mitchell.
Although the policy gives tenants a chance to stay in CHA housing if they agree to drug treatment, residents said it would too easily lead to people being evicted.
Drug testing is already in place at 18 of the 45 mixed-income sites that have replaced the old-style public housing. Only one person has been evicted out of 51 cases in which people tested positive for drugs, according to CHA spokesman Matt Aguilar.
“We will not move forward on this unless we hear what everyone has to say,” Aguilar said.
Court decisions on drug-testing policies for people receiving government may end up blocking the proposed policy, even if it is approved.
Ed Yohnka, spokesman for the American Civil Liberties Union of Illinois, pointed to a 1999 decision in Michigan that threw out a state policy requiring Public Aid recipients to be drug-tested. The ACLU is opposed to the CHA proposal, even if some — or a large number — of CHA tenants are in favor of it, Yohnka said.
“As a general proposition, we oppose suspicionless searches,” Yohnka said. “We don’t think that it should be any different if somebody is renting an apartment on the North Side, in the Loop, or in the CHA.”
CHA officials are scheduled to take public comment about the proposal at the Charles A. Hayes Family Investment Center, 4859 S. Wabash Ave., at 6 p.m. Thursday. The CHA board could vote on the proposal in July.
ACLU fights Gov. Rick Scott's order to drug test state workers
The ACLU of Florida filed a lawsuit seeking to halt Gov. Rick Scott’s executive order mandating drug testing for state employees.
BY MICHAEL PELTIER
NEWS SERVICE OF FLORIDA 6/1/2011
TALLAHASSEE -- Requiring job applicants to "pee in a cup" to test for drugs and randomly selecting current public employees to do the same is unconstitutional, attorneys for the American Civil Liberties Union said Wednesday after filing a federal lawsuit to stop the practice ordered by Gov. Rick Scott.
In what is expected to be a series of lawsuits on recently passed legislation and gubernatorial edicts, the ACLU called on a federal judge in Miami to immediately suspend an executive order signed by Scott in March that requires all agencies to set up random drug testing protocols for existing workers and require new hires to submit to drug tests as a condition of their employment.
In doing so, Scott has not only pushed the envelope over who can be tested, but has acted counter to multiple court rulings that require some probable cause or special circumstance before drug tests can be administered, Peter Walsh, an attorney representing the ACLU, told reporters Wednesday.
"This is a case in which the office of the governor has ripped the envelope apart," said Walsh.
A spokeswoman for Gov. Rick Scott responded that Floridians overwhelmingly support drug testing for state workers. She said the governor, who has required testing for new hires since he took office, is confident the executive order will withstand court scrutiny.
"There’s an odd hypocrisy here," said spokeswoman Amy Graham. "The ACLU supports all kinds of mandatory disclosures by public employees, but not the most important disclosure - whether or not they’re fit to be in the workforce."
Scott signed the executive order March 22, giving agencies 60 days to begin testing new hires, an increasingly common practice in the private sector. Agencies must give existing employees another 60 days notice before beginning random tests.
"The taxpayers of Florida are entitled to expect that Florida’s public-sector employers be provided the same tools that are now available to private-sector employers to ensure their workforce is drug free," the executive order reads.
The ACLU filed the case on behalf of the American Federation of State, County and Municipal Employees Council 79 which represents 50,000 public workers who are now subject to the new drug-testing regime and Richard Flamm, a 17-year state employee and Research Scientist with the Florida Fish and Wildlife Conservation Commission.
"It is an unnecessary and costly invasion of the basic privacy and dignity of all state workers to force us to submit to tests of our bodily fluids with absolutely no just cause," Flamm said.
The suit contends previous federal court decisions have clearly ruled that that some type of suspicion or a genuine public need must the proven before drug tests can be required without cause.
"The Supreme Court of the United States has held that suspicion-less drug-testing by the government is an unreasonable search (in violation) of the Fourth Amendment, except under certain special circumstances, such as those involving employees in safety-sensitive positions where there is a concrete danger of real harm," the lawsuit reads.
The complaint is expected to be followed in the weeks ahead by other lawsuits in an attempt to overturn "a tsunami of anti-civil liberties legislation" passed by lawmakers during Scott’s first few months in office dealing with abortion, elections, and free speech issues, said Howard Simon, executive director of the Florida ACLU.
Scott on Tuesday signed another drug testing measure into law. It requires applicants to pass drug tests before they collect temporary cash assistance. In addition, the Republican-led Legislature passed a handful of controversial measures dealing with elections, doctor-patient conversations and abortion, all of which may be targeted for legal challenges.
"This has to be stopped here," Simon told reporters Wednesday. "There is a concerted attack on the personal freedoms of all Floridians."
>>>>>>>>>>>Fla. to start drug screening welfare recipients
by Allen Carter
Posted: 06.01.2011 at 7:05 PM
Updated: 06.02.2011 at 2:20 PM
TALLAHASSEE, FL -- Florida Govenor Rick Scott has signed a bill that will require anyone on welfare to pass a drug test to receive benefits. It’s something that's been considered in Georgia but never took hold.
“I think a person on drugs doesn't need to take taxpayers money and buy more drugs,” said Albany citizen Pinky Modeste.
It seems that a majority of southwest Georgians are in favor the bill.
“If they're out applying for welfare they need to be doing the right thing. They need to be applying for jobs. They need to be living the right life,” said James Stalvey.
The measure would mean people who fail a test are denied benefits for a year, a second failed test would result in a three year ban.
That's the one criticism that southwest Georgians seem to have on the measure; it does too much to cut people off and not enough to rehabilitate.
“That's a good idea but first give them a warning to make sure that it is from drugs,” said Roosevelt Cuffie.
“I think if they refuse the welfare because of drugs they should get a time limit to get themselves in order so that they can come back and apply again,” said Modeste.
There's at least one state legislator that will be paying close attention to what's going in Florida.
“The main thing is to make rehab available for these people, because what’s the point in finding they have drug problems, but then not stepping up to the plate and having them remedy the problem,” said Rep. Jimmy Pruett (R- Eastman).
Rep. Pruett actually introduced a similar bill in the Georgia house about three years ago. His was centered on drug testing for people getting unemployment benefits.
But he says if Florida’s measure goes off without a hitch it puts more pressure on Georgia to pass a similar bill.
“If that sticks and holds in Florida, honestly I’m going to tell you we have a serious problem in Georgia. Because what's going to happen is that those people in Florida who are on welfare and are abusing the system and they will just leave the state, and where will they come? To the nearest state which is Georgia, which will escalate the cost of our welfare program,” said Pruett.
>>>>>>>>>>>SF prosecutors drop 28 cases over drug searches
San Jose Mercury News - Terry Collins - May 27, 2011
SAN FRANCISCO—San Francisco prosecutors have dropped additional cases involving police officers who are under federal investigation for allegedly conducting improper searches, District Attorney George Gascon said Friday. ...
Click below for full story...
>>>>>>>>>>>ACLU files FOIA to discover what's behind DOJ's 'secret' surveillance law
Daily Kos - Joan McCarter - 56 minutes ago
Last week, during the debate on renewal of three expiring provisions of the PATRIOT Act, Senators Ron Wyden and Mark Udall participated in a colloquy in which they discussed an interpretation of the PATRIOT Act by the ...
>>>>>>>>>>>Public Strip Searches
(Court Ruling Saying Strip Search For Drugs Went Too Far -- Sam White fought against a public strip search done on him by fascist cops, done in plain view for all to see.)
Filed 5/27/11 White v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
THE SUPERIOR COURT OF SOLANO COUNTY,
THE PEOPLE OF THE STATE OF CALIFORNIA,
Real Party in Interest.
(Solano County Superior
Court No. FCR274491)
At the request of Detective Daniel Valk of the Vacaville Police Department, Rebecca Johnson, a citizen-informant, arranged to make a controlled buy of methamphetamine from petitioner, Samuel Eugene White. Valk saw White and a female companion arrive at the scene of the buy in a Cadillac Escalade and watched the transaction take place. Almost immediately after the vehicle left the gas station, it was stopped by other officers as it approached a freeway on-ramp. White, who is a paraplegic, was removed from his vehicle, placed in the wheelchair he carried in the Escalade, and taken across the street to a Park and Ride parking lot. Officers lifted him from his wheelchair and, while he was in the air, pulled down his sweat pants and underpants, leaving his genitalia fully exposed while they searched for the buy money, which they found secreted in his crotch. White contends the scope of the search was unreasonable as no exigent circumstances necessitated
a public in-field strip search. We agree and reverse the denial of White’s motion to suppress.
1. Procedural Background
By felony complaint, petitioner White was charged with sales of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a). In conjunction with his preliminary hearing, White moved to suppress evidence under Penal Code section 1538.5, arguing that he was “strip-searched in a public location” in violation of his Fourth Amendment rights. At the conclusion of the hearing, the magistrate denied the motion and held White to answer. White was then arraigned on an information alleging the same charge. He pled not guilty and renewed his motion to suppress, which was again denied. This petition for writ of mandate followed; we issued an order to show cause and heard oral argument.
2. Factual Background
The testimony of White and Detective Valk, the only witnesses who testified about the events leading up to the arrest and the search, does not significantly conflict. On February 27, 2010, at approximately 12:30 a.m., Rebecca Johnson, in exchange for favorable treatment in a pending case, arranged a drug purchase from White. Police monitored her text messages and cell phone conversations setting up the transaction. After they arrived at the prearranged meeting spot, the police searched Johnson and then gave her $160 in marked bills, which she took with her when she approached White’s Cadillac Escalade. Johnson went to the passenger side and talked to the occupants; when she returned she was searched again, she no longer had the buy money, but did have two grams of suspected methamphetamine.
The Cadillac drove away, but was soon stopped on the Hickory Street on-ramp to Route 80. White testified that after his companion, Candice Contreras, was removed from the vehicle, one of the officers pointed a weapon at him and told him not to move. After the other officer removed the wheelchair visible in the backseat, White was handcuffed and placed in the wheelchair. One of the officers wheeled White to a “Park and Ride” that was across the street. The other officer drove White’s car to the same site and parked the vehicle under one of the lights illuminating the parking lot. When asked to consent to a search, White refused, but the officers told him “that they’re going to search me anyways.” After the officers told him to stand up, White told them he could not because was a paraplegic.
White stated that he was then handcuffed him from behind and two officers, one on each side, lifted him out of the wheelchair into the air and, while he was “dangling” in the air, a third officer “snatched” his pants completely off and pulled his boxers down to his knees. While White was “completely exposed from [his] waist to [his] knees,” a “bloody bandage” covering a bed sore fell from his body to the ground. White said $160 was found “between my private and my leg.” He put the money there because his pants had no pockets.
White said the search took place “in plain view” of cars he saw getting on and off the adjacent freeway, and customers of several businesses in the immediate area, including a theatre, a McDonald’s and a Chevron gas station that was about 80 yards away from the Park and Ride. While the search was being conducted, White saw approximately seven people around the gas station and at the McDonald’s, and saw “several cars” entering and leaving the nearby freeway. The officers made no attempt to shield White from the view of customers of the nearby businesses and passing drivers and their passengers.
Detective Valk agreed that the Park and Ride was “very well lit” and that a Starbuck’s, McDonald’s, gas station, pizza place, ice skating rink, and movie theater were all nearby. In his view, the gas station and theater are about 200 yards away, with the “Pizza Shack” closer, at a distance of “[a]bout 150 yards.” Although he could not remember if anyone other than police, White, and his codefendant were nearby, Detective Valk said it was “highly possible” people were leaving the movie theater while White was being strip-searched. Detective Valk could not recall how many cars were parked at the Park and Ride at the time of the search, but said the lot “was not full.”
3. Arguments and Rulings on the Motions to Suppress
At the initial motion to suppress that was heard with the preliminary hearing, the People argued simply that White “said himself he doesn’t have any pockets on those pants. So he’s subject to a full search.” Emphasizing that White’s description of the strip search was undisputed, White’s position was that the nature of the search required the police to take steps to protect White’s privacy. His counsel argued that “the fact the money was where it was [does not allow] the police to conduct any kind of search, no matter how invasive and no matter what the circumstances. This was a public parking lot. There was a streetlight there. There are people around, movie theater business around. And I don’t think the search can be justified under the circumstances.”
The trial court denied the motion, explaining that the search “took place in, apparently, a public parking lot, it was the middle of the night, it was 80 yards or 240 feet away from the Chevron station. [¶] And I frankly think since it was the defendant’s actions that put that questioned money where it was in the first place, to me that diminishes the reasonableness of any expectation of privacy he might have in that location. It wasn’t a body cavity search. There was no evidence that there was anybody in the immediate vicinity, except law enforcement and [the codefendant].”
After being held to answer and arraigned on the information, White again moved to suppress the fruits of the search, emphasizing that the fact that he put the money in his underpants did not reduce his expectation of privacy. The trial court again denied the motion. In doing so, the court relied on two factors: First, that “[t]here was no testimony that anybody actually observed—any member of the public actually observed him” and, second, “the fact that he chose to secrete the money in that area of his body, diminished his expectation of privacy in that area of his body.”
A criminal defendant may move under Penal Code section 1538.5 to suppress evidence obtained as a result of an unreasonable search or seizure. (See § 1538.5, subd. (a).) Section 1538.5, subdivision (i), allows a defendant, as White did here, to move to suppress evidence at the preliminary hearing and, if he loses, to renew the motion at a “special hearing” after the information has been filed. “[E]vidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing” and the trial “court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the [trial] court as to evidence and property not affected by evidence presented at the special hearing.” (Ibid.) On appeal, we review the magistrate’s
factual findings for substantial evidence and presume their correctness. (In re Arturo D. (2002) 27 Cal.4th 60, 77; People v. Leyba (1981) 29 Cal.3d 591, 596-597 (Leyba), superseded by statute on other grounds, as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.) We review questions of law independently, however, including the trial court’s application of the law to the facts. (Leyba, at pp. 596-597.)
In California, the reasonableness of a police search is a question of law, which we determine under the Fourth Amendment. (In re Tyrell J. (1994) 8 Cal.4th 68, 76, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 130.) A warrantless search is unreasonable per se unless the People justify the search under a recognized exception to the warrant requirement. (In re Tyrell J., at pp. 76, 79.) In determining whether a particular search is reasonable, we apply a balancing test in which we consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place where it is done. (See Bell v. Wolfish (1979) 441 U.S. 520, 559 (Bell).)
Although the Attorney General does not rely on it, we turn first to the trial court court’s determination that “the fact that [White] chose to secrete the money in [his underpants], diminished his expectation of privacy in that area of his body.” This turns Fourth Amendment jurisprudence on its head. If hiding contraband diminished the expectation of privacy in the area searched, then the results of a search would determine its constitutionality. But, as Justice Traynor recognized more than half a century ago, “a search, whether incident to an arrest or not, cannot be justified by what it turns up.” (People v. Brown (1955) 45 Cal.2d 640, 643; see also People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 821 and People v. Benjamin (1999) 77 Cal.App.4th 264, 275 [“probable cause for a search cannot be supported by the results of the search”].) Similarly, one’s expectation in the privacy of his “private parts” is not
diminished because he placed contraband near his genitalia. Indeed, it is hornbook law that the Fourth Amendment protects areas where the defendant has “an expectation of privacy in the area searched.” (United States v. Salvucci (1980) 448 U.S. 83, 93.)
Given White’s expectation of privacy in the area searched, we turn to the reasonableness of the search. In doing so, we emphasize that White does not argue that he was not subject to lawful arrest, nor that he could not be searched. His claim is simply that the search that took place was not conducted in a reasonable manner. Due to the absence of any justifying exigency, he maintains that the strip search that took place violates the Fourth Amendment. We agree.
People v. Smith (2009) 172 Cal.App.4th 1354 is most instructive. Police encountered Smith while investigating a possible burglary at a motel. He consented to search and acknowledged he was on parole. A patsearch revealed nothing, but the officer told Smith “he was ‘gonna check his pants’ ” as he had a “feeling that Smith had contraband in his underwear.” (Id. at p. 1358.) Smith was “search[ed] inside the crook of the open back door of a patrol car with the other two officers standing around Smith, to protect his privacy. The search took place in the back of the hotel parking lot, which did not face the street, but rather, a fenced-in area.” (Ibid.) The search consisted of the officer opening and lowering Smith’s pants about a foot, but not his underpants. Rather, the officer “pulled the elastic waistband of Smith’s underwear ‘out away from his body’ and saw a large bag the size of a baseball ‘sitting right on top
of his penis.’ ” (Id. at p. 1358.) There was no evidence of anyone in the area. (Ibid.) Given that the search was conducted in a manner to minimize public viewing, that there was no evidence of anyone in the area, and Smith’s “private parts were not exposed,” the Smith court “conclu[ded] that Smith was not subjected to a public strip search.” (Id. at p. 1363.) The Smith court found “[t]he intrusion was limited to that necessary to determine whether Smith was concealing narcotics and did not constitute a broad invasion of his privacy and dignity rights. We deem the intrusiveness of the search even less significant in light of our conclusion that Smith had a sharply diminished expectation of privacy as a parolee.” (Ibid.)
The justifications for the search in Smith are wholly absent in the present case. Unlike in Smith, the actions by the police here exposed White’s “private parts” to persons in the area and significantly increased the possibility the strip search was seen by others. White was taken from the Hickory Street on-ramp, which Detective Valk described as having “low light,” to the Park and Ride, which he said was “very well lit.” The police made no attempt to restrict the view of passers by, like placing White behind a vehicle or flanking him to provide some privacy; instead they lifted him out of his wheelchair and held him aloft while pulling down his pants and underwear, which action may well have called attention to the event.
As we have said, in denying the renewed motion to suppress, the trial court relied in part on the fact that “[t]here was no testimony that anybody actually observed—any member of the public actually observed” White. It is true no one testified that a member of the public observed White as the officers held him in the air naked from the waist down, but neither was there any testimony (or other reason to think) the search was not observed by anyone. Moreover, the uncontradicted testimony of White and Detective Valk, the only percipient witnesses who testified, was that White’s nakedness could have been seen by drivers and others in the area. White stated that at the time he was searched “several people” were at the gas station and others were entering and leaving the McDonald’s. Detective Valk did not recall seeing “pedestrians around after the car stop,” but conceded it was “highly possible” that there were people leaving the
movie theater at the time of the search. The gas station and McDonald’s, according to the trial court, was “80 yards or so from the place where this occurred,” although the theater was about 200 yards away. In other words, the search was conducted in public.
As earlier noted, the United States Supreme Court stated in Bell, supra, 441 U.S. 520, that an evaluation of the reasonableness of a challenged search must “balanc[e] . . . the need for the particular search against the invasion of personal rights that the search entails.” (Id. at p. 559.) Factors to be considered are “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” (Ibid.) Bell emphasizes that the place in which the search is conducted is particularly important. Public in-field strip searches require more than mere probable cause. To survive constitutional scrutiny, there must be reason to conduct such a search immediately, before the detainee can be removed to a more private setting. This is so because “[b]oth strip and body cavity searches ‘entailing the inspection of the anal and/or genital areas have been accurately
described as demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s personal privacy.’ ” (U.S. v. Ford (E.D. Va. 2002) 232 F.Supp.2d 625, 631(Ford).)
Ford involved a roadside strip search during rush hour in which the defendant’s buttocks were exposed to passing motorists. Ford’s vehicle was stopped because of a cracked windshield. As he approached the vehicle, Officer Monahan smelled burnt marijuana and thought Ford appeared nervous, had an accelerated heart rate, and was “motioning to his right, as if concealing something.” (Ford, supra, 232 F.Supp.2d at p. 626.) He asked Ford to exit the car and then handcuffed him. Ford appeared to be “clinching his buttocks as he was walking to the rear of the car.” (Ibid.) Upon patsearching the outside of Ford’s clothing, Officer Monahan again observed Ford “clinching his buttocks.” (Ibid.) After his backup arrived, Monahan put on latex gloves, “pulled down Mr. Ford’s shorts and boxer briefs, revealing his naked body to below his buttocks.” (Id. at p. 630.) This “occurred in broad daylight on the side of the George
Washington Parkway, a heavily traveled roadway, at approximately 7:23 p.m., at the tail end of rush hour.” (Ibid., fn. omitted.)
The court in Ford found the search unconstitutional because it was not justified by any exigency: “No testimony was proffered that the defendant was attempting to destroy the evidence, or that he possessed a weapon or some means to subvert the legal process. The only evidence before the Court is that Mr. Ford was clinching his buttocks; however, the Court fails to see how, by clinching his buttocks, the defendant was going to destroy the evidence. The body cavity search could have waited until Mr. Ford was taken to an appropriate location for such searches. The Court also concludes that the character of the item Officer Monahan felt was the size of a thumbnail. When he initially searched Mr. Ford through his outer clothing, the item was not immediately apparent as crack cocaine. Officer Monahan was so excited that he felt compelled to display Mr. Ford’s buttocks, to spread his buttocks apart, and to reach in between his buttocks to retrieve
the item. The Court finds no justification for such an invasive search under the circumstances. [¶] Finally, the scene took place on the side of the George Washington Parkway at approximately 7:23 p.m. This time is considered the tail-end of rush hour when many motorists travel this road on their way out of the city. This scene took place in August at 7:23 p.m.; the Court takes judicial notice that, during the summer months, it would still be bright daylight during that time of the evening. These circumstances further support the Court’s conclusion that the search exceeded the bounds of decency and the limits of the defendant’s Fourth Amendment protection against unreasonable searches and seizures.” (Id. at pp. 630-631.)
The reasoning of Ford is similar to that of Foster v. City of Oakland (N.D. Cal. 2009) 675 F.Supp.2d 992, which was an action against a city and certain police officers by plaintiff motorists who alleged systematic violations of their constitutional rights through the police department’s policy and practice of performing strip searches and body-cavity searches in public. (See also Foster v. City of Oakland (N.D. Cal. 2008) 621 F.Supp.2d 779.) In finding that one of the defendant officers violated as a matter of law the Fourth Amendment rights of one of the plaintiffs by subjecting him to an unlawful strip search, the court declared that certain factors must be present to “justify a strip search in the field: (1) there must be exigent circumstances; (2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest; (3) the search
requires probable cause that is independent of the probable cause for the arrest; and (4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs, or dangerous contraband.” (675 F.Supp.2d., at p. 1004.)
The Attorney General attempts to justify the search that took place on the grounds that it “was relatively brief, nonviolent, minimally intrusive, and conducted in a reasonable manner.” We disagree. While the search may have been brief, the forcible lifting of a person who cannot walk from a wheelchair and dangling of him in the air while his pants and underwear are ripped off in a well lit area visible to the public is neither nonviolent nor minimally intrusive. Finally, as we have said, there was no need for such police conduct, which was “ ‘ “demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s personal privacy.” ’ ” (Ford, supra, 232 F.Supp.2d at p. 631.) As White concedes, there was probable cause for the arrest; a post-arrest search could have been conducted in the privacy of the police station or even in the field under less objectionable
circumstances, such as those in Smith.
For the reasons stated above, the court erred in denying the motion to suppress. The writ is granted and the trial court is instructed to enter an order granting the motion.