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  • Apoorva Deshmukh

State v. Harding: The Who, What, When, Where of “Strip Searches”

Updated: Oct 25, 2023

On December 10, 2010 Judge Moylan of the Court of Special Appeals attempted to make sense of Maryland’s prior case law regarding “strip searches.”

Gregory Maurice Harding was stopped for speeding on September 10, 2009 after two detectives conducted undercover surveillance for an individual named Harding who was selling crack cocaine out of a blue Audi with the Maryland tag number 7EPG15, in the Towson and Parkville areas. During the traffic stop, a K-9 unit alerted officers to the presence of contraband two times on the Audi, once at the driver’s side door and, again, on the driver’s seat. No narcotics were found during a search of the vehicle, nor during the subsequent search incident to arrest. Detectives then took Harding to the police precinct where he was asked to remove his pants. A baggie of crack cocaine fell out of the pants after removal. Gregory Maurice Harding was ultimately found not guilty of a single count of CDS possession with the intent to distribute after a court in Baltimore County determined that police officers did not have “a reasonable articulable suspicion to do the strip search.” The State appealed, leaving the Court of Special Appeals to question the appropriate method of conducting a strip search and whether there was adequate justification for the more intensive search that took place at the precinct after the traffic stop.

The Fourth Amendment to the United States Constitution protects individuals from, among other things, unreasonable searches and seizures. Exceptions have been made for investigatory stops where a police officer has reasonable suspicion that a person has committed or is about to commit a crime and for searches incident to a lawful arrest. However, what happens when it is necessary to go beyond the limits of a routine search? What is a reasonable justification for such a search? Where is it appropriate to have such a search?

Maryland case law divides “beyond-search-incident” searches into three categories: (1) strip searches, (2) visual body cavity searches, and (3) manual body cavity searches. A strip search involves the inspection of a naked individual without any inspection of his or her body cavities. A visual body cavity search extends to a visual inspection of an individual’s anus and genitals. A manual body cavity search includes any searches involving the insertion of, or manipulation with, the fingers, endoscopic examinations, or gynecological devices. For any such “beyond-search-incident” to be conducted, probable cause that the underlying crime has been committed and particularized suspicion that the evidence sought might be found within the body of the individual are required. Depending on the invasiveness of the “beyond-search-incident” search, the final justification for the type of search must be made by a police officer, a doctor, or a neutral and detached judicial figure.

Applying the particularized suspicion standard to the facts in Mr. Harding’s case, the Court of Special Appeals determined that police officers had much of the needed information along with the probable cause for arrest. A “reliable informant” had reported to officers that Harding was selling crack cocaine out of a blue Audi in the Towson and Parkville area. Another officer received a complaint about a man named Harding who was selling crack. Detectives at the scene of the search had training, knowledge, and experience that made them believe Harding had more drugs on him that were found during the initial searches. Finally, the K-9 alert indicated the driver, Harding, to be in possession of drugs or for the drugs to be near the driver’s side of the car. Eliminating the car and Harding’s pockets as hiding places through preliminary searches, officers were left to reasonably suspect the drugs were on Harding’s body.

Along with the justification for such a search, it is necessary to consider whether the search is reasonable under the Fourth Amendment in light of the manner and place in which it was conducted. Modality issues may focus on privacy, possible embarrassment, hygienic conditions, and whether individuals have the necessary medical training. Reduced protections exist for searches involving border security and institutional security. In the case of Harding, modality was not at issue as officers conducted the search within the police precinct, away from onlookers. However, the Court stressed that excess modality will not make up for a lack of particularized suspicion, or vice versa.

Believing detectives at the scene had appropriate particularized suspicion prior to Gregory Harding’s strip search and conducted the search in a reasonable manner, the Maryland Court of Special Appeals reversed the lower court’s suppression order and remanded the case for a new trial.

While the ruling may seem like a loss for the Gregory Hardin, the opinion reduced confusion and created basic requirements when police officers consider “beyond-search-incident” searches, or “strip searches.” Rather than concern themselves with categories and classifications, prosecutors, defense attorneys, and officers faced with questions regarding the justification of a “strip search” now need only determine whether there was (1) probable cause that the underlying crime has been committed, and (2) particularized suspicion that the evidence sought might be found within the body of the individual.


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