Fatima Hussein

The Indianapolis Star

INDIANAPOLIS — A police officer overstepped the state and U.S. Constitution when she touched a female suspect's genitals on the side of the road to inspect for drugs, the Indiana Court of Appeals ruled this week.

The suspect, Taccasia Porter, appealed a Marion Superior Court decision that said a search conducted by an Indianapolis Metropolitan Police Department officer was constitutional pursuant to the Fourth Amendment to the U.S. Constitution.

Porter argued that the trial court erroneously admitted evidence, marijuana, obtained during the search.

A spokesman for IMPD declined to comment on "pending litigation."

In October 2016 the officer made a traffic stop for an unspecified headlights violation, according to court documents.

Porter was a passenger in the vehicle. During the stop the officer noticed an odor of marijuana.

After an initial search revealed no drugs, the officer, on the side of a public road, "pulled Porter’s jeans away from her body and inserted her hand inside Porter’s jeans," court documents state. "After feeling an object inside Porter’s underwear, the officer then stuck her hand inside Porter’s underwear, next to her genital area, and retrieved a marijuana blunt."

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"While the initial pat-down search was permissible, we find that the subsequent search ran afoul of both the federal and state constitutions," wrote appellate Judge John G. Baker. Judges Mark Bailey and Robert R. Altice concurred with the opinion.

"All of this took place in a public area on the side of a road, with no evidence that any precautions were taken to protect Porter’s privacy from pedestrian or vehicular passersby or the two men on the scene," the opinion states.

There also is no evidence that the officer "took sanitary precautions, such as using plastic gloves to conduct the search," Baker wrote. "Thus, the degree of intrusion was significant."

The judge concluded that the officer violated the constitution when she conducted the search.

Jeannine Bell, a professor at Indiana University Maurer School of Law in Bloomington says an officer must have probable cause to conduct such an invasive search, citing a Supreme Court balancing test to evaluate the legitimacy of bodily searches.

The scope of the intrusion, the manner in which the search is conducted, the justification for the search and the place where the search is conducted are to be considered, Bell said.

Bell added that it is important to note that the officer was not searching for a weapon but rather contraband. "That's another distinction the court makes," she said.

Such body searches have drawn public interest after a woman in Harris County, Texas, filed a lawsuit this month after a drug search turned into an alleged rape at the hands of law enforcement.

In conducting a search for drugs in June 2015, Harris County deputies pulled down a woman's pants, opened her legs, searched her by shining a flashlight onto her "naked genital area" and "penetrated her vagina," all in a convenience store parking lot.

A video documenting the incident shows the woman lying on the ground with her legs open while two female officers alternately stand and kneel over her for about 11 minutes.

The woman is suing for $15 million. The civil case is set to go to trial in January 2018.

Follow Fatima Hussein on Twitter: @fatimathefatima