Shawna Lynn FAITH v. STATE of Maryland

213 A.3d 809 · Court of Special Appeals of Maryland · decided 2019-08-02 · a3d 213

Berger, J.
Based on evidence recovered during a warrantless search at the scene of a traffic stop, the Circuit Court for Frederick County, in a bench trial, convicted Shawna Lynn Faith ("Faith"), appellant, of possessing cocaine with the intent to distribute. Faith contends that the suppression court erred in denying her request to exclude "the evidence recovered from a warrantless strip search ... conducted on the side of Interstate 70 in the presence of two civilians and other police officers in which her underwear was pulled from her body and her vaginal area exposed[.]"
This appeal requires us to decide whether such a visual body search, in which a female officer conducted a "look-in" at Faith's genital area, was reasonable under the Fourth Amendment, given the public manner and location in which that search occurred. Because the State failed to establish any exigent reason to perform this inspection on the shoulder of a highway in the presence of onlookers, instead of a more private setting that would lessen the intrusion into Faith's personal privacy, we shall reverse her conviction. In doing so, we revisit the constitutional limits on sexually invasive searches like the one at issue here.
BACKGROUND
Before trial, Faith moved to suppress both the controlled dangerous substances ("CDS") recovered and the statements she made during and after the challenged search, on the grounds that (a) this was a "visual body cavity" search that is unreasonable under constitutional standards, and (b) her statements were obtained from a custodial interrogation that occurred before she received Miranda advisements. The suppression court denied the motion as to the drug evidence but granted it as to Faith's statements before she was Mirandized.
Because the sole issue in this appeal is whether the court erred in failing to suppress the drug evidence, our focus is on the suppression record summarized below. See Lewis v. State, 398 Md. 349, 358, 920 A.2d 1080 (2007).
At 7:18 p.m. on April 21, 2017, Frederick County Sheriff's Deputy Douglas Storee "was doing traffic enforcement" in a marked police vehicle "on Interstate 70 at Route 144, the New Market Inn," which is "at Exit 55." Storee observed Faith's vehicle "following too closely, within a car and a half length" of another vehicle traveling westbound at the 70 mph speed limit in "moderate to heavy traffic[.]" When Storee initiated a traffic stop, Faith's vehicle pulled over on the right shoulder of the highway "at South Street[.]"
Faith was in the driver's seat, a female companion was in the passenger seat, and Faith's three-year-old son was in the back seat. Faith was wearing cut-off jean shorts and a top that did not cover her arms.
While informing Faith of why he made the stop, Deputy Storee noticed track marks on her arms, which "is common for someone that's administering CDS intravenously." The deputy asked where Faith was coming from. She answered that they were returning home to Cumberland, after taking "someone else's child down to Baltimore[.]" Storee considered a five-hour round trip for that purpose to be "odd." During the conversation, he observed that the two women "seemed to be squinting, which appeared ... that maybe they were under the influence of drugs" because "[s]ometimes eyes can be sensitive to light."
Storee returned to his vehicle and requested a K-9 unit at the scene. A marked cruiser occupied by Deputy Miller Yackovich and K-9 Officer Ike arrived two minutes later, at 7:22 p.m., while Storee was still completing paperwork regarding the stop. In accordance with standard procedures, the occupants were asked to vacate the vehicle before the canine scan began. After pat-down searches yielded no suspected weapons, all three individuals were "walked back" from Faith's car to Storee's vehicle.
The dog alerted at the doors of Faith's car. Deputy Storee, having called for an officer to "conduct a female search[,]" proceeded to search the vehicle.
Storee's search yielded drug paraphernalia and crack cocaine. A "glass pipe" with burnt residue that Storee believed to be crack cocaine was found under the driver's seat. A "metal spoon" commonly used to mix and inject heroin was "in the driver's compartment door" with "a whitish-tannish residue" that Storee, "based on [his] training and experience," believed to be heroin. In a purse "on the floorboard" by the front passenger seat was "a bag of crack cocaine[,]" divided into Ziploc packets. That purse contained identification belonging to Faith's passenger.
While Storee was searching the vehicle, Faith, her companion, and her child stood with Deputy Yackovich "on the bumper along the passenger side of" Storee's vehicle, which was "lined up behind the suspect vehicle." Yackovich's cruiser was next in line behind Storee's vehicle. Both police cars had their lights flashing throughout the stop.
While that vehicle search was underway, Sergeant Amanda Ensor arrived, parking her marked vehicle, also with lights flashing, as the fourth car lined up along the shoulder of Interstate 70. Deputy Storee had done "multiple" "female searches" with Sergeant Ensor "[i]n the field[.]" The sergeant also had "done female searches on [Deputy Yackovich's] traffic stops[.]"
According to Yackovich, he did not know whether Sergeant Ensor routinely "looks underneath females' clothes" because "[t]he way she searches is up to her." According to Storee, "typically we - especially if it's a female, they'll take them to the rear of the vehicle, away from everybody else." Storee explained that during Sergeant Ensor's searches, he does not "look because things happen .... from people doing things on their own, not necessarily just because of a search." Although he claimed that he "never expect[s] someone's vagina is going to be exposed on the side of the road[,]" he acknowledged that in the past, "things happened where people have pulled their clothes off in their own excitement[.]"
While it was still daylight outside, Sergeant Ensor searched Ms. Faith. As moderate to heavy traffic passed on the highway, and Faith's companion and son stood with Deputy Yackovich at the front of Deputy Storee's vehicle, Sergeant Ensor "took Ms. Faith back to the rear of" that vehicle, a car-length away. According to Deputy Storee and Deputy Yackovich, Faith was searched while standing "between [Storee's] vehicle and Deputy Yackovich's vehicle[,]" while "facing into oncoming traffic," with her back to the male officers and vehicle passengers. During the search, both deputies testified, they were "facing away" from Faith because "obviously there's a privacy issue." Yet Storee did "try to keep an eye as best [he could] on Sergeant Ensor[.]" And Faith's companion, who was holding her son, was next to Deputy Storee.
Sergeant Ensor testified that her search of Ms. Faith was consistent with her routine practice for roadside searches involving suspected CDS. On direct, she recounted that during her fifteen years as a police officer, she had been "frequently called to conduct female searches." She had "[s]everal hours at the academy in the detection of deception and behavior" and "too many" trainings "to name[,]" "in addition to conducting numerous arrests [herself] and assisting and aiding with other arrests for deputies." She estimated that she had conducted "[t]housands" of "female searches[.]"
When asked about her typical approach to such a search, she detailed her standard operating procedure, as follows:
[PROSECUTOR]: And what's your procedure when you arrive on the scene to conduct a female search?
[SGT. ENSOR]: Systematically for an incident like this where we're on a heroin interdiction operation and we are specifically looking for criminal behavior. I have a systematic approach to my searches. Basically, I do take the person's - their feelings, everything into account. Their reaction to me, their behaviors, their statements, their inconsistencies in stories; and my searches stem from there, but they're always systematic.
I initially ask them if they have anything on them. I let them know specifically if they do and I'm typically very confident that they do have something on them that I will find it. I ask if they have anything that's going to poke me, stick me, anything like that. Sometimes they will be honest and say yes. Others, they won't tell you. And in this specific case, the defendant had obvious track marks on her arms, which are consistent with intravenous needle drug use.
So my initial search, I start with the upper body and - let me back up. I'll take - if it's a female, I take them away from the male deputies and anyone else that's in the vehicle, and I either position them behind the first police vehicle w[h]ere the public can't see them or what I'm doing in my search. And the other deputies can't see them, because obviously I'm the only female on the scene.
They call me there for a reason. I'll search their waistband. I'll ask them to unbutton their pants and pull their pants away from them. At no point in time do I touch them or their private areas. I ask them to pull their pants away from them. If I don't see anything obvious, that would be secreted or, you know, in their underwear, I'll move up and I'll say I want you to leave your shirt down so no one else can see you, but if you're wearing a bra, pull it away from you.
And I will bend down and look up underneath their shirt. So I'm not touching them. Again, I'm not touching them. I've hand [sic] instances where women will hold one side of their bra in and pull the other out, which would tell me that they're hiding contraband in that area. And again, that's where I find it.
In this specific situation, I pull her underwear, her shorts out away from her.
[PROSECUTOR]: Okay, we'll get to that. But first of all, so now when you ask them to do this, are you in any way exposing their intimate parts?
[SGT. ENSOR]: No, absolutely not. I say pull them away from you and I specifically say do not pull them down, just pull them away from you, because I will be honest. I have people on the side of the road that have been arrested and they know the process of strip searches and being in detention, and they have absolutely no problem flashing the entire highway.
And I specifically say, don't pull your shirt up. Leave it down. Just hold it away from you. And I'm going to look up underneath your shirt to make sure you don't have anything. And some will just expose everything and not - you know, and it's no big deal to them. And others, it's just like I said - I use a systematic approach for the searches.
[PROSECUTOR]: Okay, and do you at any point during this, touch the female at all? When you're looking either - like when you ask them to pull their waistband away or when you're looking up underneath their bra?
[SGT. ENSOR]: No, in those two instances, absolutely not. I don't touch them. In some instances, depending on what they're wearing, if I feel like they haven't - you know, they haven't pulled them out away from them enough or that I couldn't really see if they have large breasts, I will use the back of my hand to search the outside of their breasts in the interior.
[PROSECUTOR]: Okay.
THE COURT: Do you - when you ask someone to pull their pants out, do you see - you said nothing is exposed to anybody else, but you can actually see?
[SGT. ENSOR]: I can see. And typically, the portion that I can see is whether or not - I mean, I can see if they have a pad on. I can see basically the front portion. If they're pulling their underwear away from the, I can see like the front of their vagina.
THE COURT: Right.
[SGT. ENSOR]: And obviously if something is exposed, I mean, the strangest things. Like people say, I'm on my period. Or you know, I don't have anything and this instance you pull them away from you, don't pull them down. I specifically say that - just pull them out away from your body. And in this specific instance, there happened to be a condom hanging out.
THE COURT: Okay, so basically when you said no one could see, nobody else could, but you could, but that's the purpose, you have to see because you're conducting the search?
[SGT. ENSOR]: Absolutely.
THE COURT: You ask them specifically to pull their pants away from their body?
[SGT. ENSOR]: I do.
THE COURT: You look in there. You've taken them away from the male deputies, the public and any other people that might be - that privacy might be invaded -
[SGT. ENSOR]: Absolutely. I'm very respectful. I'm a female. I know what it's like. It is, it's an intrusion of their privacy. And if I wasn't 99 percent sure and confident by their reactions and their behavior to my questions and me interacting with them, that they were concealing something on their person, then I would handle it differently. But 99.9 percent of the times with these searches, especially with the influx in heroin and fentanyl coming through, I have found contraband on them.
And that's not looking in their private area. That's something that's clearly exposed when they hold their pants away from their body and not pull them down. I move them - for their safety and well-being and their privacy, I move them away for my officer safety and take myself to another situation where I'm moving them behind the vehicle and I'm by myself and leaving the other male deputies up at the vehicle so that they can't see anything.
THE COURT: Okay, so this is not a strip search?
[SGT. ENSOR]: No, absolutely no.
THE COURT: Okay, go ahead.
[PROSECUTOR]: And when you look down, when they pull their pants away, can you see their vaginal cavity?
[SGT. ENSOR]: Not the cavity, no.
[PROSECUTOR]: And so now have you testified - have you been qualified as an expert in female searches?
[SGT. ENSOR]: I have.
[PROSECUTOR]: In Frederick County?
[SGT. ENSOR]: Yes.
(Emphasis added.)
Turning to the specifics surrounding the search of Ms. Faith, the prosecutor elicited from Sergeant Ensor that she had observed the traffic violation while she and Deputy Storee were both positioned "in the crossover" on "I-70 facing westbound traffic[.]" After receiving a call from Deputy Storee to come perform "a female search," Sergeant Ensor followed her routine practice by positioning Faith between two police vehicles for the search, as follows:
[PROSECUTOR]: And what did you do when you did that search?
[SGT. ENSOR]: Again, my systematic search. I asked her to come back behind Deputy Storee's car.
[PROSECUTOR]: And so when you asked her to come back behind Deputy Storee's car, where was the passenger and the child?
[SGT. ENSOR]: They were still up at the vehicle, because the child needed to be held by her friend. So they were still up at her vehicle in that vicinity on the grass area of the shoulder with Deputy Storee and Deputy Yackovich.
[PROSECUTOR]: And where did you take Ms. Faith?
[SGT. ENSOR]: Behind Deputy Yackovich's canine car.[ ]
[PROSECUTOR]: Okay.
[SGT. ENSOR]: And my car was behind his.
[PROSECUTOR]: And approximately how much space was between the two vehicles, Deputy Storee's and Deputy Yackovich?
[SGT. ENSOR]: I would say maybe three feet.
[PROSECUTOR]: Okay. And did you take her - where did you take her between the two vehicles?
[SGT. ENSOR]: Basically, right at the trunk. And I had them - I will put my back to the other units and what I'll do is I'll have them position themselves so that their back is to traffic but they're also hidden by the vehicle, so none of the other deputies or occupants in the vehicle can see me do my search.
[PROSECUTOR]: Okay. Did you do that with Ms. Faith?
[SGT. ENSOR]: Yes.[ ]
(Emphasis added.)
The prosecutor then inquired about Sergeant Ensor's statements to Ms. Faith before the search began, eliciting the following description of her tactical approach to that conversation:
[PROSECUTOR]: And did you have a conversation with her?
[SGT. ENSOR]: Absolutely. I do with everyone.
[PROSECUTOR]: And what was the nature of the conversation?
[SGT. ENSOR]: Well, obviously, the track marks that were present on her arms, she had a child in the vehicle. I'm a mom myself, and one of my conversations was about her taking her child down the road to Baltimore and she explained that she knew she needed to get clean. She had obvious track marks on her arms. I asked her how long she's been using, because I genuinely care about them and getting clean, we have a conversation about that initially. And that's also my way of detecting their behavior and whether or not they're nervous.
Inconsistencies in their stories with the passengers - because they'll say the last exit that they passed. She did not in this case, but they'll use reference points. And the other passenger will have a completely different story. So I use that, you know, that talking point to build my suspicion, my reasonableness and talking to her about getting clean and her using needles and addicted to heroin.
She was wearing extremely short shorts. And one of the things I look for is whether or not their body is shaking. Because typically when I'm asking personal questions about their drug use, you know, they lie constantly to their families. They lie to their friends about they're going. So when I ask questions about their drug use, they start to become increasingly nervous.
So you know, I was watching her legs and her demeanor. And when I started to ask the other questions about how long have you been using, who got you hooked on that? Like how long? And she said, I know, I need to quit. I and [sic] reached up and looked at her arm. You know, very softly, like turned her arm around to look at the track marks. And I noticed that her arm was shaking really bad. Fast.
You know, but almost - you know, obviously not a cold shake, but she was shaking. So that's when I told her that I'm going to search you. I've been doing this for 15 years, and if you're hiding something on your person or in your vagina - I said that to her - or in your vagina, I will find it.
And it's a tactic that I use to get them to talk to me about, you know, what's going on, what they might have on them. And she still - she still denied the fact that she had anything on her.
(Emphasis added.)
Next, the prosecutor focused on Sergeant Ensor's inspection of Ms. Faith's vaginal area, as follows:
[PROSECUTOR]: Okay. And so what did you do next?
[SGT. ENSOR]: That's where I start my systematic search. And I start with her shorts, not pants at the time - and I'll say unbutton your shorts. Don't pull them down. I'm very specific. Unbutton your shorts, don't pull them down. I want you to pull them away from your body. And when she did that is when I saw the condom protruding.
[PROSECUTOR]: Okay. And what did you do at that point? Did you touch her?
[SGT. ENSOR]: No. I looked at her and I said, come on. You know, like - I saw it, come on. And we actually had an intelligible conversation about the fact that, you know, she said it's not mine. I don't do coke. Dealer is in Cumberland. I carry it back for them. They give me heroin. It was an honest conversation that we had about what she was holding. I didn't touch her. I asked her to walk back up to the car and I asked Deputy Yackovich to grab me a bag.
[PROSECUTOR]: Okay, and when she told you about the - going up to Cumberland and all that, was that in response to a question you asked?
[SGT. ENSOR]: No. It was conversation because she knew that I saw it.
[PROSECUTOR]: So you looked at her and said come on, and she said what?
[SGT. ENSOR]: Right, because I said, tell me if you have anything on you. I'm going to find it. And as soon as she pulled her pants away from her body and her underwear, there was a clear condom that would be the shaft portion of the condom hanging out like down in her underwear. It was very obvious. So of course I looked at her, and I said, come on. Like - you just lied to me. I see it. And then it was a conversation.
It wasn't me questioning her - whose is it? Where did you get it? You know, I didn't ask her any questions because I knew it was there. I saw it. So I asked Deputy Yackovich for a bag and she elected not to go back to be stripped searched and said no, I can just get it myself. Fully clothes [sic]. Shorts up, underwear up. She said she could retrieve it herself and did so, with only me watching her after Deputy Yackovich handed me the bag.
[PROSECUTOR]: And did you offer her to go back to the Law Enforcement Center to retrieve it?
[SGT. ENSOR]: Yes.
[PROSECUTOR]: And what did she say?
[SGT. ENSOR]: She said no, I can get it myself. I'll get it out.
[PROSECUTOR]: So where did she got [sic] to retrieve it?
[SGT. ENSOR]: Obviously that needed to be a little bit - a little more private so I wouldn't have her like squat down behind the vehicle to get it, we walked back up to her vehicle and she saw [sic] on the edge of the passenger seat. And again, the deputies were not around when she was retrieving it. I ensured that they weren't watching her and nobody was looking at her, not even her friend and her child were in close proximity, because she specifically didn't want her child to see.
[PROSECUTOR]: Was this the passenger side door facing the road or facing the shoulder?
[SGT. ENSOR]: The shoulder, facing the grass area. And the door was obviously blocking it. Deputy Storee's car was behind hers. And she's full clothed when she reaches in her underwear and pulls the condom out of the side of her shorts.
[PROSECUTOR]: Okay. And at any point, did she expose her vagina?
[SGT. ENSOR]: No, and she actually - she pulled the condom out of the side of her shorts and she put it in the bag for me.
[PROSECUTOR]: Okay, and she was the one that suggested that she do that, correct?
[SGT. ENSOR]: Yes ....
[PROSECUTOR]: Did you ask her any questions before she said that?
[SGT. ENSOR]: No. Just about like how long have you been using, not specific to the drugs or what I saw, no.
[PROSECUTOR]: Okay.
[SGT. ENSOR]: I just looked at her and I said come on. I mean, it's obvious what it is. Girls don't - it's not natural for a girl to store a condom in her vagina.
[PROSECUTOR]: And after you retrieved it, did she remain clothed the whole time?
[SGT. ENSOR]: Yes.
(Emphasis added.)
At that point, the prosecutor asked Sergeant Ensor to explain why she searches suspects at the side of the road, rather than after transporting them to the Law Enforcement Center:
[PROSECUTOR]: Why do you do a female search on the scene as opposed to going back to the Law Enforcement Center right away?
[SGT. ENSOR]: One, for their safety, health reasons. If they're carrying something like that inside of their body -
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[PROSECUTOR]: Your Honor, I think it's relevant. According to the case law, I mean, whether or not it's reasonable for them to have been doing this type of search where they were doing it.
THE COURT: Okay. Overruled.
[PROSECUTOR]: So what's the reasons that you do this?
[SGT. ENSOR]: Well, I mean, many factors come into play. Number one, it's not a strip search on the side of the road. If there's something concealed that I truly - I can't see by asking them to pull their clothing away from them, but I still believe based on their demeanor, their inconsistencies in their stories, their body language, you know, often times they'll look at the other occupant that's not close to them, whether it be a male or female and you can see that they're reading off of them to see, you know, oh, crap, do they know?
Did they tell them anything? It's body language that I've watched for 15 years. So these systematic searches, they're not strip searches on the side of the road. At no point in time is any part of their body exposed. If I needed to do a strip search because I truly cannot see or can't find that contraband, but I have reasonable suspicion, there's needles in the car. There's needle caps. There are inconsistencies in their stories. And I suspect that they are concealing something, that is when we'll take them back and do a strip search.
Doing these types of searches on the side of the road when no parts of their body are exposed and they're more than willing to get the drugs out themselves and hand them to me, quite honestly most of the time, the females will just give it to me. I tell them, I am confident that you have something on you. And they will give me the drugs.
[PROSECUTOR]: And does that negate the need for a strip search back at the Law Enforcement Center a lot of times?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[PROSECUTOR]: As a result of this, did you need to conduct a strip search of Ms. Faith?
[SGT. ENSOR]: No.
(Emphasis added.)
At the outset of cross-examination, defense counsel confirmed that Sergeant Ensor's roadside search of Ms. Faith was consistent with her frequent practice:
[DEFENSE COUNSEL]: Sergeant Ensor, you do this a lot?
[SGT. ENSOR]: Yes, sir.
[DEFENSE COUNSEL]: Okay, so how many times have you seen somebody's vagina on the side of the road, would you estimate?
[SGT. ENSOR]: I'm not - can you rephrase the question? I'm not sure what you -
[DEFENSE COUNSEL]: I'll withdraw the question.
Defense counsel then elicited additional details about Sergeant Ensor's search of Ms. Faith:
[DEFENSE COUNSEL]: I'm going to approach with what's marked as Defense Exhibit No. 1. Can you flip through those and tell me if you recognize those?
[SGT. ENSOR]: Recognize a pair of shorts?
[DEFENSE COUNSEL]: Yes. Do you recognize that outfit?
[SGT. ENSOR]: I'm not sure what you're asking me. If they're similar to the ones that she was wearing, as far as length - I don't know if they're the exact shorts that she was wearing, if that's what you're asking me. But as far as length, with the pockets hanging out about two inches and extremely short, they're similar to the ones that she was wearing, but I don't know it they're the exact pair ....
[DEFENSE COUNSEL]: All right, so you say systematically that your search involves two parts, one in the shorts and one in the shirt, is that correct?
[SGT. ENSOR]: Typically, yes, where contraband is concealed.
[DEFENSE COUNSEL]: Okay. And in this case, you looked both in her shirt as well as in her shorts?
[SGT. ENSOR]: Shorts first ....
[DEFENSE COUNSEL]: So in this specific case, you told her to unbutton your shorts, and to pull your shorts out towards you so that you could see inside?
[SGT. ENSOR]: Correct. Obviously, if she leaves them buttoned, she can't pull that and her underwear away for me to see in her underwear.
[DEFENSE COUNSEL]: And so you also tell her to pull her underwear out?
[SGT. ENSOR]: Away from her body, correct.
[DEFENSE COUNSEL]: And that allows you to see her genitalia?
[SGT. ENSOR]: I can see the front portion of her vagina, correct.
[DEFENSE COUNSEL]: You saw enough of her vagina in this case where you were able to describe it as a condom protruding from her vagina?
[SGT. ENSOR]: I saw enough of a condom coming out of her vagina in her underwear, correct.
(Emphasis added.)
Inside the condom that Faith removed at the scene were "18 individual bags[,]" each "weighing the same amount," and "another bigger bag[,]" with all 19 bags containing what "looked to be" crack cocaine. At that point, Faith "was placed under arrest]" handcuffed, and "read ... her Miranda rights." Her companion was also arrested and handcuffed "after the female search." Thereafter, Faith
admitted that she went up to Baltimore to get drugs from a supplier for a drug dealer back in Cumberland. That drug dealer gets fronted drugs from a supplier in Baltimore and she takes them back and gives them to that drug dealer in exchange for her own personal getting drugs back from that dealer in Cumberland.
The State argued that the search did not violate Fourth Amendment protections because "[t]he amount of intrusion on the defendant was extremely minimal" given that Ms. Faith "was not exposed to anyone other than Sergeant Ensor[,]" who "took every step possible to try and ensure this defendant's privacy." Pointing to cases in which "the intrusion was far greater[,]" the prosecutor emphasized that there was no touching or "manipulation" of the body, no removal of clothing, and "no testimony ... that the passenger or her child could see anything" or "that vehicles were stopping and looking." To the contrary, the prosecutor argued, this roadside search "led to a benefit of the defendant, a lesser intrusion" in that Faith did not have "to go back to the Law Enforcement Center and have a full strip search."
Defense counsel challenged the constitutionality of both the roadside search and the custodial interrogation. Counsel argued that "[w]e have a strip search" under the Court of Appeals's definition, which expands that term beyond removal of clothing to include any "rearrangement of some or all clothing to permit the visual inspection of the skin surfaces of the genital areas, breast, and/or buttocks." According to defense counsel, because Faith was required "to unbutton her pants, to pull her pants out, to expose her vagina[,]" allowing Sergeant Ensor "to visually observe ... the genital vaginal cavity of Ms. Faith" where she saw "a condom coming out[,]" the scope of the search was "a visual body cavity search[.]"
Disputing the justification for that type of search, defense counsel insisted that even though "[t]he sergeant may think that she's concealing drugs, ... you can't strip search somebody on a hunch." In support, counsel argued that the search could not have been incident to arrest because "there has been no testimony that the dog hit or that they found evidence in the car prior to this strip search taking place." At best, he maintained, the "dog hit" gave police "probable cause to search the car, not the former occupants."
Moreover, defense counsel objected that Sergeant Ensor had no "reason to conduct it now as opposed to in a different manner at the Law Enforcement Center or at the detention center[.]" Regarding the manner and location of the search, counsel argued:
It was on side of 70 in front of the former occupants of the vehicle, in front of the other deputies. And it's in a position where there's three marked patrol vehicles all with their lights flashing, moderate to heavy traffic. I think it's a fair inference that every single person that passes by is watching and looking at what's going on.
In these circumstances, counsel contended that the search was unconstitutional:
So for all of these reasons, I think every one of these factors cuts in favor of suppression. I think that the entire public policy surrounding the exclusionary rule is to deter this kind of behavior by the police. What you have is a police officer systematically conducting strip searches on the side of the road. And that's a bad place for us to be. And ... if you exclude the evidence, sure, in this particular case, a potential criminal may go free. But that's the price that we pay to make sure that this kind of behavior doesn't continue on and I believe that that's the place where we are here today.
(Emphasis added.)
With respect to Faith's incriminating statements, defense counsel argued that the unlawful search was compounded by unlawful custodial interrogation:
What we have is an interrogation during the strip search. She made incriminating statements. Then Ms. Faith was Mirandized and then she gave an incriminating statement. It's a classic two-step interrogation procedure that should be suppressed in violation of Miranda, in violation of the Maryland Declaration of Rights.
(Emphasis added.)
The suppression court denied Faith's motion to exclude the evidence recovered in the search but questioned the admissibility of her statements made without a Miranda warning. In response, the State argued that after Faith was placed under arrest by Deputy Storee and Mirandized, "it's a break" with subsequent incriminating statements made to "a separate officer." The court then took the Miranda issue under advisement and allowed counsel to submit authority on the issue. At a later hearing, the suppression court ruled that Faith's statements before she received Miranda advisements were inadmissible but declined to exclude subsequent statements.
After the drug evidence obtained from the roadside search and the admissible statements were presented via an agreed statement of facts, the trial court, sitting as fact-finder, convicted Faith of possessing cocaine with the intent to distribute. Ms. Faith was sentenced to twenty years with all but eighteen months suspended, plus three years of probation. This timely appeal followed.
DISCUSSION
Faith contends that "the trial court erred in denying [her] motion to suppress the evidence recovered from [the] strip search conducted in the open on the side of Interstate 70 in the presence of two civilians and other officers in which her underwear was pulled from her body and her vaginal area was exposed." Applying lessons from Paulino v. State , 399 Md. 341, 924 A.2d 308 (2007), and other modality cases addressing sexually invasive searches, we conclude that this roadside search was unreasonable, and therefore unconstitutional, in light of the manner, location, and non-exigent circumstances in which it was conducted. Our reasoning follows.
I. Fourth Amendment Standards Governing Sexually Invasive Searches
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures shall not be violated[.]" U.S. Const. amend. IV. Applicable to the States through the Fourteenth Amendment, this constitutional guarantee "prohibits searches that are 'unreasonable under the circumstances.' " Paulino v. State , 399 Md. at 349, 924 A.2d 308 (citation omitted). Under established Fourth Amendment jurisprudence, the State bears the burden of rebutting the presumption that a warrantless search, such as the one at issue here, was unreasonable. See id. at 348, 924 A.2d 308.
Evidence obtained as a result of an unconstitutional search may be challenged via a motion to suppress. See Sizer v. State , 456 Md. 350, 364, 174 A.3d 326 (2017). Appellate review of a suppression ruling requires that
we defer to that court's findings of fact unless we determine them to be clearly erroneous, and, in making that determination, we view the evidence in a light most favorable to the party who prevailed on that issue, in this case the State. We review the [suppression] court's conclusions of law, however, and its application of the law to the facts, without deference.
Taylor v. State , 448 Md. 242, 244, 137 A.3d 1029 (2016) (citations omitted).
"Police are allowed to conduct a search incident to arrest in order 'to remove any weapons the [arrestee] might seek to use in order to resist arrest or effect his escape ... [or] to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.' " Paulino , 399 Md. at 350, 924 A.2d 308 (quoting Chimel v. California , 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), overruled in part on other grounds in Arizona v. Gant , 556 U.S. 332, 129 S. Ct. 1710, 173 L.Ed.2d 485 (2009) ). Because "searching without a warrant is always considered a strictly limited right that grows only out of the inherent necessity of the situation at the time of the arrest[,]" "[i]n the situation where the destruction or removal of evidence is urged as justifying a warrantless search, it must be a situation where there was an immediate, urgent, and compelling need for the police action." Stackhouse v. State , 298 Md. 203, 215-16, 468 A.2d 333 (1983). "Where a warrantless search is based upon the destruction or removal of evidence[,] the surrounding circumstances must present a specific threat to known evidence." Id. at 213, 468 A.2d 333. Moreover, "the burden of establishing exigent circumstances is on the State, and ... the facts and circumstances upon which the question of reasonableness depends must be viewed in the light of established fourth amendment principles." Id. at 217, 468 A.2d 333.
Under this "exigency rationale," police may search an arrestee's outer garments, including pockets. See Paulino , 399 Md. at 351, 924 A.2d 308 ; Stackhouse , 298 Md. at 211-12, 468 A.2d 333. But the Fourth Amendment "protects an arrestee's privacy interests in his person and prohibits bodily intrusions that 'are not justified in the circumstances, or which are made in an improper manner.' "
Paulino , 399 Md. at 351, 924 A.2d 308 (quoting Schmerber v. California , 384 U.S. 757, 768, 86 S. Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) ). When a search proceeds beyond "a routine custodial search," to a strip search, body cavity search, or other sexually invasive search, "the necessity for such an invasive search must turn upon the exigency of the circumstances and reasonableness[,]" because "[w]ithout the constitutional safeguards of exigent circumstances and reasonableness, every search incident could result in a strip search." Id. at 351, 924 A.2d 308.
The Fourth Circuit recently reviewed the analytical framework used to evaluate sexually invasive searches, as follows:
When ... a search involves "movement of clothing to facilitate the visual inspection of a [person's] naked body," the search qualifies as a type of "sexually invasive search." United States v. Edwards , 666 F.3d 877, 882-83 (4th Cir. 2011) (citations omitted). To determine whether a sexually invasive search is reasonable, we employ the test adopted in Bell v. Wolfish , 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L.Ed.2d 447 (1979).
Under the Bell framework, we balance the invasion of personal rights caused by the search against the need for that particular search. 441 U.S. at 559, 99 S. Ct. 1861. Pursuant to Bell , we examine the search in its complete context and consider the following factors: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed. Id.
.... [W] observe that a sexually invasive search "constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual." Courts have described such searches, including strip searches, as terrifying, demeaning, and humiliating. When the scope of a search exceeds a visual inspection of an individual's naked body, the magnitude of the intrusion is even greater.
Sims v. Labowitz , 885 F.3d 254, 260-61 (4th Cir. 2018) (emphasis added; some citations omitted).
In reviewing a sexually invasive search, appellate courts are charged with "taking into account the relative strength of each factor and balancing the need to ferret out crime against the invasion of personal rights[.]" Williams v. State , 231 Md. App. 156, 185, 149 A.3d 1220 (2016), cert. dismissed , 452 Md. 47, 156 A.3d 753 (2017). Accordingly, " Bell requires that a reviewing court, when assessing the reasonableness of a search under the Fourth Amendment, balance 'the need for a particular search against the invasion of personal rights that the search entails.' " Paulino , 399 Md. at 355, 924 A.2d 308 (quoting Bell , 441 U.S. at 559, 99 S. Ct. at 1884 ). Even when police have sufficient grounds for a sexually invasive search,
there is also the distinct question of the modality of conducting such a search. The concern in such a case is not with justification at all, but rather with the manner in which even a fully justified further search or examination is carried out. Those modality concerns focus on such things as privacy or unnecessary embarrassment or hygienic conditions or, in the more extreme cases, medical risk to the health of the suspect.
State v. Harding , 196 Md. App. 384, 397, 9 A.3d 547 (2010), cert. denied , 418 Md. 398, 15 A.3d 299 (2011).
II. Paulino v. State
Maryland appellate courts have addressed modality concerns regarding undue invasion of privacy in a number of appeals challenging sexually 

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