The Oregon Court of Appeals held that police conducted a "dehumanizing and humiliating" illegal warrant less search when three officers handcuffed a criminal defendant and forcibly spread his buttock cheeks apart to find a baggie of cocaine "pressed against" his anus.

Portland, Oregon police officers Sparks and Wells were conducting an undercover "spotting mission," watching for drug buys in a high drug traffic area of Portland dubbed "Crack Alley." Through binoculars, Sparks observed Herbert Lee Scruggs, Jr., making what appeared to be a hand-to-hand drug transaction. After observing an apparent second transaction, Sparks called uniformed officers in to detain Scruggs.

As police approached, Scruggs ran. Officer Ajir apprehended and arrested him a few minutes later. When a search revealed cash but no drugs, Officers believed that Scruggs still had drugs concealed on his body. So Scruggs was transported to a local precinct station for a "more intrusive search."

Police knew that it is a common practice for drug dealers to hide drugs in their anal cavities -"keistering" - or pressed between their buttock cheeks. So, after ordering Scruggs to remove his clothes, "Wells . . . ordered him to bend over, to use his own hands to spread apart his buttock cheeks, and to cough so that Wells could see if there were drugs inside defendant's anus."

Scruggs "halfheartedly" complied, preventing Wells from observing anything. Wells then handcuffed Scruggs "and, with the help of Sparks and another officer, physically bent defendant over," the court found. "Wells saw that defendant was clenching his buttocks together, and Wells proceeded to physically and forcibly spread them open. The officers then spotted a plastic baggie pressed against, but not inside, defendant's anus."

Officers claimed that no "portion of the bag was technically inside of” Scruggs, so Wells "pulled out" the bag, which contained cocaine.

Scruggs was booked into jail on drug possession and delivery charges. He moved to suppress the evidence seized during the warrant less strip search.

The trial court found that the search "goes beyond what's reasonable" because "it is such a deep intrusion into somebody's privacy, and there really is no exigency." Nevertheless, the court denied the motion based on the "inevitable discovery doctrine," finding that the drugs would have been discovered during the jail intake strip search. Scruggs was ultimately convicted of unlawful delivery of cocaine within 1,000 feet of a school.

The Court of Appeals reversed. "Defendant was subjected to a search - a strip search and then the forcible manipulation of his body and his buttocks to locate evidence therein - that was dehumanizing and humiliating," the court found. "We conclude, as did the trial court, that the search of defendant was a 'deep intrusion' into his privacy. The trial court did not err in concluding that the search was not reasonable in scope or intensity."

The court then found that the "inevitable discovery doctrine" did not save the contested evidence from suppression. Noting that the State conceded that it was unclear which of two strip search policies controlled jail strip searches, the court accepted the State's additional concession that it had not met its burden of establishing that the evidence would have been inevitably discovered. See: State v. Scruggs, 274 Or App 575, _ P3d _ (2015).

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