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State v. Clark11/23/1982
This is an appeal from a judgment of conviction for first degree theft. More specifically, defendant-appellant Clark appeals an order denying her motion to suppress as evidence currency recovered from her vagina during a warrantless, nonconsensual, stationhouse search conducted approximately four hours after her arrest. The lower court held that the search contravened neither U.S. Const. amend. IV nor Hawaii Const. art. I, § 7, being incident to a valid arrest and being supported by probable cause and exigent circumstances. We reverse.
I.
On December 9, 1979, at approximately 12:30 in the morning, Clark was arrested by a policeman on routine street patrol for first
degree theft of U.S. currency from complainant. The complainant stated that about an hour prior to Clark's arrest he had arranged to meet her and another woman in his hotel room, where they were to engage in sexual relations with him for a fee. The meeting occurred, prior to which, he stated, he placed $950 in $100, $50 and $20 denominations in his coat pocket in the bathroom.
While he was in the bedroom with the other woman, Clark went to the bathroom. When he subsequently went to check his money, both women first tried to prevent him from so doing, and then ran out the door. Upon finding his money missing, he pursued them to the street, where he caught Clark about five minutes later. She was arrested soon thereafter.
About forty-five minutes after her arrest, she was taken to the police station. There, she testified, she was initially placed in a holding cell with six other women for some time.
A police matron was one of two females assigned to the booking desk at the time. As part of the booking process, she took Clark into an adjacent bathroom to conduct a strip search of Clark involving the removal of all clothes. The matron found $60 in Clark's outer garments, and $20 in her underclothes, all in $20 denominations. The matron characterized this as a "custodial search."
The matron then attempted a visual vaginal cavity search of Clark, a procedure which involved the arrestee bending over and the matron spreading the arrestee's buttocks from the rear and looking up her vagina. Asked why this additional search was sought, the matron testified that it was standard practice to conduct such a search of any person, particularly a prostitute, arrested for theft. Although she had not been told by anyone that Clark might be secreting currency in her body cavities, the matron testified that she was aware that Clark had been arrested for the theft of more currency
than had thus far been found. Locating the additional currency, she testified, was her sole reason for undertaking the visual cavity search. She broke off her attempt when Clark refused to cooperate.
Where Clark was next confined is not clear. A police officer testified that Clark was placed back in a holding cell with other women, while Clark testified that she was placed alone in a cell with a toilet.
While Clark was so confined, the matron informed the investigating detective of Clark's refusal to allow the visual cavity search and of the matron's suspicion that Clark was concealing currency in her vagina. With this information and the information from complainant on the alleged theft, the detective concurred and determined that a vaginal search of Clark be performed by a city doctor. Such a search was performed at a nearby sterile room by the doctor with the matr
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