Baker, J.
Taccasia Porter was a passenger in a vehicle that was pulled over for a routine traffic stop. During the stop, the officer noticed an odor of marijuana emanating from Porter’s person. An initial search revealed no contraband, so the officer decided to conduct a more thorough search. Therefore, on the side of a public road, with no evidence of any measures taken to protect Porter’s privacy or any law enforcement need to conduct the search right then and there, the officer pulled Porter’s jeans away from her body and inserted her hand inside Porter’s jeans. 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. While the initial pat-down search was permissible, we find that the subsequent search ran afoul of both the federal and state constitutions.
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The purposes of a search incident to arrest are to ensure officer safety and to prevent destruction of evidence. United States v. Robinson, 414 U.S. 218, 227-28 (1973). Even if a search incident to arrest is permissible, it must still be conducted in a reasonable manner. …
Bell v. Wolfish, 441 U.S. 520, 559 (1979). In conducting this analysis, there are four factors to consider: (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted.
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As to the first Bell factor, the scope of the intrusion, Officer Wren testified that the second search included the use of force to pull Porter’s jeans away from her body: “her jeans were really tight so that I recall I had to really, like pull her jeans out in order to get my hand in there.” …
It is well established in our culture that “people have a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have their ‘private’ parts observed or touched by others.” Justice v. Peachtree City, 961 F.2d 188, 191 (11th Cir. 1992) …
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In the instant case, Officer Wren did not lower Porter’s pants at all or visually observe any of Porter’s private areas … But the officer did strenuously pull Porter’s pants away from her body, insert her hand between the pants and underwear, and then insert her hand between the underwear and Porter’s body. So, while the scope of intrusion was arguably not as great as in Battle, it was still significant.
… The record reveals that Officer Wren is a woman. She testified that she had been trained on performing a search, but she did not testify as to the content of that training or whether she followed it. And there is no evidence as to whether she conducted herself professionally, whether she wore gloves or followed proper procedures, or whether she attempted to protect Porter from public embarrassment. … The State has the burden of proving the reasonableness of the search, and it did not establish that the search was conducted in a reasonable manner.
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… There is no evidence that Porter had made any furtive movements, that she resisted in any way, or that she presented any threat to the officers. Officer Wren voiced zero concerns about officer safety, nor did she testify that she was concerned that if Porter was concealing drugs, she would have been able to destroy, discard, or further hide that evidence before a full search could be conducted in a more private area. …
… There is no evidence that Officer Wren took any precautions to block Porter from the view of any passersby on the street or sidewalk or the two men at the scene. Simply put, the evidence presented at trial was that the search took place in a public place, with no evidence that Porter was shielded from public view.
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Having examined all of the Bell factors, we are compelled to conclude that this search was unreasonable under the Fourth Amendment. … Therefore, the evidence of the marijuana found pursuant to the second, more invasive search should have been excluded.
Although Article I, Section 11 of the Indiana Constitution shares the same language as the Fourth Amendment, we interpret and apply the provision independently. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). … The State bears the burden of showing that the intrusion was reasonable. …
With regard to the degree of intrusion, we must consider “the nature of the privacy interest upon which the search intrudes and the character of the intrusion itself.” Chest v. State, 922 N.E.2d 621, 624 (Ind. Ct. App. 2009). As noted above, the privacy interest in this case—the sanctity of one’s most private areas—is of the highest degree. … There is also no evidence that Officer Wren took sanitary precautions, such as using plastic gloves to conduct the search. Thus, the degree of intrusion was significant.
Finally, as to the extent of law enforcement needs, the State presented no evidence of an immediate need to search Porter on the side of the road, rather than taking her to a more private area such as a police vehicle, police station, or jail. Cf. Powell, 898 N.E.2d at 331 …
Having considered the three factors, we can only conclude that the search in this case was unreasonable under the Indiana Constitution. … Consequently, the admission of this evidence was also erroneous under the Indiana Constitution.
The judgment of the trial court is reversed.
Bailey, J., concurs. Altice, J., concurs with a separate opinion.