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4th Cir.: Search of “sexting” suspect unreasonable

Even acting pursuant to a warrant, a police detective was not entitled to qualified immunity for compelling a teenager to perform a sexual act.


In 2014, Manassas police detective David E. Abbott investigated allegations that 17-year-old Plaintiff T. Sims used his cell phone to send sexually explicit photos and videos of himself to his 15-year-old girlfriend. In the course of the investigation, Abbott obtained a search warrant from a Virginia magistrate authorizing a search for “[p]hotographs of the genitals, and other parts of the body of [Sims] that will be used as comparisons in recovered forensic evidence from the victim and suspect’s electronic devices. This includes a photograph of the suspect’s erect penis.”

In execution of the warrant, Abbot transported Sims from his home to a juvenile detention center. In a locker room at the center, Abbott and two other uniformed, armed officers ordered Sims to pull down his pants so that photos could be taken of his penis. After Sims complied with this order, Abbott instructed Sims “to use his hand to manipulate his penis in different ways” to obtain an erection. Sims was unable to comply. The next day, Abbott told Sims’s attorney that if Sims could not achieve an erection manually, Sims would be taken to a hospital for an erection-producing injection. Abbott obtained a second search warrant for this purpose.

Before this second warrant was executed, however, the Manassas Police Department issued a statement explaining that its policy didn’t permit “invasive search procedures of suspects in cases of this nature.” Additionally, the Commonwealth’s Attorney condemned the first search of Sims.

Ultimately, the Commonwealth chose not to pursue the second warrant and tried Sims for felony possession of child pornography without introducing any photos of Sims’s genitalia.  The juvenile court found the evidence sufficient to convict, but did not make a finding of guilt and suspended imposition of sentencing for a year, during which time Sims was to perform community service and not use social media or send text messages. Sims completed these terms in August 2015, at which point the court dismissed the charge against him.

Sims initiated this action against the administrator of Abbott’s estate (Abbott had passed away), asserting claims under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights and under 18 U.S.C. § 2255 seeking damages as the victim of manufactured child pornography. The district court dismissed Sims’s complaint, and this appeal followed.


Although the intrusion suffered by Sims was neither physically invasive nor put him at risk of direct physical harm, the search nonetheless was exceptionally intrusive. First, Abbott sought to do more than visually inspect Sims’s genitalia. He attempted to photograph Sims’s penis in an aroused state. Further, the manner that Abbott employed to execute the warrant – namely, ordering Sims to masturbate to obtain an erection – required that Sims perform a sex act in the presence of three armed officers. Such alleged conduct necessarily invaded Sims’s bodily integrity, even though no part of his body was penetrated or physically harmed. Abbott’s search, directed at forcing Sims to achieve an erection, intruded upon an area in which our society recognizes a significantly heightened privacy interest. Requiring Sims to masturbate in the presence of others, like searches involving penetration of genitalia, constituted the ultimate invasion of personal dignity.

Moreover, this sexually intrusive search was rendered more egregious by being conducted in a manner that would instill fear in Sims. Here, Sims alleged that he was “surrounded” by three armed officers as he questioned whether he was required to submit to Abbott’s orders. Upon Abbott’s insistence, Sims ultimately attempted to comply. Sims further alleged that the search caused him to suffer emotional harm.

Accordingly, both the outrageous scope of the sexually intrusive search and the intimidating manner in which the search was conducted weigh strongly against any finding that the search was reasonable.


Abbott sought to obtain photographs of Sims’s erect penis for an evidentiary purpose – namely, to compare these photographs with the forensic evidence obtained from the cell phones seized from Sims and his girlfriend. However, the Commonwealth ultimately agreed not to use the photographs of Sims’s body as evidence, and the juvenile court nevertheless concluded that the evidence was sufficient to find that Sims had committed the offense of possession of child pornography. Thus, the record demonstrates that there was no evidentiary need to seek a photograph of Sims’s erect penis.

This court cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others. Sexually invasive searches require that the search bear some discernible relationship with safety concerns, suspected hidden contraband, or evidentiary need. Here, there was no justification for Abbott’s alleged conduct executing the search of Sims’s body, and the semi-private location of the search didn’t mitigate the overall circumstances of this exceptionally intrusive search.

Accordingly, Sims sufficiently alleged a violation of his Fourth Amendment right to be free from the sexually invasive search of his person.

Qualified immunity

Although there are state and federal district court decisions involving lawful visual inspection of a suspect’s penis, such searches were justified by an evidentiary need to confirm certain characteristics of the perpetrator’s genitalia, and none of the searches required that the individual achieve an erection or masturbate in the presence of others. Thus, the type of search conducted here by Abbott far exceeded the intrusions into privacy described in those state and federal district court decisions.

Additionally, the fact that Sims was a minor at the time of the alleged events should have caused a reasonable officer even greater concern in seeking a warrant and in executing the sexually invasive search. The U.S. Supreme Court has explained that minors are more susceptible than adults to influence and psychological damage. Therefore, officials taking minors into custody must preserve and promote the welfare of the child. In conducting sexually invasive searches of minors, officials must employ extreme caution because minors are especially susceptible to possible traumas affiliated with such searches. Accordingly, Abbot should have been aware that any assessment of the legality of a sexually invasive search of a 17-year-old required additional considerations based on the child’s age.

Because there was no justification for the alleged search to photograph Sims’s erect penis and the order that he masturbate in the presence of others, the court concludes that well-established Fourth Amendment limitations on sexually invasive searches adequately would have placed any reasonable officer on notice that such police action was unlawful. The alleged conduct plainly did not qualify as the type of “bad guesses in gray areas” that qualified immunity is designed to protect.

The fact that no other court decisions have directly addressed circumstances like those presented here does not alter the court’s conclusion. For good reason, most outrageous cases of constitutional violations are rarely litigated. Abbott’s conduct affronted the basic protections of the Fourth Amendment, which at its core protects personal privacy and dignity against unjustified intrusion by government actors.

Nor is the court’s conclusion altered by the fact that Abbott first obtained a warrant to photograph Sims’s erect penis. The fact that a search warrant has been obtained does not in itself confer immunity if it was objectively unreasonable for the officer to rely on the warrant. Here, the obvious, unconstitutional invasion of Sims’s right to privacy that was required to carry out the warrant rendered reliance on that warrant objectively unreasonable, thereby eliminating the protection that a search warrant typically would have afforded.

For these reasons, the court concludes that the district court erred in dismissing Sims’s § 1983 Fourth Amendment claim on the basis of qualified immunity.

Vacated in part, affirmed in part, and remanded.


(King, J.) With great respect for my good colleagues, their decision fails to recognize the controlling facts that undermine Sims’s § 1983 claim. That is, Abbott was acting pursuant to the advice of counsel and adhering to a court order. In my view, Abbott’s actions were entirely consistent with applicable law and the Fourth Amendment. I would affirm the district court.

Sims v. Labowitz, Case No. 16-2174, Mar. 14, 2018. 4th Cir. (Keenan), from EDVA at Alexandria (Hilton). Victor M. Glasberg for Appellant; Julia Bougie Judkins for Appellee. VLW No. 018-2-053, 29 pp.

VLW 018-2-053

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