Civil Rights – Man didn’t consent to invasive strip search

Where an officer sued for conducting an invasive strip search argued the plaintiff consented to the search, but his alleged “consent” occurred after two searches already happened and was ambiguous, summary judgment cannot be granted based on the consent exception.

Background

Khalil Braxton claims that Lynchburg Police Detective G.L. Waterman “conducted an invasive strip search” of him that violated his rights under the Fourth and Fourteenth Amendments. He also claims Waterman assaulted him and acted with willful and wanton negligence during the search. Waterman argues he is entitled to summary judgment.

Search

Waterman argues the search is “analogous to a search incident to arrest” and that this exception does not actually require a formal arrest to have occurred to apply, citing Cupp v. Murphy, 412 U.S. 291 (1973). The Supreme Court in Cupp found a brief search under the defendant’s fingernails during a police interview shortly after the defendant’s wife was found strangled in their apartment to be a lawful search incident to arrest (even though the defendant was not actually arrested until a month later).
Cupp is factually distinguishable. First, Braxton was never formally arrested as the substances at the scene did not contain narcotics. And second, Waterman’s search was far more invasive, and more akin to a full search, than the limited search under the defendant’s fingernails in Cupp. As such, a reasonable jury could not conclude this search is a search incident to arrest.

Consent

Waterman next argues that Braxton consented to the entire search. This conversation, however, occurred after two searches already happened. Moreover, Braxton’s statements are inconsistent as to whether he is giving consent (“there’s a difference between searching and feeling for something” versus “go ahead”). Thus, summary judgment cannot be granted based on the consent exception.

Terry

Waterman also argues the search was “objectively reasonable and entirely permissible” under the Terry v. Ohio, 392 U.S. 1 (1973). Braxton traveled in a vehicle with Page, a “criminal gang member” who had been “on the run for some time,” and Scott, who also had a history of drug crimes. As Waterman searched the vehicle, he found suspected drugs and paraphernalia—all on the backseat within Braxton’s immediate control. Under a totality of the circumstances, and because the officers reasonably believed they had discovered drugs within Braxton’s area of control, they had reasonable suspicion that Braxton was “armed” or “presently dangerous to the officers.”
A reasonable jury, however, could conclude that the scope of Waterman’s search exceeded a Terry frisk. First, Braxton had already been frisked by Reed and placed in handcuffs when Waterman began his search. Second, Waterman immediately began emptying the contents of Braxton’s pockets at the beginning of the search. Third, Waterman and the officer assisting him framed the search between Braxton’s legs as evidentiary—saying “that is where people hide coke”—rather than as a search for officer safety.

Qualified immunity

To be shielded from liability because of qualified immunity, Waterman must establish either: (1) that he did not violate the constitution or (2) that the constitutional right he violated was not “clearly established” “at the time of the alleged violation.” The court finds first that it is clearly established that Terry frisks cannot include reaching into a suspect’s pockets unless an officer reasonably believes a weapon is present. It is also clearly established that officers cannot use Terry frisks to look for evidence of a crime.
The court cannot grant Waterman’s motion for summary judgment on these qualified immunity grounds. However it is not clearly established that an officer cannot incidentally touch a suspect’s genitals when performing a Terry stop.

Fourteenth Amendment

Waterman argues that Braxton’s unreasonable search claim under the Fourteenth Amendment is barred as it is not the “proper vehicle” for such a claim. As Braxton does not argue this point, this cause of action is deemed abandoned, and the court will grant summary judgment.

State claims

Waterman asserts “Braxton’s state law claims rely entirely on his arguments supporting his constitutional claims, which fail as a matter of law,” therefore, “his state law claims . . . follow suit and fail as well.” As the court previously discussed, a reasonable jury could find Waterman’s search was unreasonable, and further, that he is not entitled to qualified immunity on that claim. Because of this conclusion, and because Waterman offers no additional arguments for the court to consider, the result is no different for this state law claims.

Defendant’s motion for summary judgment granted in part, denied in part.

Braxton v. Waterman, Case No. 6:25-cv-19, May 11, 2026. WDVA at Lynchburg (Moon). VLW 026-3-210. 16 pp.

Full-Text Opinion
VLW 026-3-210