By Ken Wallentine
Sims v. Labowitz, 2017 WL 6031847 (4th Cir. 2017)
Trey Sims, 17 years old, used his mobile phone to record himself fondling his erect penis. He sent the video recordings and photos to his 15-year-old girlfriend. Sims indubitably hoped the girlfriend would safeguard the images; however, the girlfriend’s mother had a peek—enter the police.
A detective seized both teens’ phones and obtained a search warrant requiring Sims to strip, allowing comparison photos of his erect penis. However, when Sims got naked in a room with three police officers and a camera, he could not rise to the moment. The detective told Sims to masturbate in order to become erect. Sims could not, so the detective photographed Sims’ flaccid penis. The following day, the detective obtained a second search warrant, intending to require Sims to try again, or to take Sims to a hospital for an injection that would produce an erection.
Before the second warrant could be executed, the prosecutor intervened. Sims sued the detective, claiming both an invasion of his sexual privacy and an unreasonable search, and alleging that the detective forced Sims to participate in producing child pornography by photographing his penis as Sims attempted to masturbate.
The trial court granted qualified immunity on the Fourth Amendment claim and dismissed Sims’ claim for damages associated with alleged manufacturing of child pornography. The court of appeals reversed the grant of qualified immunity, ruling that forcing a teenage boy to masturbate to comply with a warrant authorizing police to obtain photos of the teen’s erect penis counts as an unlawful search.
The court held that “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’ bodily integrity even though no part of Sims’ body was penetrated or physically harmed.” The court also stated that attempting to force Sims to achieve an erection with three officers watching intruded “upon an area in which our society recognizes a significantly heightened privacy interest.” The court held the search unreasonable because of the weak need for the evidence and “the outrageous scope of the sexually intrusive search and the intimidating manner in which the search was conducted.”
Whatever one might think of the detective’s investigative efforts, he did rely on a valid search warrant issued by a judge. The dissenting judge would have granted qualified immunity on that basis, quoting Judge Wilkinson, “If reasonable mistakes were actionable, difficult questions of discretion would always be resolved in favor of inaction, and effective law enforcement would be lost” (Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991)). However, the majority held the officer should have known the warrant was unreasonable on its face.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.