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When to Sue for a 'Highly Intrusive Search'

By Christopher Coble, Esq. on July 25, 2018 | Last updated on March 21, 2019

The Fourth Amendment applies a pretty fuzzy standard to constitutional police conduct, protecting people from "unreasonable searches and seizures." Over the last 200 or so years, courts have attempted to distinguish between reasonable and unreasonable searches, trying to provide rules that balance police and public safety with a person's privacy interests. And one of those battleground areas in recent years has been so-called stop-and-frisk policies and public pat-downs.

Police are allowed to stop people if they have a reasonable suspicion that a crime has been, is being, or is about to be committed, and can conduct a reasonable search for weapons or contraband. But there are some instances that go too far. And accusations that an officer "reached immediately between [a person's] legs, grabbed his scrotum, felt around with his hand, and stuck his thumb in [the person's] anus" would certainly qualify as one of those times.

Illegal Hokey-Pokey

M.B. Cottingham and some friends were enjoying some late afternoon sun in folding chairs on a public sidewalk last September when a couple cop cars rolled up and asked the men if they had any guns. They all responded they did not. One of the officers, Sean Lojacono, also asked Cottingham what he had in his sock, and Cottingham pulled out a small baggie containing a legal amount of marijuana. Sensing he was about to be searched, Cottingham asked Officer Lojacono: "Do you need me to do the hokey-pokey?"

Cottingham prepared for a standard pat-down, but, according to a lawsuit he filed later, that's not exactly what happened. "Ranging far beyond what should have been a limited pat-down for weapons," the suit claims, "Officer Lojacono jammed his fingers between Mr. Cottingham's buttocks and grabbed his genitals. Mr. Cottingham physically flinched and verbally protested, making clear that this highly intrusive search was not within the scope of the frisk to which he had consented."

The Scope of the Intrusion

Video of the incident is pretty alarming. As the lawsuit describes:

After approximately three seconds of Officer Lojacono's search, Mr. Cottingham
protested, exclaiming to his friends, "He grabbin' my sh**!"
With Officer Lojacono's finger in his anus, Mr. Cottingham then flinched and turned part
of the way back around toward Officer Lojacono, protesting, "Come on, man! Come on,
man! Hold! You stuck a finger in my a**!"
Even though Officer Lojacono had already stuck his fingers between Mr. Cottingham's
legs and buttocks and probed for several seconds, Officer Lojacono resumed searching in
the same area in the manner as before, this time for six seconds and with Mr. Cottingham
in handcuffs.
Although Mr. Cottingham was able to remain still for a few seconds, the repeated
intrusion in his anus caused Mr. Cottingham to flinch again, and he cried out: "Come on
man! Stop fingerin' me, though, bruh!"
Officer Lojacono instructed him: "Stop moving!"
Mr. Cottingham responded: "You fingerin' my a**, man!"

Cottingham's lawsuit claims the search, "without a warrant, probable cause, reasonable suspicion, or consent to the scope of this intrusion," violated his Fourth Amendment rights, and is seeking compensatory and punitive damages from Officer Lojacono. While suing a cop for an illegal search may not be easy, Mr. Cottingham might have a pretty good case in this instance.

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