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May 09, 2003

"Pants down, bend over, and spread 'em!"

So much for the good old days of "Hands up where I can see 'em!" The Texas Court of Criminal Appeals ruled Wednesday that a trial court was right to allow into evidence crack cocaine that a Houston police officer found when he looked between the buttocks of a man who was not under arrest, without first obtaining a search warrant:

In McGee v. State, the Court of Criminal Appeals addressed for the first time whether a search incident to arrest includes a visual body-cavity search. The court, in a 7-2 decision, held that such a search could be reasonable, depending on the circumstances....

In other words you can be ordered to pull down your pants, bend over, and spread your buttocks, without being placed under arrest, and without any type of warrant, all based on an anonymous tip an officer claims he got. It's basically at the officer's discretion. And you thought police officers enjoyed harassing black motorists now? Well, if this ruling stands, you can expect to start seeing a lot more assholes on the side of the road when you drive through certain parts of Texas, and I don't just mean the five-oh.

The title of this article alone is worth clicking here to see it:

Rowan testified that he and his partner handcuffed the three men, placed them in a patrol car and drove them to a fire station, where McGee was required to drop his pants, bend over and spread his buttocks...

Howard says the officers didn't arrest McGee and the others at the site where they allegedly were smoking marijuana. At a March 30, 1998, hearing on McGee's motion to suppress the cocaine, Rowan testified before 232nd District Judge Mary Lou Keel that he detained the trio pending his investigation, conducted visual body-cavity searches on all three but did not arrest anyone until he found the cocaine, a transcript of the hearing shows. Rowan testified that only McGee was arrested, according to the transcript....

"If officers can do this, no telling where this will stop," Howard says. It easily could have been a female who was told to spread her legs and got searched, he says.

Houston solo Brian Wice, a criminal defense lawyer, says the court's opinion creates the unanswered question of whether such a search is reasonable when the detainee is a woman. "The female body has more space available for lease when it comes to secreting contraband," he says.

Judge Tom Price said in a concurring and dissenting opinion, in which Judge Lawrence Meyers joined, that the warrantless body-cavity search was unreasonable under the Fourth Amendment.

"There was no evidence from which a reasonable officer could conclude that the evidence located between [McGee's] buttocks would be destroyed during the time necessary to obtain a warrant," Price wrote.

Howard says he will file a motion for rehearing before the Court of Criminal Appeals. If he cannot obtain a satisfactory resolution in state courts, Howard says he will consider taking the case to the U.S. Supreme Court.

My bet, our wonderful politically appointed SCOTUS tells Howard to take his case and, well, you get the idea.

Posted by Mike at May 9, 2003 02:16 AM

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