The Texas of Court of Criminal Appeals, notorious among Lone Star state legal observers for bending over backwards to uphold police practices, has ruled that police officers can peer between the unclothed buttocks of detainees as part of a search incident to arrest. On April 23, the court upheld a Harris County (Houston) trial court decision allowing rocks of crack cocaine found between the buttocks of Houston resident Danny Joe McGee to be used as evidence against him.
According to court records, Houston police received a tip that McGee was selling crack and hiding it between his buttocks. Police went to the scene, claimed they smelled marijuana and found a blunt nearby, detained McGee, took him to a fire station, forced him to pull down his pants and underwear and "bend and spread 'em," revealing several small baggies containing crack rocks, whereupon he was arrested for possession of crack cocaine.
The question for the court to consider was whether Houston police needed to obtain a warrant before strip-searching McGee or whether a visual body-cavity search can be considered part of a search incident to arrest. The judges ruled that such searches can be done incident to arrest, but only if they are "reasonable." The search of McGee was reasonable given the circumstances, the court held.
But given the facts of the case, that ruling was "strained," said University of Texas law professor George Dix. He told Texas Lawyer magazine that even if police had probable cause to arrest McGee, the crime in question was marijuana possession, not selling crack from one's butt. "It's two separate things -- selling cocaine from an inventory in your rear and smoking dope with your buddies," Dix said.
McGee's attorney, Kevin Howard, said there wasn't even probable cause to arrest McGee for anything. Howard said once someone told police McGee had crack in his butt, they found a pretext to determine whether the information was true.
Those arguments were good enough for Houston's 14th Court of Appeals to rule that the crack was unlawfully seized in a warrantless search unjustified by the Texas Rules of Criminal Procedure, but the Texas Court of Criminal Appeals disagreed. Or at least a 7-2 majority did. One member, Judge Tom Price, opined in a dissenting opinion that the 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.
"If officers can do this, no telling where this will stop," Howard told the Texas Lawyer. "It easily could have been a female who was told to spread her legs and got searched." That prospect troubled another Houston criminal lawyer, Brian Wice, who asked the Texas Lawyer whether such a search would be reasonable when the detainee is a woman. "The female body has more space available for lease when it comes to secreting contraband," he noted.