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The Texas Court of Criminal Appeals got to the bottom of things on April 23, holding that a trial court didn’t err when it denied a motion to suppress crack cocaine that a Houston police officer found when he looked between the buttocks of a man 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. “The court didn’t establish a bright-line rule,” says Don Rogers, an assistant district attorney in the appellate division of the Harris County DA’s Office. The judges said that visual body-cavity searches can be done incident to a lawful arrest but that the reasonableness of such a search must be determined on a case-by-case basis, Rogers says. George Dix, a University of Texas School of Law professor who specializes in criminal law, says McGee requires a visual body-cavity search incident to arrest to pass muster under a “reasonableness” standard that involves weighing the intrusiveness of the search against the need for it. The majority’s application of this standard was “strained,” Dix says. Dix says the court’s application of the standard seems to rely in part on the court’s conclusion that the officers had probable cause for the arrest. But he says the arrest was upheld on the officer’s probable cause to believe Danny Joe McGee and two companions were in possession of marijuana. “It’s two separate things — selling cocaine from an inventory in your rear and smoking dope with your buddies,” Dix says. Houston solo Kevin B. Howard, McGee’s attorney, says the officers didn’t have probable cause to arrest McGee and his companions for anything. Someone told an officer that McGee had crack cocaine in his buttocks, and the officer found a way to determine whether that information was true, Howard alleges. The majority opinion, written by Judge Mike Keasler, said that in December 1997 a police officer received a tip from a “concerned citizen,” saying that McGee and two juveniles were selling crack cocaine at a particular intersection. The tipster gave officer Steven Rowan the names of McGee and one of his companions, provided a detailed description of the clothing worn by all three individuals and alleged that McGee was hiding crack cocaine between his buttocks, Keasler wrote. According to the opinion, Rowan and his partner went to the location and found three men who matched the description provided by the tipster. The opinion said Rowan testified that he smelled marijuana, saw blue smoke surrounding the trio and found a cigar containing marijuana on the ground near McGee. 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, the opinion said. Rowan testified that he saw several rocks of crack cocaine wrapped in red plastic lodged between McGee’s buttocks and that McGee tried to push the cocaine into his anus, the Court of Criminal Appeals noted in the opinion. Before trial, McGee moved to suppress the cocaine evidence, but the 232nd District Court denied his motion. McGee then pleaded guilty to possession of cocaine and was sentenced to 90 days in prison. McGee appealed and argued that the trial court erred in denying his motion to suppress the cocaine evidence. In a 2-1 decision, Houston’s 14th Court of Appeals held that the cocaine seized from McGee’s buttocks was the product of a warrantless arrest not justified by Articles 14.01, 14.03 or 14.04 of the Code of Criminal Procedure. In the June 2000 decision, the appeals court also held that the body-cavity search was unreasonable and the fruits of that search should have been suppressed. Paul C. Murphy, then-chief justice of the 14th Court, wrote the majority opinion in which Justice John A. Anderson joined. In a dissenting opinion, Justice J. Harvey Hudson said the police had probable cause to believe McGee was hiding cocaine between his buttocks and the most expedient method of confirming or refuting that belief was to conduct an immediate search. The state petitioned the Court of Criminal Appeals to review the case in August 2000. MEN AND WOMEN Reversing the 14th Court, the Court of Criminal Appeals held that the alleged marijuana smoke, the smell of marijuana and the marijuana cigar found on the ground were consistent with the offense of possession of marijuana. Those observations coupled with the officer’s prior knowledge — based on the citizen’s tip — that the men allegedly were selling crack cocaine provided probable cause under Article 14.01(b) for the officer to make an arrest without a warrant, the opinion said. 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. Dix says the officer made what amounted to a functional arrest for possession of marijuana by detaining the men and transporting them to the fire station. But Dix adds, “Keasler doesn’t make it crystal clear how important the arrest is to the upholding of the search. He sure doesn’t make it clear to me.” Keasler said in the opinion that the U.S. Supreme Court held in 1973′s United States v. Robinson that a search incident to arrest authorizes police to conduct “a full search of the person,” but the high court didn’t do away with the requirement that all searches be reasonable. A court must consider the scope of intrusion, the manner in which it was conducted, the justification for conducting it and the place where it was done, Keasler wrote. The Court of Criminal Appeals held that the officer had justification to believe the search was necessary, was qualified to perform the search and sought to protect McGee’s privacy while he was being searched. “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.

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