McGee v. State
McGee v. State
Opinion of the Court
OPINION
delivered the opinion of the Court,
Danny Joe McGee argues that the crack cocaine retrieved from between his buttocks during a visual body cavity inspection should have been suppressed because it was the product of a warrantless arrest and the fruit of an unconstitutional search. We disagree.
Statement of Facts
The evidence, viewed in the light most favorable to the trial court’s ruling,
Officer Rowan went to the location and found three men who matched the description. Upon approaching the men, the officer smelled marijuana and saw blue smoke surrounding the men. Officer Rowan testified that based on his training and experience, the blue smoke was from marijuana. He asked the men for identification and corroborated the two names provided by the citizen. The officer then checked the men for weapons and searched the area where they were standing. Although there were no weapons, a cigar containing marijuana was discovered on the ground. McGee admitted that at least one person was smoking marijuana when Officer Row
Officer Rowan handcuffed the three men, placed them in the squad car, and drove to a nearby fire station. At the fire station, Officer Rowan took McGee to a secluded area of the station and compelled McGee to drop his pants, bend over, and spread his buttocks. Officer Rowan proceeded to perform a visual search of McGee’s anal region. The officer testified that he saw several rocks of crack cocaine wrapped in red plastic in plain view lodged between McGee’s buttocks. He further testified that the crack cocaine was not inside McGee’s anus, but when the cocaine was exposed, McGee attempted to push it into his anus. Officer Rowan testified that he was able to retrieve the drugs before McGee pushed them into his anus without digitally probing the anus. McGee was then charged with possession of cocaine.
PROCEDURAL HISTORY
Before trial, McGee presented his motion to suppress evidence, which the trial court denied after a hearing. McGee then pled guilty to the charge of possession of cocaine weighing less than one gram and was sentenced to 90 days’ confinement. McGee subsequently filed a notice of appeal claiming that the trial court erred in denying his motion. Specifically, McGee argued that the evidence recovered was the fruit of (1) an unconstitutional arrest not justified by the Texas Code of Criminal Procedure and (2) an unconstitutional search. The court of appeals agreed with McGee, holding that the evidence seized was the product of a warrantless arrest not justified by Articles 14.01, 14.03, or 14.04 of the Texas Code of Criminal Procedure.
Analysis
I. Warrantless Arrest
The State argues that the Court of Appeals erred in concluding that none of the statutory requirements to justify a warrantless arrest were proven. When a defendant seeks to suppress evidence on the basis of an illegal arrest, the burden of proof is placed on the defendant to rebut the presumption of proper conduct.
The evidence presented during the suppression hearing established that McGee was arrested without a warrant. And neither party contests that there was a war-rantless arrest. So the burden shifted to the State to prove that the requirements of a warrantless arrest were satisfied. This is where the substance of the State’s petition lies.
A. Article 14.01(b)
A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
Probable cause exists where police have reasonably trustworthy information sufficient to warrant a reasonable person to believe that a particular person has committed or is committing an offense.
Here we have nearly identical facts. An informant approached Officer Rowan and relayed information about criminal activity he had witnessed. The informant provided Officer Rowan with a detailed description of McGee. He told the officer that McGee was wearing a “yellow rain slicker, black rain pants, and a black stocking cap,” and that McGee could be found on the corner of Fleming and Cool Wood. The informant also provided McGee’s name and the name of one of his two companions. The informant was concerned that McGee was selling crack cocaine in the area and that he was hiding the cocaine between his buttocks. Based on this tip, Officer Rowan proceeded to the corner of Fleming and Cool Wood and saw that a person standing there, McGee, matched the description provided by the informant because he was wearing a yellow rain coat, black rain pants, and a black cap. The officer then asked the men for identification and their names matched those provided by the informant. He observed marijuana smoke in the air above McGee and a marijuana cigarette on the ground next to him. He also smelled the odor of marijuana emanating from McGee. The cloud of marijuana smoke in the air, the smell of marijuana, and the marijuana cigarette were consistent with the offense of possession of marijuana. When coupled with the officer’s prior knowledge supplied by the informant, the observations were sufficient to provide Officer Rowan with probable cause to arrest under Article 14.01(b).
Therefore, Article 14.01(b) excused Officer Rowan from having to obtain an arrest warrant. Because we hold that the arrest was justified under 14.01(b), we need not consider the State’s first and third grounds for review concerning Articles 14.03 and 14.04.
A. Search Incident to Arrest
Pursuant to the Fourth Amendment, a warrantless search of either a person or property is considered per se unreasonable subject to a “few specifically defined and well established exceptions.”
There are several different forms of searches, each involving a different degree of intrusion. Courts classify some of the more intrusive searches as “strip searches,” “visual body-cavity searches,” and “manual body-cavity searches.”
In United States v. Robinson, the Supreme Court has held that a search incident to arrest authorizes the police to conduct “a full search of the person.”
In Bell v. Wolfish, the Supreme Court held that a reasonableness inquiry requires a court to balance the need for the particular search against the invasion of the personal rights that the search entailed.
1.Scope of the Intrusion
Visual body-cavity searches are among the most intrusive of searches.
2. Manner in which Search was Conducted
In reviewing a visual body-cavity search, we must decide whether, on the whole, the manner in which the search was conducted was reasonable.
We may also consider whether the officers conducting the search had training and/or experience in conducting such searches.
So we conclude that the manner in which the search was conducted was reasonable, which weighs in favor of the conclusion that the search was reasonable.
3. Justification for the Search
The Supreme Court has upheld the use of visual body cavity searches
4. Where the Search was Conducted
The Ninth Circuit has held that the search must be conducted in a hygienic environment where there is no risk of infection.
The Fourth Circuit provides additional guidance. It has held that an emphasis should be placed on whether the officer sought to protect the privacy interests of the individual by conducting the search in a private area.
Three of the four factors weigh in favor of the conclusion that this search was reasonable. The trial court was correct in denying McGee’s motion to suppress.
Conclusion
Because Article 14.01(b) of the Code of Criminal Procedure excused the arresting
COCHRAN, J., filed a concurring opinion, joined by JOHNSON and HOLCOMB, JJ.
. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000).
. McGee v. State, 23 S.W.3d 156, 161-66 (Tex.App.-Houston [14th Dist] 2000).
. Id. at 168.
. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986).
. Id.
. See generally Tex.Code Crim. Proc. Ann. chapt. 14 (Vernon 1981).
. Stull v. State, 772 S.W.2d 449, 451 (Tex.Crim.App. 1989).
. Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App. 1991).
. See Miller v. State, 458 S.W.2d 680 (Tex.Crim.App. 1970); Lunde v. State, 736 S.W.2d 665 (Tex.Crim.App. 1987).
. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).
. United States v. Edwards, 415 U.S. 800, 808-09, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974) (search incident to arrest); Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (voluntary consent); Vale v. Louisiana, 399 U.S. 30, 34 — 36, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) (exigent circumstances).
. McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948).
. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
. See, e.g. Blackburn v. Snow, 771 F.2d 556, 561 n. 3 (1st Cir. 1985); Deserly v. Department of Corrections, 298 Mont. 328, 995 P.2d 972, 976 n. 1 (2000); Hughes v. Commonwealth, 31 Va.App. 447, 524 S.E.2d 155, 159 (2000) (en banc).
. Blackburn, 771 F.2d at 561 n. 3.
. Id.
. Id.
. United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
. See Amaechi v. West, 237 F.3d 356, 361 (4th Cir. 2001).
. Id. (citing Illinois v. Lafayette, 462 U.S. 640, 645, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983)).
. 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
. Id.
. U.S. v. Lilly, 576 F.2d 1240, 1246 (5th Cir. 1978).
. See Wolfish, 441 U.S. at 558, 99 S.Ct. 1861; United States v. Lilly, 576 F.2d 1240 (5th Cir. 1978); Patterson v. State, 598 S.W.2d 265, 269 (Tex.Crim.App. 1980).
. Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 711 (9th Cir. 1989).
. McGee, 23 S.W.3d at 167 (citing Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997); Mary Beth G. v. Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983)).
. See Del Raine v. Williford, 32 F.3d 1024, 1040-41 (7th Cir. 1994).
. See Covino v. Patrissi, 967 F.2d 73, 80 (2d Cir. 1992).
. Del Raine, 32 F.3d at 1040-41.
. Wolfish, 441 U.S. at 559-60, 99 S.Ct. 1861.
. Compare Blackburn v. Snow, 771 F.2d 556, 564 (1st Cir. 1985) (holding that body cavity searches should not be conducted on anything less than probable cause), with Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966) (holding that more than a mere suspicion is necessary for warrantless body cavity searches).
. See United States v. Montoya de Hernandez, 473 U.S. 531. 537-40. 105 S.Ct. 3304. 87 L.Ed.2d 381 (1985) (dealing with border searches); Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (dealing with prison searches).
. Huguez v. United States, 406 F.2d 366, 382 (9th Cir. 1968).
. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981).
. Id.
Concurring Opinion
filed a concurring opinion in which JOHNSON and HOLCOMB, JJ., joined.
I join all but Part IIA3 of the majority opinion. If the majority concludes that merely because Officer Rowan had probable cause to believe that appellant “was engaged in illegal activity,” he therefore had authority to make a visual body cavity search, I respectfully disagree. I do not think that a visual body cavity search is permissible as part of a routine search incident to arrest. But I also think that the trial court did not abuse its discretion by implicitly concluding that Officer Rowan had at least “reasonable suspicion” to believe that appellant had cocaine hidden between his buttocks.
The human body is a private sanctuary which is generally entitled to significant protection under the Fourth Amendment.
. See Swain v. Spinney, 117 F.3d 1, 5 (1st Cir. 1997) (stating that police must have a "reasonable suspicion” that evidence will be found before conducting a visual body cavity search); Justice v. Peachtree City, 961 F.2d 188, 192 (11th Cir. 1992).
. Appellant, the State, and the court of appeals all used the term "a concerned citizen” to describe the person who called Officer Rowan.
. See Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (stating that the practice of strip and visual body cavity searches "instinctively gives us the most pause”); Mary Beth G. v. Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (quoting another court’s description of visual body cavity searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission”).
.People v. Scott, 21 Cal.3d 284, 293, 145 Cal.Rptr. 876, 578 P.2d 123 (1978); see also Commonwealth v. Thomas, 429 Mass. 403, 708 N.E.2d 669 (1999) (upholding warrant-less visual body cavity search at police station because officer had, at the time he made search, probable cause to believe that defendant had cocaine hidden between his buttocks).
Concurring in Part
filed this concurring and dissenting opinion, in which MEYERS, J., joined.
In this case, we are called upon to decide whether the arrest and subsequent body-cavity search of the appellant were
Neither the United States Supreme Court, nor this Court, has determined whether a search incident to arrest may include a visual body-cavity search, today we address the question. Cases from federal courts and other states provide persuasive authority.
The United States Supreme Court has held that a search incident to a lawful arrest authorizes the police to conduct “a full search of the person.” United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Police may also search the area within the arrestee’s immediate control, see Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and seize his or her personal effects that are evidence of the crime. See United States v. Edwards, 415 U.S. 800, 804-05, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).
A police officer’s decision to conduct a search incident to arrest is largely free from judicial scrutiny before and after the arrest. The Supreme Court explained in Robinson that a police officers decision about how and where to search a person is “a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.” Robinson, 414 U.S. at 235, 94 S.Ct. 467. The officer’s authority to search incident to arrest is justified by the need to protect the officer’s safety and to prevent the concealment or destruction of evidence. Ibid. The scope of the search must not exceed the justification for the search, however; this exception to the warrant requirement does not give officers unlimited authority to search an arrestee. See Edwards, 415 U.S. at 808 n.9, 94 S.Ct. 1234.
The authority of the police under the Fourth Amendment to conduct a full search of an arrestee’s person without a warrant is only skin deep. The policy considerations that justify the search incident to arrest — the need to disarm the suspect and to prevent the destruction of evidence under the suspect’s direct control — do not apply to searches involving intrusions beyond the body’s surface. Schmerber v. California, 384 U.S. 757, 769, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.
Id. at 769-70, 86 S.Ct. 1826. The Supreme Court reaffirmed this principle when, in Illinois v. Lafayette, 462 U.S. 640, 646 n. 2, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), it explained that it was not addressing strip searches as incident to arrest in Edwards.
In many jurisdictions, the search of a body-cavity is considered an intrusion into the body under Sehmerber that falls outside the permissible scope of a search incident to arrest.
The State argues that, because the appellant was under lawful arrest, Rowan was authorized to search the appellant to find contraband or weapons under United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The State cites Salinas v. Breier, 695 F.2d 1073, 1085 (7th Cir. 1982), in support of its argument that, when a person is in custody following a lawful arrest and there is probable cause to believe illegal drugs are hidden on or within the person’s body, limited measures may be taken to recover the substance. Because Rowan had probable cause to believe the appellant possessed illegal drugs between his buttocks, the State argues, he was authorized to take the appellant to the fire station and retrieve the drugs.
In Salinas, the Seventh Circuit relied on Robinson, Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and Edwards, which all permit a full search of one lawfully arrested. But the language in these cases should not be read to encompass body-cavity searches. The searches in these cases involved the removal of items from the clothing of the arrestees. Edwards, 415 U.S. at 802, 94 S.Ct. 1234; Robinson, 414 U.S. at 222-24, 94 S.Ct. 467; Gustafson, 414 U.S. at 262, 94 S.Ct. 488. The searches in these cases, although extensive, were not as complete as' a body-cavity search and did not have any “extreme or patently abusive characteristics.” Robinson, 414 U.S. at 236, 94 S.Ct. 467.
Body-cavity searches have been described as “dehumanizing, demeaning, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (internal quotation marks omitted). These searches are highly invasive and cannot be characterized as routine. See Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997). Even in the context of border searches, where officials need no suspicion to conduct most other searches, courts have characterized strip and body-cavity searches as non-routine searches that require various levels of suspicion to be justified. United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994); see also United States v. Montoya de Hernan
The dissenting Justice on the Court of Appeals in this case also relies on Salinas. McGee, 23 S.W.3d at 171 (Hudson, J., dissenting). The dissent found it significant that (1) Rowan had probable cause to believe the appellant was hiding drugs between his buttocks, (2) the expedient way to confirm that fact was to conduct an immediate search, and (3) Rowan tried to protect the appellant’s privacy by conducting the search at a fire station. Ibid. The dissent explained that it did not think that the search would be any less humiliating if conducted at the jail.
It may be true that the search would not have been any less humiliating if performed at another location. But that is not the appropriate inquiry. What we must decide is whether a routine search incident to arrest permits an officer to perform a body-cavity search. Given the extraordinary and intrusive characteristics of body-cavity searches, I agree with those courts that have found that the Robinson line of cases and the search incident to arrest exception do not authorize body-cavity searches. See, e.g., Swain, 117 F.3d at 6 (and cases cited therein); Commonwealth v. Gilmore, 27 Va.App. 320, 498 S.E.2d 464, 469 n. 3 (1998) (and cases cited therein).
When a search exceeds the scope of the search incident to arrest, the warrant requirement is reinstated. Coolidge v. New Hampshire, 403 U.S. 443, 484, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Another exception to the warrant requirement must apply to justify a warrantless body-cavity search. We think that the exigent circumstances exception, in the appropriate case, could justify a body-cavity search after an arrest. Cf. Montoya de Hernandez, 473 U.S. at 541 n. 4, 105 S.Ct. 3304 (justifying strip searches at the border based on reasonable suspicion that suspect has drugs secreted on her person).
In Schmerber v. California, the Supreme Court permitted a warrantless search involving a bodily intrusion on the basis of exigent circumstances. Schmerber, 384 U.S. at 770-72, 86 S.Ct. 1826. The case involved the removal of blood from the defendant who had been involved in a collision and arrested for driving while intoxicated. The Court found the search to be permissible because there was a clear indication that the evidence would be found, the officer reasonably could have believed that the evidence would have been destroyed had he sought a warrant, and the search was conducted in a reasonable manner. Ibid.
To decide whether an intrusion is reasonable under the Fourth Amendment, we weigh the particular need for the search against the invasion of personal rights. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). A reviewing court looks at the scope of the intrusion, the manner in which it was conducted, the justification for initiating the search, and the place where the search was conducted. Ibid.
Based on these principles, I would hold that a warrantless body-cavity search, even though conducted incident to a lawful arrest, violates the Fourth Amendment unless (1) the police have a clear indication that evidence is located within a suspect’s body, (2) the police reasonably believe that the evidence would be destroyed during the delay necessary to obtain a warrant,
In the case before us, Officer Rowan received a tip from a concerned citizen that the appellant and two other men were selling crack cocaine. The citizen gave Rowan the names of the appellant and one other man and a detailed description of the clothing of all three. The citizen also told Rowan that the man later identified as the appellant was hiding the crack cocaine between his buttocks. Rowan was able to confirm much of the information he received in the tip. The three men matched the physical description given by the citizen. The two names provided matched the name of the appellant and one of the suspects. Evidence of drug usage and possession was found in the area. The evidence supports finding a clear indication that drugs would be found where the citizen said the drugs would be. See Schmerber, 384 U.S. at 770-72, 86 S.Ct. 1826.
Rowan testified that, after he handcuffed the suspects, he was concerned about transporting the three men in the car together. If one suspect possessed illegal drugs and dropped those drugs in the car, it would be difficult to determine which of the three had possessed the drugs. Even Rowan testified that this was not an emergency situation. And it is standard procedure to call for back-up to transport each suspect separately, as it is standard police procedure to check the patrol car before and after a suspect has ridden in the car. Rowan did not call for back-up officers; he transported the appellant to a fire station and performed a highly intrusive search without a warrant. This record does not support a finding that there was a risk of the destruction of evidence. There was no evidence from which a reasonable officer could conclude that the drugs located between the appellant’s buttocks would be destroyed during the time necessary to obtain a warrant. See Schmerber, 384 U.S. at 770-72, 86 S.Ct. 1826.
Because no warrant was obtained, and because no exception to the warrant requirement is supported by the record, the visual body-cavity search of the appellant at the fire station was unreasonable under the Fourth Amendment. As the Court of Appeals held, the fruits of the illegal search should have been suppressed. Because I would affirm the judgment of the Court of Appeals, I dissent.
. See United States v. Oyekan, 786 F.2d 832, 839 n. 13 (8th Cir. 1986) (stating that "a body
Several state courts have similarly concluded that the broad authority of the police to search an arrestee’s person incident to arrest is limited by the principles applicable to bodily intrusions set forth in Schmerber. See Commonwealth v. Gilmore, 27 Va.App. 320, 498 S.E.2d 464, 469 (1998); State v. Milligan, 304 Or. 659, 748 P.2d 130, 135 (1988); People v. Williams, 157 Ill.App.3d 496, 109 Ill.Dec. 577, 510 N.E.2d 445, 447-48 (1987); State v. Baker, 502 A.2d 489, 492 (Me. 1985); State v. Clark, 65 Haw. 488, 654 P.2d 355, 361-62 (Haw. 1982); State v. Fontenot, 383 So.2d 365, 367 (La. 1980).
. We have concluded that this is an objective, not subjective, standard in the context of an exigent circumstances review. Colburn v.
Reference
- Full Case Name
- Danny Joe McGEE, Appellant, v. the STATE of Texas
- Cited By
- 462 cases
- Status
- Published