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Maryland High Court Judge Urges Vulgar Clothing Exception to the Fourth Amendment:

Paulino v. State, decided Monday by Maryland's highest court, asked whether a particular search incident to arrest was reasonable. The police officers who arrested Paulino didn't just normally search him (just fine, even without a probable cause or a warrant, and even if done in public). They also, in a relatively public place, "lifted up Paulino's shorts" and "spread[] apart the cheeks of [his] buttocks" -- which revealed some drugs that Paulino had hidden between the cheeks (which is where an informant had told them Paulino often hid drugs).

The court held that under the circumstances in this case the search incident to arrest exception didn't justify such an intrusive search (which was not as intrusive as a manual body cavity search, but was more intrusive than most searches). That's an interesting and technical question that I won't get into here.

What struck me about the case, though, was Judge Cathell's short dissent:

I join Judge Battaglia's dissent and would further hold that when a person wears their pants below the level of their buttocks [as the defendant was -EV], he or she is intentionally offering that area for observation by the public and obviously has no expectation of privacy sufficient to prohibit a police officer from also looking.

If a person wants to have an expectation of privacy in that area of his or her body, he or she should keep their pants up when in public.

I don't see how this can make sense. Paulino wasn't wearing his underwear pulled down so that the drugs were visible; the underwear had to be pulled down for the police to find the drugs. The drugs were still hidden by the clothing; it was just one layer of clothing, customarily used as an undergarment, not two.

Imagine that Paulino wasn't wearing pants at all, either because he was at the beach or at a pool, or because he was just wearing only boxer shorts -- jarring and socially unacceptable in public, but surely no crime. I take it no-one would think that he had "no expectation of privacy" in what was under his swim trunks or boxers. No-one would say that since people at the beach, for instance, aren't wearing pants, there's no expectation of privacy (and therefore for constitutional purposes no Fourth-Amendment-triggering search at all, whether incident to arrest or otherwise) restraining the police from just looking under the trunks, or under the bottom or top of a bikini. Why then does wearing a pair of pants that doesn't entirely cover the shorts leave the police free to look under the shorts?

Am I missing something here? Thanks to Lowell Rudorfer for the pointer.

Hoya:
What the deal with hyphenating 'no one'?
6.7.2007 7:30pm
cfoster (mail):
A reasonable expectation of privacy isn't even an issue in a search incident to arrest - the issue is whether the search is extreme or patently abusive. Under Judge Cathell's argument, couldn't the cops pull down the skivvies and spread the cheeks of anyone wearing his pants at half mast in public?
6.7.2007 7:50pm
cfoster (mail):
...whether or not they were under arrest?
6.7.2007 7:50pm
cfoster (mail):
I guess you already said that. Never mind.
6.7.2007 7:54pm
jimbino (mail):
Yet more justification for the 9mm solution. I don't know how you state-approved lawyers can continue to associate yourselves with this judicial abuse. I hope there will be a bin-laden reckoning before the Second Coming to straighten y'all out.
6.7.2007 7:59pm
rc:
Maybe he still expected privacy, but sagging your pants down to your thighs is a surrender of your contitutional right to be taken seriously. Or something.

Any legal interpretation that encourages those fashion dork-bags to pull up their pants is A-ok with me.
6.7.2007 8:00pm
rc:
jimbino, wishing terrorist events and Armageddon upon the nation is just a bit much in defense of innane fashion criminals like the defendant, don't you think?

And if that's not enough to completely demolish your post, I'd also point out that Hitler owned a 9mm, and wan't afraid to use it. You don't want to be like Hitler, do you?

/Godwin.
6.7.2007 8:05pm
Christopher Cooke (mail):
EV: I believe the dissent is making a "bad taste" exception to the 4th Amendment's requirement of reasonable searches and seizures.
6.7.2007 8:07pm
Carmichael:
You're missing a sense of humor.
6.7.2007 8:10pm
cfoster (mail):
Given the easy access (by defendant and cops alike) to the, um, hiding place afforded by that particular fashion statement, is a quick peek really all that extreme or abusive? A full drop 'em and spread obviously would be, but a tug at the waistband and a quick peek down the crack?
6.7.2007 8:11pm
Nels Nelson (mail):

...when a person wears their pants below the level of their buttocks, he or she is intentionally offering...


Pick a method and stick to it.
6.7.2007 8:17pm
whit:
what does this say about lindsey lohan and britney spears expectation of privacy in their... uh... um... nether regions?

after all, they routinely display this area to the public, and apparently allow pretty much any member of the public free access...
6.7.2007 8:20pm
Crunchy Frog:
They haven't offered it to me.




Dammit.
6.7.2007 8:29pm
Guest101:

They also, in a relatively public place, "lifted up Paulino's shorts" and "spread[] apart the cheeks of [his] buttocks" -- which revealed some drugs that Paulino had hidden between the cheeks (which is where an informant had told them Paulino often hid drugs).


Reason no. 8,241 why I'm glad I'm not a cop.
6.7.2007 8:30pm
Eugene Volokh (www):
cfoster: You ask, "Given the easy access (by defendant and cops alike) to the, um, hiding place afforded by that particular fashion statement, is a quick peek really all that extreme or abusive? A full drop 'em and spread obviously would be, but a tug at the waistband and a quick peek down the crack?"

I take it you'd take the same view about "we'll peek under your swimsuit" searches on a beach, for women as well as men, yes? (Assume the swimsuit covers enough to make it possible to hide something underneath in a way that won't be immediately visible outside.)
6.7.2007 8:32pm
The Original TS (mail):
I have to agree with Carmichael. Whether the dissent had its tongue in its cheek or not, it was damn funny and is destined to be one of those classic cases that everyone runs across while in law school.
6.7.2007 8:33pm
r78:
Reason no. 8,242 why I'm glad I'm not a poor person with a dark complexion.
6.7.2007 8:33pm
Nikki:
Reason no. 7.642 why I'm glad I never used drugs ... if that's where drug dealers keep their merchandise.
6.7.2007 8:37pm
cfoster (mail):

I take it you'd take the same view about "we'll peek under your swimsuit" searches on a beach, for women as well as men, yes?


I would say so, under the right facts. During the Alito confirmation, wasn't he questioned about agreeing with a court that allowed a search of a baby's diaper?
6.7.2007 8:41pm
Guest 3L (mail):
This dissent is sheer insanity. The judge is so far removed from reality that he can't make a distinction based on what is in plain view and what can only be viewed upon physical inspection. By his twisted logic, every girl who wears low-rise jeans is subjecting the insides of her buttcheeks to police inspection.
6.7.2007 8:48pm
wooga:
My understanding is that people have a lower expectation of their behind than, say, genitals. For example, you can often see naked behinds on TV, and thongs are generally not illegal to wear outside.

I see a directly link between wearing your pants below your butt and permissibility of police mandated mooning. I like Judge Cathell's dissent.
6.7.2007 8:49pm
Steve:
I take it you'd take the same view about "we'll peek under your swimsuit" searches on a beach, for women as well as men, yes?

Look, cops have a dangerous job and don't get paid enough. They deserve a few perks.
6.7.2007 8:51pm
UW1L:
Fruit-of-the-loom of the poisonous tree, eh?
6.7.2007 8:53pm
Henry (mail):
Is it possible that what you're missing is the race of the defendant? (I don't know what it was, but the possibility occurs to me.)
6.7.2007 9:08pm
waitingforgodot (mail) (www):
Perhaps Judge Cathell merely has it in for plumbers?
6.7.2007 9:28pm
Jay:
Keep in mind that the Maryland Court of Appeals still wears bright scarlet robes with stiff collars (and possibly some ermine trim, I don't remember). Not sure anyone should be taking fashion advice from them.
6.7.2007 10:30pm
Ming the Merciless Siamese Cat (mail):
Sorry, but if one doesn't have a reasonable expectation of privacy in the crack of their arse, where do they have one?
6.7.2007 11:13pm
Henri LeCompte (mail):
Doesn't the informant's "clue" about where to look for the drugs give them probable cause? I mean the whole reason they even were stopping Paulino was based on informer information, no?

There is no evidence that the cops in question were routinely strip searching people. They only went "there" because there was specific information that that was were the drugs were hidden. If the cops get information that a specific vehicle has drugs stashed in a hollow side-board in the car, wouldn't it be reasonable to, you know, look there once they stop the car?
6.7.2007 11:21pm
cfoster (mail):
There is no reasonable expectation of privacy issue in a search incident to arrest, and probable cause is meaningful only as to the arrest, not the search. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. Chimel v. California, 395 US 752, 762-3(1969). However, under United States v. Robinson 414 US 218, 236(1973), the search must not be extreme or patently abusive. THAT is the measure.
6.7.2007 11:43pm
George Weiss (mail):
cfoster (mail):
There is no reasonable expectation of privacy issue in a search incident to arrest, and probable cause is meaningful only as to the arrest, not the search. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. Chimel v. California, 395 US 752, 762-3(1969). However, under United States v. Robinson 414 US 218, 236(1973), the search must not be extreme or patently abusive. THAT is the measure.

the majority argues that privacy is the issue in terms of the mannor of the search...dont confuse that with the "no reasonable expectation of privacy" justification for the initiation of any search

justice cathell is using the loaded phrase imporperly..but that is what she really means
6.8.2007 9:47am
alkali (mail) (www):
Less than obligatory hip-hop reference:

"I see she wearing them jeans that show her butt crack/My girls can't wear that/Why? That's where my stash at"

(Lil' Wayne, Fireman)
6.8.2007 10:23am
Gary McGath (www):
The dissent somehow reminds me of the old doctrine that a woman who wears revealing clothes is inviting sexual advances, and thus can't accuse her assailant of rape.
6.8.2007 10:44am
M. Gross (mail):
Leafing through the court decision, I found the most pressing question about this case seemed unaddressed:

Was the contraband substance found crack?
6.8.2007 11:38am
wooga:
Wow, M. Gross. That's a painful pun.
6.8.2007 7:09pm
cfoster (mail):
George Weiss: the majority argues that privacy is the issue in terms of the manner of the search...

I agree. The majority is using privacy as a measure of whether the search was extreme or patently abusive - because they spread his cheeks in public.
6.8.2007 11:05pm