See there was this traffic stop. Actually, there were two. First, Officer Duncan pulled over Joseph Newman for driving with a bad tail light. Duncan saw "a bottle of pills" on the console, but warned Newman and let him go. About 4:30 a.m., Duncan pulled Newman over again for the tail light. (You'd think he could have found a 2 a.m. repair shop.) This time, Newman had three passengers, but the pills were gone.
So Duncan stops the car, the front seat passenger jumps out and runs into a convenience store. (To escape? To use the john? To buy a Dr. Pepper?) Duncan searches Newman, finds drugs, and arrests him. Duncan then turned his attention to Lavetta Renee Williams, sitting in the back, passenger side. Williams was apparently minding her own business. She didn't try to run off, didn't make any furtive gestures, didn't mouth off. I mean, how suspicious can you get? But the real problem with Williams (who Duncan knew had drug complaints and a "violent temper," is that Newman, once he was arrested, told Duncan that Williams had a knife and was threatening to stab the others.
So Duncan gets the others out of the car. By now there are other cops around, one female, all there to assist. And there's this potential knife.
OK, here's the deal. A police officer who has reasonable suspicion (which is less than probable cause, which, you'll recall, is itself less than probably but means something like "not impossible") to believe a suspect is armed and dangerous can conduct a pat-down search of the suspects outer clothing to check for a weapon.
So there they all are, by the side of the road. And it's Duncan's job to pat down Lavetta. (Why, you may ask? Why not have the female officer do it? Because we wouldn't have a story then.) Anyway, according to yesterday's opinion by Justice Brown of the Fourteenth Court of Appeals (Houston)
Officer Duncan testified that he did not want to conduct a pat-down of Williams because she was a female. He stated that he asked Williams to "kind of reach underneath [her bra] and just pull it out a little bit and kind of shake it a little bit . . . and maneuver it." Because Williams was relatively well-endowed—"more than average"—Officer Duncan was concerned she may have concealed the steak knife in her bra. Williams "refused, cried, and said she did not want to pull out her bra." Officer Duncan again asked Williams to shake out her bra. After the second request, Williams complied and numerous pills fell out of her bra. Officer Duncan arrested Williams for possession of a controlled substance. After she was arrested, the female officer on the scene conducted a pat-down of Williams.And so it is that the local trial court said, NO. That search was too much. Suppress those drugs! And per Justice Brown, the court of appeals said that was right.
Officer Duncan‘s reluctance to perform a pat-down on a female provides insufficient justification for broadening the scope of the search, especially when a female officer was on the scene and immediately available to conduct the pat-down in his place. Having the female officer perform the pat-down would neither compromise officer safety nor expose Williams to an overly broad search. Besides, we are aware of no authority prohibiting a male officer from patting down a female suspect, nor has the State pointed to any such authority.The state offered bunches of justifications for not suppressing those drugs. But Brown (and Justice Boyce, who joined his opinion) bought none of them. They just couldn't get past this.
Additionally, although Officer Duncan had been told that Williams had a knife, he was not told, nor was there any other indication, that Williams had hidden the knife in her bra. Furthermore, there is nothing to show that a pat-down would have been dangerous or ineffective. Officer Duncan stated that he did not want to pat-down a female, but the State has not cited any authority to show that he was therefore justified in conducting a more intrusive search. And the "more than average" size of Williams‘s bust, as Officer Duncan described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search.
Justice Yates took a different view, blaming not Duncan but the prosecutor for failing to present the key evidence. "The written record," Yates wrote, is unclear or silent regarding several critical items."
- Why did Officer Duncan think a pat down would have been ineffective? Officer Duncan testified that he was concerned that Williams might have had something concealed in her bra that might not have readily been felt during a typical pat down. He stated that Williams’s bust size was "above average," but that does not explain why he thought she could have hidden a steak knife in her bra or that a pat down would not have revealed some indication of the knife, which could have justified additional searching. Although Officer Duncan may have been hesitant to pat down a woman’s bra area, he did not explain why a pat down would have been ineffective in this case had he done so, and the State has cited no authority to show that it is inherently unreasonable for a male officer to pat down a female suspect.
- Did Officer Duncan require Williams to reach under her dress to lift her bra, or did she lift her bra by grabbing it through her dress? The record merely states that she had to "reach underneath," but it is unclear if she was reaching underneath her dress also or just her bra, and the parties disagree in their briefs regarding the interpretation of the record on this point.
- How much, if any, were Williams’s breasts or other body parts exposed during the search? The record is completely silent on this point. Though the State asserts in its brief that the search occurred in a place not observable by the public, it is undisputed that it occurred in a convenience store parking lot, and Officer Duncan testified in the hearing that Williams was not later subjected to a full strip search because "we’re right there in view of the public."
Regardless, the drugs are suppressed. The Fourth Amendment lives after all. At least in Texas, in the Fourteenth Court of Appeals (Houston), yesterday.
And so, for a rare moment of expressed pride in the state where I went to law school:
Go Red Raiders!