Sure, Maybe in Texas

From Liberty and Justice for Y'all comes this story of what happens when a cop's just too darned sensitive of the feelings of others.
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!

THE SUPREMES SPEAK

I wrote on Tuesday about the two cases of interest to the criminal bar yet to be decided this term. The court issued its rulings this morning.

A big win in Melendez-Diaz v. Massachusetts. The Court held that lab reports are testimonial and, therefore, the Sixth Amendment does not permit them to be used as evidence against a defendant without live testimony and the opportunity to cross-examine the purported expert. The court's opinion was written by Scalia (and joined by Stevens, Souter, Thomas, and Ginsburg). Thomas also wrote a concurring opinion. Kennedy dissented in an opinion joined by Roberts, Breyer, and Alito. Here's the substance, culled from the syllabus (which isn't, officially, part of the opinion).

The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment’s text or in this Court’s case law. The affiants’ testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements’ testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for SixthAmendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should notbe subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, 448 U. S. 56, 66, which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner’s power to subpoena the analysts is no substitute for the right of confrontation.Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized.

The other case is Safford United School District # 1 v. Redding, the student strip-search case. And the result is more complicated.

The simple part is Thomas's opinion concurring in part but dissenting in the key stuff. The school, he said, had a perfect right to strip search Savana Redding, at least as far as the Constitution is concerned. End of story.

Stevens and Ginsburg disagreed: No, they didn't. Any fool can see that the searches violated the Fourth Amendment. Our earlier decisions made that evident. Even the idiots at the school should have been able to see that. Hold those people responsible.

The rest of the court fully joined an opinion by Souter which says, in essence, "No they couldn't do that. But we've never made that clear before, so you can't hold it against the people who did it." Something like, "Harm, but no foul." Welcome to the world of qualified immunity.

*********

There'll be more opinions, including some closely watched ones, the last of the term, on Monday. But the criminal and criminal-related cases are done for now.

And Also at the Supreme Court

Seven cases remain for decision at SCOTUS this term. Two are of particular interest to us criminal defense types.

Melendez-Diaz v. Massachusetts is another in a line of cases about determining when the rule the Court set down in Crawford v. Washington applies. Crawford, you'll recall, says that the government cannot use hearsay that's "testimonial" against a defendant in a criminal trial. The Sixth Amendment will not abide it. Now, the Court is to decide whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence.

In layman's terms, the question is whether lab reports get admitted because, heck, of course they're always accurate so there's no need to cross-examine the folks who did the tests and wrote the reports? Crawford and cases following it make clear that the reliability of a statement isn't the issue - it's the right to confront and cross-examine that matters. That right is tied to the fundamental idea that ours is an adversary system. It's not about the search for "truth" whatever that might be (though one hopes that it frequently comes within reach of that). Rather, it's about proof and evidence and the testing of that evidence.

That's why the defense in a criminal case has different duties than the prosecution. As Justice White explained in a separate opinion in United States v. Wade,

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Of course, given what we now know about the use of forensics in the courtroom (see, for instance, this report from the National Research Council and here and here), you can't trust those lab tests or reports anyway. So even if the issue were reliability the reports shouldn't come in by themselves.

The other case is Safford United School District #1 v. Redding asking

Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.

You'll remember that this is the case in which the male Justices of the Supreme Court, at oral argument, were simply unable to grasp why a thirteen-year old girl would be the least disturbed by being stripped to her bra and panties and forced to loosen and shake the bra and to lift the panties away from her body to ensure that she had no hidden ibuprofen.
Justice Breyer noted that

all they did was ask her to strip to her underwear, period. Nobody saw anything else.

The snickering must have been evident to all when, for instance, Justice Souter tried to establish what seems a self-evident fact by asking:

But you are -- you are saying basically there is -- there is no general understanding that people carry ibuprofen in -- in their undergarments.

Counsel for the school board, though not particularly happy about it, wouldn't rule out body cavity searches.

I see your concern. That's to be left up to the local governments, Your Honor.

And, of course, this is the case in which Justice Breyer amazed his colleagues:

So what am I supposed to do? In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear --

It appears that only Justice Ginsburg, of course the only one who had ever been a teen-age girl, understood the acute embarrassment at issue. And while there are hints of her frustration in the argument, it became evident when she spoke with Joan Biskupic of USA Today. As Biskupic reported:

Her status as the court's lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl's lasting humiliation, but Ginsburg stood out in her concern for the teenager.

"They have never been a 13-year-old girl," she told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood.

And you know, it's not just ibuprofen and not just this one case. It sometimes seems as if strip searches are almost routine in the public schools.

I represented some 11th grade nursing students were strip searched after one student thought she might have left a gift card in her car and another wondered about some cash that may have been misplaced. (The case is ongoing.) I also represented a group of 5th graders who were strip searched after one of them was seen smoking a cigarette across the street from school and before the school day. My experience is hardly unique.

What happens to April Redding matters. A lot.

More decisions Thursday.