Friday, May 7, 2010

Search of Woman's Bra Exceeds Scope of 4th Amendment

Yesterday, the 14th District Court of Appeals (Houston) designated for publication an interesting 4th Amendment case regarding the scope of a pat-down search for weapons during a Terry stop. 

In State v. Williams, an Angleton police officer executed a traffic stop of the car in which the defendant was a passenger.  During the officer's valid investigative detention, the driver of the vehicle told the officer that the defendant was in possession of a knife and that she was trying to stab the other passengers.

Texas courts have stated that "a valid investigative detention can give a police officer the ability to pat-down or frisk the suspect for weapons."  Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009).  Courts, however, have not allowed an overly broad or unlimited pat-down in these instances, and have instructed that "officer may conduct a limited search for weapons of the suspect's outer clothing" when an officer "reasonably believes that the suspect is armed and dangerous."  Balentine v. State. 71 S.W.3d 763 (Tex. Crim. App. 2002).

In this case, however, the officer did not feel comfortable patting down the suspect, due to her busty build.  As the officer testified during trial, the defendant was well-endowed - "more than average."  Therefore, rather than conducting a limited pat-down search of the defendant, the officer simply asked her to
"kind of reach underneath [her bra] and just pull it out a little bit and kind of shake it a little bit...and manuever it."
Although she did not initially agree to this, she ultimately complied and as she wiggled and jiggled, numerous pills fell out her bra.  At her subsequent trial, she moved to suppress the illegal drugs as being fruits of an unlawful search.  The trial court granted the motion.  The14th District Court of Appeals affirmed the trial court's ruling suppressing the evidence, stating:
The permissible scope of a protective search for weapons is extremely narrow.  [The officer's] reluctance to perform a pat-down search on a female provides insufficient justification for broadening the scope of the search.  We are aware of no authority prohibiting a male officer from patting down a female suspect, nor has the State pointed to any.  If a pat-down had been conducted, and if a weapon or other contraband had been detected as a result, then either [the officer] or the female officer could have attempted to extract the item or could have conducted a more intrusive search.  And the 'more than average' size of [the defendant's] bust, as [the officer] described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search.
Justice Yates concurs (HERE).