Pubdate: Thu, 1 Nov 2007
Source: Providence Journal, The (RI)
Copyright: 2007 The Providence Journal Company
Author: Edward Fitzpatrick
Bookmark: (Policing - United States)
Bookmark: (Marijuana)
Bookmark: (Cocaine)


When do the police have a right to look between your buttocks to see 
if there are drugs hidden there?

A federal appeals court addressed that question this week in 
overturning a ruling that said a Woonsocket police officer lacked the 
reasonable suspicion required to check for drugs between Kenny 
Barnes' buttocks.

Barnes, 28, of Woonsocket, is charged with possessing crack cocaine 
with the intent to distribute. Barnes was strip searched after his 
arrest, and when the police told him he had to undergo a visual 
cavity search, he "reached behind his back and removed a bag 
containing cocaine base from between his buttocks," according to the 
decision. (Crack cocaine is a form of cocaine base.)

Federal public defenders argued that the 34.79 grams of crack cocaine 
had been seized in violation of Barnes' Fourth Amendment right to be 
free from unreasonable searches and seizures. And in June 2006, 
Senior U.S. District Judge Ernest C. Torres refused to allow 
prosecutors to use the crack cocaine as evidence.

"In short, it paints with too broad a brush to say that every person 
arrested on a drug charge automatically is subject not only to a 
strip search but also to a visual body cavity search," Torres wrote. 
"While evidence of drug trafficking may be sufficient to justify a 
strip search, some more individualized suspicion, ordinarily, is 
required to extend the search to bodily cavities."

Federal prosecutors appealed the suppression of that evidence, 
placing the case on hold. And in a decision issued Monday, the 
Boston-based 1st U.S. Circuit Court of Appeals overturned Torres' 
order, sending the case back to Providence.

The decision, written by Circuit Judge Juan R. Torruella, explained 
that Barnes was in the driver's seat of an illegally parked car in 
August 2005 when Woonsocket police Officer George McMann ran the 
license plate number through a database and discovered that Barnes' 
driver's license had been suspended.

After detecting a strong odor of marijuana in the car and spotting 
flakes of marijuana on the console, officers arrested Barnes and 
searched the trunk of the car, finding two bags of marijuana, a 
digital scale and $685 in cash, according to the decision.

At the police station, McMann and another officer strip searched 
Barnes, finding no drugs or weapons. McMann then told Barnes to turn 
around, bend over and spread his buttocks so the officers could see 
whether he was concealing anything there. When Barnes refused, McMann 
told him it was station policy to conduct a cavity search as part of 
the strip search, according to the decision.

At that point, Detective Daniel Turgeon arrived in the strip-search 
area. Turgeon "had received a tip from some sources that Barnes was 
reputed to deal in drugs and, specifically, known to 'cheek' drugs -- 
i.e., conceal drugs between his buttocks," the decision says.

Turgeon told McMann that Barnes "needed to be strip searched" and 
explained to Barnes that the cavity search "was protocol with the 
Police Department." After some discussion, Barnes pulled out the bag 
of crack cocaine.

The appeals court agreed that the strip search was justified, given 
that Barnes had been arrested on a drug trafficking charge. But, the 
court said, "A visual body cavity search involves a greater intrusion 
into personal privacy." And the court agreed that, on his own, McMann 
lacked reasonable suspicion that Barnes was "cheeking" drugs.

Still, Torruella wrote, "We have recognized that reasonable suspicion 
or even probable cause can be established by the 'collective 
knowledge' or 'pooled knowledge' principle." And that means 
"reasonable suspicion can be imputed to the officer conducting a 
search if he acts in accordance with the direction of another officer 
who has reasonable suspicion."

So when evaluating whether McMann acted properly, Torres should have 
taken into account what Turgeon knew, the appeals court said. 
Instead, "it appears that the original suppression hearing was 
erroneously focused by the court on the lack of express communication 
between the two officers."

Now, the question is whether Turgeon knew enough to justify a cavity 
search, the appeals court said. And so far, Turgeon's testimony has 
been "completely lacking in any factual detail regarding the informant's tip."

Turgeon has testified that he had "information from sources in 
Woonsocket as to Mr. Barnes," that they "have been reliable sources" 
and that he had "received information as to where on his person Mr. 
Barnes carried his drugs."

But the appeals court said Turgeon has provided no additional 
information about his sources or the context in which they provided 
information to the police. Without that kind of detail, the court 
said it can't tell "whether the information was sufficient or 
credible to establish reasonable suspicion."

"Although it is undisputed that reasonable suspicion is a less 
demanding standard than probable cause," Torruella wrote, "the law 
requires more than naked assertions of reliability to support 
reasonable suspicion."

So the appeals court is kicking the matter back to U.S. District 
Court in Providence "to determine the issue of Turgeon's reasonable 
suspicion," saying, "the court may, within its discretion, take 
additional evidence on the relevant factual issues."

Yesterday, U.S. Attorney's office spokesman Thomas M. Connell said 
Barnes remains in federal custody and federal prosecutors are 
awaiting guidance from Torres on how to proceed. Assistant Federal 
Public Defender Edward C. Roy said, "We are waiting for guidance from 
the District Court on whether it will have an additional hearing or 
decide the case based on the evidence as it stands. I'm gearing up in 
case there's an additional hearing."
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