Highest Md. court to hear police body-search case

February 01, 2007|By Andrea F. Siegel | Andrea F. Siegel,sun reporter

Baltimore County police who arrested a suspected drug dealer at a car wash one night had been tipped off on where he had been hiding crack cocaine: between the cheeks of his buttocks.

Police searched. And there it was.

But the circumstances of that Sept. 29, 2000, search, done in a secluded area with other officers and the suspect's friend present, have come into question. For the first time, Maryland's highest court is being asked to rule when the search of a private body area need not be so private - and whether this search was private enough.

Arguments before the Court of Appeals are scheduled for today.

The outcome of the case might set guidelines for acceptable circumstances of police searches that go inside a suspect's underwear.

"I've never heard of a case like that," said Andrew D. Levy, a lawyer in private practice who also teaches criminal law at the University of Maryland. "It's a great question" that homes in on how much privacy is expected and what justifies an intrusion.

Judges also look at whether a search is immediately needed, said Byron L. Warnken, who teaches at the University of Baltimore School of Law. Among other factors are the scope of an intrusion, and how and where the search is done.

"There is a reasonableness limitation - even if the search is otherwise good," he said, adding that such cases often are close calls.

Lawyers for John August Paulino maintain that the "demeaning search" - whether considered a strip search because police lifted up his shorts, or a more invasive search because a glove-clad officer manipulated his rear end, or a less invasive one because Paulino remained mostly clothed - violated his Fourth Amendment right to be free of "unreasonable searches."

In its brief, the public defender's office calls it a "highly intrusive search in the parking lot of a car wash while non-searching officers and civilians were present." The search, his lawyers say, was far too public. Police were not justified, they say, in searching him at the scene when they could have taken him to a station or "they could have placed Mr. Paulino in the relative privacy of a police vehicle."

Prosecutors say the search was reasonable under the circumstances. In July, the Court of Special Appeals, the state's intermediate appellate court, agreed: "Absent a showing that the suspect's privacy was violated more than was necessary by the search, we cannot say that even this questionable choice of location outweighs other [court-considered] factors."

It was done, according to the brief by the attorney general's office, at night in "the deserted premises of a `secluded' car wash." In addition, there is no indication that his naked body could be seen by "anyone other than the searching officers, much less others at the scene or the general public." His pants, already sagging, were kept in place.

"When Paulino refused to release the tension on his buttocks cheeks, an officer overcame his resistance, but this was a necessary tactic to secure the contraband," the brief states. Also, it is better for drugs believed hidden to be removed immediately and for police not to risk the possibility of the evidence getting lost before the search, prosecutors argued.

Hiding contraband where Paulino did has long been common with dealers who figure police have no interest in looking there, police say.

As a result of his search, Paulino, now 28, was convicted in 2001 of possession of drugs with intent to sell. Because he was a repeat offender, he was sentenced to 10 years in prison. If the court invalidates the search, he could be released.

andrea.siegel@baltsun.com

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