Is it too much to ask that the police not look down our pants during an arrest? An interesting case recently from the State of Virginia highlights the limits of police conduct in arresting people on the street.

Most of the Bill of Rights in the Constitution are vaguely written. It's strange that our greatest rights as citizens are written in vague terms that courts may interpret any way they wish. But the Fourth Amendment is quite specific and says that searches and seizures must be reasonable and the police need a warrant. Here's what it says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The right of the people to be left alone was important to the people who wrote the Constitution because they were tired of police abuses. But the courts have carved out exeptions under the Fourth Amendment to deal with special circumstances, like when someone is arrested on the street and the police think the suspect may have a hidden weapon. Obviously, there's no time to get a warrant under those circumstances, so the police generally can do a quick search to make sure the suspect cannot pull off a surprise attack.

You can imagine how that exception can be abused. Some police officers might think that someone suspected of committing a crime on the streets would have contraband or some other illegal things on his person, so a quick body check might do some good. With a hat-tip to the Crime and Federalism blog, That's what happened to a guy in North Carolina.

In a case decided recently, the Court of Appeals in North Carolina ruled that an officer had no right to shine a flashlight into the pants of a suspect. While the suspect did consent to a seach, the Court ruled that he could not have reasonably expected that the officer would be looking down his pants and into his crotch, where he found drugs stashed away. The Court explained:

We conclude that Officer Correa exceeded the scope of defendant's consent when he inspected defendant's genitals. First, Officer Correa did not obtain specific consent to visually inspect defendant's genitals. Officer Correa simply obtained general consent to search defendant's person. Second, given the scope of Officer Correa's first search of defendant, a reasonable person would not have expected the second search to entail such an intrusive genital inspection. Third, the fact that defendant did not expressly limit the scope of the second search does not make the second search reasonable. Defendant could not reasonably have expected that Officer Correa would visually inspect defendant's genitals. Therefore, defendant had no reason to limit the scope of the second search. This is further demonstrated by defendant's reaction when Officer Correa pulled defendant's sweat pants away from defendant's body and trained his flashlight on defendant'sgenitals. Defendant objected to this intrusion; however, the trial court found that Officer Correa had already seen the white cap of the pill bottle. Nevertheless, defendant's reaction demonstrates that he could not reasonably have expected the excessive scope of Officer Correa's second search.

. . . At the suppression hearing, Officer Correa testified that when he asked for consent to search defendant a second time, he "was not really expecting to find anything, honestly." Officer Correa also testified on cross-examination that "[w]hen I ask if I can search, I check everywhere. That's just standard procedure, that's just the way I was taught, that you search everywhere because drugs, guns, money, weapons, anything can be concealed under their clothing as well." Officer Correa's testimony demonstrates that he did not have any reason to suspect that defendant, in particular, was concealing weapons or contraband near his genitals. Rather, Officer Correa conducted genital searches as a matter of course. Furthermore, Officer Correa had already conducted a full search of defendant's person, which had not uncovered any weapons or contraband, when he conducted an inspection of defendant's genitals. Because Officer Correa's first full search did not uncover any weapons or contraband, OfficerCorrea reasonably did not expect to find anything on his second search, and accordingly had little justification for conducting a visual inspection of defendant's genitals. Officer Correa's discovery of the cash in defendant's pocket, while suspicious, did not authorize Officer Correa to proceed with such an intrusive search.

So the officer would search people like this as a matter of course. I would imagine the discussion would go something like this:

What are you searching for?

I don't know. I'll know it when I find it.

The consequences of this illegal search were dramatic. As a result of the contraband found in the suspect's pants, he was found guilty and sentenced to 130 to 165 months in prison. The successful appeal won him a new trial.