105 SW3D 609 - McGee v. State

¶1OPINION

KEASLER, J.,

¶2delivered the opinion of the Court,

joined by KELLER, P.J., and WOMACK and HERYEY, JJ., and joined in part by JOHNSON, HOLCOMB, and COCHRAN, JJ.

¶3Danny Joe McGee argues that the crack cocaine retrieved from between his buttocks during a visual body cavity inspection should have been suppressed because it was the product of a warrantless arrest and the fruit of an unconstitutional search. We disagree.

¶4Statement of Facts

¶5The evidence, viewed in the light most favorable to the trial court’s ruling,1 showed that on December 20, 1997, Officer Rowan received a tip from a concerned citizen that McGee and two other men were selling crack cocaine at the intersection of Fleming and Cool Wood. The citizen gave Officer Rowan the names of McGee and one other man, and a detailed description of the clothing of all three. The citizen also told Officer Rowan that McGee was hiding the crack cocaine between his buttocks. It is uncertain whether Officer Rowan had relied on the informant in the past because he provided contradicting testimony, stating at first that he had relied on the informant in the past, then later denying prior use of the informant.

¶6Officer Rowan went to the location and found three men who matched the description. Upon approaching the men, the officer smelled marijuana and saw blue smoke surrounding the men. Officer Rowan testified that based on his training and experience, the blue smoke was from marijuana. He asked the men for identification and corroborated the two names provided by the citizen. The officer then checked the men for weapons and searched the area where they were standing. Although there were no weapons, a cigar containing marijuana was discovered on the ground. McGee admitted that at least one person was smoking marijuana when Officer Row*613an approached the group, although he denied that he was smoking marijuana.

¶7Officer Rowan handcuffed the three men, placed them in the squad car, and drove to a nearby fire station. At the fire station, Officer Rowan took McGee to a secluded area of the station and compelled McGee to drop his pants, bend over, and spread his buttocks. Officer Rowan proceeded to perform a visual search of McGee’s anal region. The officer testified that he saw several rocks of crack cocaine wrapped in red plastic in plain view lodged between McGee’s buttocks. He further testified that the crack cocaine was not inside McGee’s anus, but when the cocaine was exposed, McGee attempted to push it into his anus. Officer Rowan testified that he was able to retrieve the drugs before McGee pushed them into his anus without digitally probing the anus. McGee was then charged with possession of cocaine.

¶8PROCEDURAL HISTORY

¶9Before trial, McGee presented his motion to suppress evidence, which the trial court denied after a hearing. McGee then pled guilty to the charge of possession of cocaine weighing less than one gram and was sentenced to 90 days’ confinement. McGee subsequently filed a notice of appeal claiming that the trial court erred in denying his motion. Specifically, McGee argued that the evidence recovered was the fruit of (1) an unconstitutional arrest not justified by the Texas Code of Criminal Procedure and (2) an unconstitutional search. The court of appeals agreed with McGee, holding that the evidence seized was the product of a warrantless arrest not justified by Articles 14.01, 14.03, or 14.04 of the Texas Code of Criminal Procedure.2 It also held that the body cavity search was unreasonable and so the fruits of the search should have been suppressed.3 We granted the State’s petition to review both rulings.

¶10Analysis

¶11I. Warrantless Arrest

¶12The State argues that the Court of Appeals erred in concluding that none of the statutory requirements to justify a warrantless arrest were proven. When a defendant seeks to suppress evidence on the basis of an illegal arrest, the burden of proof is placed on the defendant to rebut the presumption of proper conduct.4 The defendant may satisfy this burden by establishing that he was arrested without a warrant.5 Once this is shown, the burden shifts to the State to either produce evidence of a warrant or prove the reasonableness of the arrest.6 The State demonstrates reasonableness by showing that one of the statutory exceptions to the warrant requirement has been met.7

¶13The evidence presented during the suppression hearing established that McGee was arrested without a warrant. And neither party contests that there was a war-rantless arrest. So the burden shifted to the State to prove that the requirements of a warrantless arrest were satisfied. This is where the substance of the State’s petition lies.

¶14A. Article 14.01(b)

¶15 *614In its second ground for review, the State challenges the appellate court’s conclusion that Article 14.01(b) was not satisfied by the State. In Texas, a warrantless arrest is permitted only when (1) probable cause for the arrest exists and (2) at least one of the statutory exceptions to the warrant requirement is met.8 Article 14.01(b) provides:

A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

¶16Probable cause exists where police have reasonably trustworthy information sufficient to warrant a reasonable person to believe that a particular person has committed or is committing an offense.9 This court has previously upheld arrests under Article 14.01(b) when police officers personally observed behavior that was not overtly criminal but when coupled with the officers’ prior knowledge produced probable cause.10 For instance, in Lunde, officers received a tip from an informant with personal knowledge that the defendant was dealing heroin. Officers went to the specified location and confirmed the physical description given by the informant. They then saw the defendant engage in behavior officers described as consistent with a drug transaction. Though the court pointed out that the behavior witnessed was not an overt criminal act, it upheld the warrantless arrest under Article 14.01(b) based on the prior information received from the informant.

¶17Here we have nearly identical facts. An informant approached Officer Rowan and relayed information about criminal activity he had witnessed. The informant provided Officer Rowan with a detailed description of McGee. He told the officer that McGee was wearing a “yellow rain slicker, black rain pants, and a black stocking cap,” and that McGee could be found on the corner of Fleming and Cool Wood. The informant also provided McGee’s name and the name of one of his two companions. The informant was concerned that McGee was selling crack cocaine in the area and that he was hiding the cocaine between his buttocks. Based on this tip, Officer Rowan proceeded to the corner of Fleming and Cool Wood and saw that a person standing there, McGee, matched the description provided by the informant because he was wearing a yellow rain coat, black rain pants, and a black cap. The officer then asked the men for identification and their names matched those provided by the informant. He observed marijuana smoke in the air above McGee and a marijuana cigarette on the ground next to him. He also smelled the odor of marijuana emanating from McGee. The cloud of marijuana smoke in the air, the smell of marijuana, and the marijuana cigarette were consistent with the offense of possession of marijuana. When coupled with the officer’s prior knowledge supplied by the informant, the observations were sufficient to provide Officer Rowan with probable cause to arrest under Article 14.01(b).

¶18Therefore, Article 14.01(b) excused Officer Rowan from having to obtain an arrest warrant. Because we hold that the arrest was justified under 14.01(b), we need not consider the State’s first and third grounds for review concerning Articles 14.03 and 14.04.

¶19 *61511. Unconstitutional Search

¶20A. Search Incident to Arrest

¶21Pursuant to the Fourth Amendment, a warrantless search of either a person or property is considered per se unreasonable subject to a “few specifically defined and well established exceptions.”11 The Supreme Court has held that voluntary consent to search, search under exigent circumstances, and search incident to arrest are among these exceptions.12 It is the State’s burden to show that the search falls within one of these exceptions.13 The State claims that since McGee was legally arrested, the search was reasonable as a search incident to arrest. A search incident to arrest permits officers to search a defendant, or areas within the defendant’s immediate control, to prevent the concealment or destruction of evidence.14 But it is unclear whether the exception permits officers to conduct the type of search that was performed on McGee.

¶22There are several different forms of searches, each involving a different degree of intrusion. Courts classify some of the more intrusive searches as “strip searches,” “visual body-cavity searches,” and “manual body-cavity searches.”15 The term “strip search” generally refers to an inspection of a naked person, without any scrutiny of the person’s cavities.16 A “visual body-cavity search” includes a visual inspection of a person’s anal or genital areas.17 A “manual body-cavity search” involves some degree of probing or touching a person’s body cavities.18 Officer Rowan testified that he ordered McGee to bend over and spread his buttocks for inspection, but that he did not touch or probe McGee’s anus. So here we are confronted with the legality of a visual body-cavity search. The question of whether a search incident to arrest includes a visual body-cavity search is one of first impression in this Court. We turn to existing case law for guidance in our determination.

¶23In United States v. Robinson, the Supreme Court has held that a search incident to arrest authorizes the police to conduct “a full search of the person.”19 But Robinson did not do away with the requirement that all searches be reasonable, nor did it hold that all searches to arrest, no matter how intrusive, are per se reasonable.20 “To the contrary, since Robinson, the Supreme Court has continued to emphasize that Fourth Amendment jurisprudence prohibits unreasonable searches *616incident to arrest.”21 So to determine whether the search was constitutional, it is not enough to determine that it was a search pursuant to arrest as the State contends. Rather, we must determine whether the search was reasonable.

¶24In Bell v. Wolfish, the Supreme Court held that a reasonableness inquiry requires a court to balance the need for the particular search against the invasion of the personal rights that the search entailed.22 Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.23 Each analysis will turn on the particular facts and circumstances of the underlying case.24 No one factor is determinative.

¶251.Scope of the Intrusion

¶26Visual body-cavity searches are among the most intrusive of searches.25 Its intrusiveness “cannot be overstated.”26 We agree with the Court of Appeals that visual body-cavity searches can be “demeaning, dehumanizing, undignified, humiliating, [and] terrifying....”27 However, our inquiry does not end here. We must still determine whether the legitimate interests of law enforcement outweigh the intrusiveness of the search.

¶272. Manner in which Search was Conducted

¶28In reviewing a visual body-cavity search, we must decide whether, on the whole, the manner in which the search was conducted was reasonable.28 One factor we may consider is whether the search was violent.29 While it may have been an uncomfortable experience for McGee, that is not sufficient to classify the search as violent.

¶29We may also consider whether the officers conducting the search had training and/or experience in conducting such searches.30 Officer Rowan testified that while he had never had formal training for conducting cavity searches, he had on-the-job experience while working with senior officers. He also stated that it was commonplace for criminals to hide narcotics in their body cavities. So while Officer Rowan never had formal training, we find that his work experience qualified him to perform the search in this instance.

¶30So we conclude that the manner in which the search was conducted was reasonable, which weighs in favor of the conclusion that the search was reasonable.

¶313. Justification for the Search

¶32The Supreme Court has upheld the use of visual body cavity searches *617based on suspicion short of probable cause.31 There is some debate among the courts as to what level of justification an officer must have before being permitted to perform a visual cavity search.32 A distinction is also made for body cavity searches performed at borders or in prisons, as suspects in those cases possess a diminished expectation of privacy.33 In this case there was not a diminished expectation of privacy as McGee’s search was not conducted at either a border or in a prison. But we have already established that the arresting officer had probable cause to believe that McGee was engaged in illegal activity. Probable cause is the highest level of justification employed by the courts. While we do not create a per se rule that probable cause always justifies a body cavity search, in this instance we find from the totality of the circumstances that Officer Rowan had sufficient justification to believe that a search was necessary.

¶334. Where the Search was Conducted

¶34The Ninth Circuit has held that the search must be conducted in a hygienic environment where there is no risk of infection.34 We agree. The search occurred in a fire station. Officer Rowan obtained sanitary rubber gloves to conduct the investigation. The fire station was not as sterile an environment as a hospital. But since Officer Rowan was merely visually inspecting the area between the buttocks and there was no penetration of McGee’s anus, we believe on the whole it was reasonable. Given that there was no penetration of the body, a less sterile environment was satisfactory.

¶35The Fourth Circuit provides additional guidance. It has held that an emphasis should be placed on whether the officer sought to protect the privacy interests of the individual by conducting the search in a private area.35 That court noted that strip searches and body cavity searches involve such an intrusion that they should rarely, if ever, be conducted in public places.36 We agree that visual body cavity inspections should not be conducted in a public place. Here Officer Rowan testified that he searched each of the suspects one at a time. Each was taken to a separate location, which the officer testified as being “more secluded” than the rest of the fire station. He also testified that only his partner was in the same area. Though Officer Rowan did not take McGee into a separate room to conduct the search, we find that he properly conducted himself so as to protect the privacy interests of McGee.

¶36Three of the four factors weigh in favor of the conclusion that this search was reasonable. The trial court was correct in denying McGee’s motion to suppress.

¶37Conclusion

¶38Because Article 14.01(b) of the Code of Criminal Procedure excused the arresting *618officer from having to obtain an arrest warrant, McGee’s arrest was valid. Further, the visual body cavity search in this instance was a reasonable search incident to arrest, thereby excusing the officer’s need to obtain a search warrant. The Court of Appeals was incorrect in holding that the cocaine should have been suppressed. We reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

¶39COCHRAN, J., filed a concurring opinion, joined by JOHNSON and HOLCOMB, JJ.

PRICE, J., filed a concurring and dissenting opinion joined by MEYERS, J.

¶40. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

¶41. McGee v. State, 23 S.W.3d 156, 161-66 (Tex.App.-Houston [14th Dist] 2000).

¶42. Id. at 168.

¶43. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986).

¶44. Id.

¶45. Id. at 9-10.

¶46. See generally Tex.Code Crim. Proc. Ann. chapt. 14 (Vernon 1981).

¶47. Stull v. State, 772 S.W.2d 449, 451 (Tex.Crim.App.1989).

¶48. Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991).

¶49. See Miller v. State, 458 S.W.2d 680 (Tex.Crim.App.1970); Lunde v. State, 736 S.W.2d 665 (Tex.Crim.App.1987).

¶50. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

¶51. United States v. Edwards, 415 U.S. 800, 808-09, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974) (search incident to arrest); Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (voluntary consent); Vale v. Louisiana, 399 U.S. 30, 34 — 36, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) (exigent circumstances).

¶52. McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

¶53. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

¶54. See, e.g. Blackburn v. Snow, 771 F.2d 556, 561 n. 3 (1st Cir.1985); Deserly v. Department of Corrections, 298 Mont. 328, 995 P.2d 972, 976 n. 1 (2000); Hughes v. Commonwealth, 31 Va.App. 447, 524 S.E.2d 155, 159 (2000) (en banc).

¶55. Blackburn, 771 F.2d at 561 n. 3.

¶56. Id.

¶57. Id.

¶58. United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

¶59. See Amaechi v. West, 237 F.3d 356, 361 (4th Cir.2001).

¶60. Id. (citing Illinois v. Lafayette, 462 U.S. 640, 645, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983)).

¶61. 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

¶62. Id.

¶63. U.S. v. Lilly, 576 F.2d 1240, 1246 (5th Cir.1978).

¶64. See Wolfish, 441 U.S. at 558, 99 S.Ct. 1861; United States v. Lilly, 576 F.2d 1240 (5th Cir.1978); Patterson v. State, 598 S.W.2d 265, 269 (Tex.Crim.App.1980).

¶65. Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 711 (9th Cir.1989).

¶66. McGee, 23 S.W.3d at 167(citing Swain v. Spinney, 117 F.3d 1, 6 (1st Cir.1997); Mary Beth G. v. Chicago, 723 F.2d 1263, 1273 (7th Cir.1983)).

¶67. See Del Raine v. Williford, 32 F.3d 1024, 1040-41 (7th Cir.1994).

¶68. See Covino v. Patrissi, 967 F.2d 73, 80 (2d Cir.1992).

¶69. Del Raine, 32 F.3d at 1040-41.

¶70. Wolfish, 441 U.S. at 559-60, 99 S.Ct. 1861.

¶71. Compare Blackburn v. Snow, 771 F.2d 556, 564 (1st Cir.1985) (holding that body cavity searches should not be conducted on anything less than probable cause), with Rivas v. United States, 368 F.2d 703, 710 (9th Cir.1966) (holding that more than a mere suspicion is necessary for warrantless body cavity searches).

¶72. See United States v. Montoya de Hernandez, 473 U.S. 531. 537-40. 105 S.Ct. 3304. 87 L.Ed.2d 381 (1985) (dealing with border searches); Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (dealing with prison searches).

¶73. Huguez v. United States, 406 F.2d 366, 382 (9th Cir.1968).

¶74. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981).

¶75. Id.