The Volokh Conspiracy - Maryland High Court Judge Urges Vulgar Clothing Exception to the Fourth Amendment:

Paulino v. State, decided Monday by Maryland's highest court, asked whether a particular search incident to arrest was reasonable. The police officers who arrested Paulino didn't just normally search him (just fine, even without a probable cause or a warrant, and even if done in public). They also, in a relatively public place, "lifted up Paulino's shorts" and "spread[] apart the cheeks of [his] buttocks" -- which revealed some drugs that Paulino had hidden between the cheeks (which is where an informant had told them Paulino often hid drugs).

The court held that under the circumstances in this case the search incident to arrest exception didn't justify such an intrusive search (which was not as intrusive as a manual body cavity search, but was more intrusive than most searches). That's an interesting and technical question that I won't get into here.

What struck me about the case, though, was Judge Cathell's short dissent:

I join Judge Battaglia's dissent and would further hold that when a person wears their pants below the level of their buttocks [as the defendant was -EV], he or she is intentionally offering that area for observation by the public and obviously has no expectation of privacy sufficient to prohibit a police officer from also looking.

If a person wants to have an expectation of privacy in that area of his or her body, he or she should keep their pants up when in public.

I don't see how this can make sense. Paulino wasn't wearing his underwear pulled down so that the drugs were visible; the underwear had to be pulled down for the police to find the drugs. The drugs were still hidden by the clothing; it was just one layer of clothing, customarily used as an undergarment, not two.

Imagine that Paulino wasn't wearing pants at all, either because he was at the beach or at a pool, or because he was just wearing only boxer shorts -- jarring and socially unacceptable in public, but surely no crime. I take it no-one would think that he had "no expectation of privacy" in what was under his swim trunks or boxers. No-one would say that since people at the beach, for instance, aren't wearing pants, there's no expectation of privacy (and therefore for constitutional purposes no Fourth-Amendment-triggering search at all, whether incident to arrest or otherwise) restraining the police from just looking under the trunks, or under the bottom or top of a bikini. Why then does wearing a pair of pants that doesn't entirely cover the shorts leave the police free to look under the shorts?

Am I missing something here? Thanks to Lowell Rudorfer for the pointer.

	[Eugene Volokh, June 7, 2007 at 6:27pm] Trackbacks Maryland High Court Judge Urges Vulgar Clothing Exception to the Fourth Amendment: Paulino v. State, decided Monday by Maryland's highest court, asked whether a particular search incident to arrest was reasonable. The police officers who arrested Paulino didn't just normally search him (just fine, even without a probable cause or a warrant, and even if done in public). They also, in a relatively public place, "lifted up Paulino's shorts" and "spread[] apart the cheeks of [his] buttocks" -- which revealed some drugs that Paulino had hidden between the cheeks (which is where an informant had told them Paulino often hid drugs). The court held that under the circumstances in this case the search incident to arrest exception didn't justify such an intrusive search (which was not as intrusive as a manual body cavity search, but was more intrusive than most searches). That's an interesting and technical question that I won't get into here. What struck me about the case, though, was Judge Cathell's short dissent: I join Judge Battaglia's dissent and would further hold that when a person wears their pants below the level of their buttocks [as the defendant was -EV], he or she is intentionally offering that area for observation by the public and obviously has no expectation of privacy sufficient to prohibit a police officer from also looking. If a person wants to have an expectation of privacy in that area of his or her body, he or she should keep their pants up when in public. I don't see how this can make sense. Paulino wasn't wearing his underwear pulled down so that the drugs were visible; the underwear had to be pulled down for the police to find the drugs. The drugs were still hidden by the clothing; it was just one layer of clothing, customarily used as an undergarment, not two. Imagine that Paulino wasn't wearing pants at all, either because he was at the beach or at a pool, or because he was just wearing only boxer shorts -- jarring and socially unacceptable in public, but surely no crime. I take it no-one would think that he had "no expectation of privacy" in what was under his swim trunks or boxers. No-one would say that since people at the beach, for instance, aren't wearing pants, there's no expectation of privacy (and therefore for constitutional purposes no Fourth-Amendment-triggering search at all, whether incident to arrest or otherwise) restraining the police from just looking under the trunks, or under the bottom or top of a bikini. Why then does wearing a pair of pants that doesn't entirely cover the shorts leave the police free to look under the shorts? Am I missing something here? Thanks to Lowell Rudorfer for the pointer.