APPEALS RULING LOOKS AT POLICE RIGHT TO DO CAVITY SEARCH

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."