COCAINE-POSSESSION CONVICTION OVERTURNED

Officers had no right to conduct full-body search without a warrant,
court rules

An appellate court on Thursday overturned the conviction of a Houston
man for cocaine possession, saying police did not have the right to
arrest him and conduct a full-body search without a warrant.

By a 2-1 vote, a three-judge panel of the 14th Court of Appeals said
Danny Joe McGee, who had pleaded guilty to felony cocaine possession,
should get a new trial and that the cocaine that was seized from his
body cannot be introduced into evidence.

According to the appellate opinion, two Houston Police Department
officers arrested McGee and two minors on December 1997, after a
reliable informant called and said McGee was hiding crack cocaine in
his buttocks.

McGee, who was 19 at the time, and the two minors were handcuffed and
taken by a patrol car to a fire station, and the officers refused "to
give an explanation for this strange destination," the opinion said.

At the fire station, Officer Steven C. Rowan put on latex gloves "and
proceeded to perform a visual check of the buttocks and external anal
area of (McGee) and one of the two juveniles," the opinion said.

Although the officers said that a plastic covered object was in plain
view, McGee and the youths denied it was visible.

McGee filed a motion to suppress the evidence, saying his
constitutional protections against unreasonable search and seizure had
been violated. A trial judge refused to grant the motion, and McGee
was sentenced to 90 days in jail after pleading guilty. He received a
lighter sentence in exchange for his plea, court officials said.

McGee's attorney, Kevin Howard, said he is pleased the appellate court
overturned the conviction.

"The U.S. Supreme Court has said if people swallow or put something in
an anal cavity to hide it from police, the police can give a laxative
or watch or get a professional to get it out," Howard said. "You can't
have police haul someone off to a fire station and do a digital
search. It's highly intrusive and invasive."

McGee said Howard and the two juveniles filed a federal court lawsuit
last year against the city, Officers Rowan and Dale M. Knapp, as well
as Houston Fire Department Capt. B.D. Grisham, who allegedly allowed
the searches to proceed.

He said Rowan testified in McGee's criminal trial that he frequently
conducts such searches and has done them at other fire stations.

The appellate court did not address the issue of whether the search
itself was improper. It said the officers did not have the right to
arrest the group without a warrant because there was no indication
that the suspects were a flight risk.

Prosecutors involved in the case could not be reached for
comment.