McGee v. State
| Decision Date | 23 April 2003 |
| Docket Number | No. 1408-00.,1408-00. |
| Citation | 105 S.W.3d 609 |
| Parties | Danny Joe McGEE, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Kevin Howard, Houston, for Appellant.
Rikke Burke Graber, Asst. DA, Houston, Matthew Paul, State's Attorney, Austin, for State.
Before the court en banc.
KEASLER, J., delivered the opinion of the Court, joined by KELLER, P.J., and WOMACK and HERVEY, JJ., and joined in part by JOHNSON, HOLCOMB, and COCHRAN, JJ.
Danny 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.
STATEMENT OF FACTS
The 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.
Officer 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 Rowan approached the group, although he denied that he was smoking marijuana.
Officer 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.
PROCEDURAL HISTORY
Before 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.
ANALYSIS
The 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
The evidence presented during the suppression hearing established that McGee was arrested without a warrant. And neither party contests that there was a warrantless 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.
A. Article 14.01(b) In 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.
Probable 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.
Here 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).
Therefore, 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.
A. Search Incident to Arrest
Pursuant 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.
There 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...
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