Hands Up, Pants Down, But Is that An Illegal Search?

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By Tanya Roth, Esq. on September 16, 2010 12:56 PM

No good deed goes unpunished. Officer Kara Breci discovered the truth in that old saying during a drug bust outside White Castle burgers in November of 2008. When she spotted a possible drug deal going down in the parking lot, Officer Breci and her partner swung into action, got the suspects out of their vehicle and ordered hands in the air.

According to the Star-Tribune, unfortunately the drug bust wasn't the only thing that when down that fateful day, so did the pants of suspect Frank Wiggins, when he raised his hands. Out of kindness, or just a reluctance to get any better view of the suspect's underwear, Officer Breci reached to hoist Wiggins' pants back into place. That's when she found the gun.

Wiggins tried to have the gun suppressed at trial, but that motion was denied. You will recall that the Fourth Amendment and the exclusionary rule law prohibit the entry of evidence obtained through an illegal search into trial. Wiggins was duly convicted for illegally possessing the firearm and sentenced to five years in prison.

The Star-Tribune reports Frank Wiggins appealed the conviction on the basis that the helpful hoisting of his pants by the police officer amounted to an illegal search. Imagine the delight of the judge's clerks at the Minnesota Court of Appeals upon finding this one on their desks. A question of first impression, the court announced, "This case requires us to determine the constitutionality of a novel police procedure which, as far as we can tell, has never been reviewed on appeal by this court or any other," wrote Judge Kevin G. Ross in the opinion filed Tuesday, September 14.

The court found that the pants pull did not amount to an illegal pat search which would have kept the gun out of the evidence. Judge Ross wrote, "Wiggins argues that affirming the district court would encourage officers to trample the privacy of young people who participate in this baggy-pants fashion trend. The concern is unwarranted." At bottom, the court decided that by "re-aligning" his pants, Officer Breci was trying to increase Wiggins' privacy, not invade it.

To lend a final bit of dignity to the proceeding, and to dispel any ideas that Midwesterners are a stern bunch, devoid of any sense of humor, please note the final twist of the knife from the court: "We are confident that our opinion will not be misconstrued to suggest that an officer can freely meddle with a person's clothes to the refrain, 'Pants on the ground, pants on the ground'..."

We vote for Judge Ross as the next American Idol judge. He would beat the pants off J.Lo.

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