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Md. court puts privacy limits on warrantless body searches

The Baltimore Sun

The state's highest court has invalidated the body search of a drug offender, effectively wiping out his conviction by ruling yesterday that police had not given him enough privacy when they checked a common drug-stashing location: between his buttocks.

Baltimore County detectives could have searched the Fallston man at a police station or "in the privacy of a police van," Judge Clayton Greene Jr. wrote for the majority of the Court of Appeals. Instead, a gloved investigator searched John August Paulino at night at the Dundalk carwash where he was arrested and where his friends who were with him might have seen.

Greene called the search unconstitutional and unreasonable, writing that it was not an emergency and should not have been done in public.

But Judge Lynne A. Battaglia, a former U.S. attorney for Maryland, disagreed, saying that the majority opinion ties the hands of police.

"By holding as it does, the majority impermissibly restricts the police's ability to conduct reasonable searches under the Fourth Amendment for drugs that are secreted on an individual known to be carrying such drugs to prevent their loss," she wrote in the dissent.

The majority considered the search of Paulino a strip search. The dissent did not, but said that, even if it were a strip search, it was reasonable under the circumstances.

The attorney general's office, which argued that the search was valid, will consider taking the case to the U.S. Supreme Court.

"Our office will be reviewing the opinion carefully to see if we will seek further review," said Kathryn Grill Graeff, chief of criminal appeals.

David P. Henninger, one of Paulino's trial lawyers, said the crack cocaine confiscated in the illegal search was the key piece of evidence. Without it, Henninger said, the state has no case.

He also said the ruling "is going to change search law a little bit in this state" because it limits how police peek into a popular drug-stashing place.

"We get these complaints all the time," Henninger said. "I've got two or three of these pending right now."

Andrew D. Levy, a lawyer in private practice who also teaches criminal law at the University of Maryland, said courts have to weigh the facts of a warrantless search to decide whether it fails to meet the standard for a reasonable search.

"It is a balancing test," he said. "The majority thought the search could have been done more privately without any harm to the police function."

Had police been able to show this was an emergency, the outcome might have been different, he said.

Baltimore County police spokesman Bill Toohey said he could not comment on the case because the department's lawyers have not had a chance to review the ruling.

Police had received a tip from an informant that Paulino would be at the carwash the night of Sept. 29, 2000, and where he would be hiding the drugs. They arrested and searched him there.

Police said in a pretrial hearing that Paulino wore his pants fashionably low and that a detective lifted up Paulino's shorts while he was lying on the ground and pulled out the stash of drugs. Paulino, however, described a more intrusive search.

It was unclear from the court documents exactly how much the suspect's three friends saw of Paulino when he was searched.

Paulino, now 28, was convicted in 2001 of possession of drugs with intent to sell. As a repeat offender, he was sentenced to 10 years in prison without parole. He is being held at the Maryland Correctional Training Center in Hagerstown. Because of the complicated court process and the possibility of an appeal, it is unclear when and if he might be released.

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