Public drug search ruled unreasonable

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ANNAPOLIS (AP) — Police did not give a drug suspect enough privacy when conducting a public body search, the state’s highest court has ruled in overturning the suspect’s conviction.

A police investigator found crack cocaine between John August Paulino’s buttocks after arresting him in September 2000 at a carwash in the east Baltimore County neighborhood of Dundalk. Police could have searched the Fallston man at a police station or “in the privacy of a police van” but chose to search him at the carwash where he was arrested and where his friends who were with him might have seen the search, Judge Clayton Greene Jr. wrote in the majority opinion for the Court of Appeals.

The court said the search was unconstitutional and unreasonable, ruling it was not an emergency and should not have been conducted in public.

Judge Lynne A. Battaglia, a former U.S. attorney for Maryland, disagreed in the dissenting opinion, saying the ruling 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,” Judge Battaglia wrote.

The attorney general’s office is considering whether to appeal the ruling 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.

Paulino, 28, was convicted in 2001 of possession of drugs with intent to sell and was sentenced as a repeat offender to 10 years without parole. Whether he will be released as a result of the ruling is not clear because of the possibility of appeal.

David P. Henninger, one of Paulino’s trial lawyers, said the ruling “is going to change search law a little bit in this state.”

Baltimore County Police Department spokesman Bill Toohey said he could not comment on the case because department’s lawyers had not reviewed the ruling.

Andrew D. Levy, a lawyer who also teaches criminal law at the University of Maryland, said courts must decide whether such warrantless searches meet the standard for a reasonable search.

If police had been able to show an emergency search was needed, the outcome might have been different, he said.

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

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