Hoisting Suspect’s Sagging Pants Not a “Search,” Court Rules

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It seems like only yesterday, and in fact it was only yesterday, that I was again lamenting the amount of energy wasted on the fight against sagging pants.  I don't like low pants any more than you do, I just think we have more important things to worry about, and that criminalizing this is not the answer.  What to do?

One reader suggested that rather than pass laws, a better strategy would be to get middle-aged white people to start wearing sagging pants, because once that happens it will no longer be "cool" and the problem will take care of itself.  That's a great idea, in theory.  But then you have a bunch of middle-aged white people wearing sagging pants, and nobody wants that.  That's just destroying the village in order to save it.

But here's something else the low-pantsed may need to consider: if you go around with your pants down, you may be compromising not only your dignity but your Fourth Amendment rights.

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. An officer investigating a suspected drug deal directed appellant Frank Wiggins from a car, ordered him to raise his hands high overhead, and then discovered a handgun in his pocket when she hoisted up his sagging pants that had dropped to hang around his knees. . . . We must decide whether the unique wardrobe assist was a search subject to constitutional regulation [under] the Fourth Amendment.

So begins Minnesota v. Wiggins, a decision handed down on Tuesday by the Minnesota Court of Appeal. Question presented: was the pants-hoisting a "search" for Fourth Amendment purposes?  Brief answer: no.

The district court's view was that the officer's conduct was not a search, but rather "an accidental finding of a gun as she's trying to help him get his pants into a decent position."  The Court of Appeal was willing to buy that:

As a result of the lawful seizure and the officer’s specific directions, which effectively prevented Wiggins from holding his own pants up or raising them, Wiggins was standing in a public parking lot on a busy St. Paul street with his hands high in the air and his pants drooping at his knees. Even assuming that Wiggins intended his pants to sag somewhat, the district court aptly construed the knee-level positioning as “extreme.”

The officer did not testify about her motive for raising Wiggins's pants, but the court found that under those circumstances her conduct was "objectively reasonable."  He could not raise his own pants because he had been (properly) ordered to keep his hands in the air, and given his extreme knee-level pants positioning, it was not unreasonable for the officer to raise them for him.  The pants contact may have been a precursor to a pat-down search, the court held, but it was not itself a search, and therefore the Fourth Amendment was not violated.

Not surprisingly, Wiggins argued that such a holding "would encourage officers to trample the privacy of young people who participate in the baggy-pants fashion trend."  But the court found that concern unwarranted.  "Because judicial holdings are limited by their facts," it wrote, "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' under the guise of providing public assistance."

Still, those who choose to sag should be on notice that it may be hard to argue you have a reasonable expectation of privacy if you have your pants down around your knees.

Link: Minnesota v. Wiggins, No. A09-1987 (Minn. Ct. App. Sept. 14, 2010) (PDF).