TX14: Patdown of “‘more than average’ size” bust was unreasonable

Patdown of female breasts was unreasonable. Overly intensive search was suppressed. State v. Williams, 312 S.W.3d 276 (Tex. App.—Houston (14th Dist.) 2010):

Here, the trial court concluded that Officer Duncan would have been justified in conducting a pat-down of Williams. The distinction between Sheppard and Carmouche and the case at bar is that Officer Duncan did not conduct a Terry pat-down before employing more intrusive means of searching Williams. If a pat-down had been conducted, and if a weapon or other contraband had been detected as a result, then either Officer Duncan or the female officer could have attempted to extract the item or could have conducted a more intrusive search.

Additionally, although Officer Duncan had been told that Williams had a knife, he was not told, nor was there any other indication, that Williams had hidden the knife in her bra. Furthermore, there is nothing to show that a pat-down would have been dangerous or ineffective. Officer Duncan stated that he did not want to pat-down a female, but the State has not cited any authority to show that he was therefore justified in conducting a more intrusive search. And the “more than average” size of Williams’s bust, as Officer Duncan described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search. See Balentine, 71 S.W.3d at 770. Because the State has not presented us with a situation justifying a search exceeding the scope of a pat-down, we cannot say the trial court abused its discretion in suppressing the evidence.