Gun turned up after hands went up and pants fell down

  • Article by: CHAO XIONG , Star Tribune
  • Updated: September 14, 2010 - 10:41 PM

Court upholds cop's decision to pull up a suspect's baggy jeans.

White Castle, weed and baggy pants. It has all the elements of a comedy, but throw in a concealed handgun, a suspected drug deal and a wardrobe malfunction, and it's a Minnesota Court of Appeals case that even compelled a judge to quote an "American Idol" audition.

St. Paul police officer Kara Breci and her partner spotted a possible drug deal in a car at a White Castle parking lot in November 2008. They ordered the men out of their vehicle and told them to put their hands in the air. That's when suspect Frank Irving Wiggins' baggy pants, already dangerously low at the knees, fell to the pavement.

Breci hoisted the jeans and found a .38-caliber pistol inside the front pocket. Wiggins was eventually convicted of possession of a firearm by an ineligible person and sentenced to five years in prison. He challenged the legality of the pants-hoisting, with the case ultimately landing at the state Court of Appeals.

"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 an opinion filed Tuesday.

Breci and her partner encountered Wiggins and another man in a car in a high drug-activity area. A third man popped into the backseat. His hands were suspiciously slider-free.

"No one in the car appeared to be eating," Ross wrote.

The officers approached, and the backseat passenger admitted that a plastic bag contained marijuana. That's when the men were ordered out, and the pants fell.

Breci felt the gun through Wiggins' pants and asked him about it. He denied knowing what it was. Breci removed the gun.

Wiggins, 24, later tried to suppress the gun evidence in his case before district court, citing unlawful seizure and pat-search, but was denied.

Ross wrote that the circumstances of the drug search would "lead a reasonable officer to suspect that Wiggins was engaging in a drug deal," and that Breci's actions were not unconstitutional.

The judge wrote that Breci's actions weren't a search, but "incidental contact."

"Perhaps [Breci] decided to raise Wiggins' pants to afford him a bit of dignity regardless of her planned search," Ross wrote in the opinion. "Or perhaps she wanted to avoid the risk of contacting his genitalia through his underwear during her pat-search."

Breci's actions were intended to provide Wiggins with privacy, not deprive him of it, as a search would, Ross wrote. "We acknowledge that one might be offended by an officer's realigning of his pants: It is the sort of thing that one usually prefers to do for himself," the decision read. "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.

"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'..."

Chao Xiong • 612-270-4708

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