The law and self-massage

The city needs a warrant to search and seize naked dancers.

THE UNDERCOVER DETECTIVE'S mission—and he readily accepted it—was to while away the afternoon at Rick's nude dance club in Lake City, watching the girls perform and taking descriptive notes. Or rather, recording them.

"Gabrielle on the main stage," Detective Ken Swanson said covertly into his mini tape recorder at a darkened table. "Black sparkling string bikini. She touched her anus, buttocks, massaged her breasts. Gabrielle has long brown hair, slightly on the heavy side. Silver is on the main stage. She is wearing white T-bar panties, white silky top. She has short blond hair and a tattoo on her left upper arm and one on her left calf. She just massaged her breasts, pinched her nipples, and is now massaging her vagina."

For the good of the public weal, Swanson endured a dozen topless performances that day, November 20, 1995. Though cops traditionally drop by nudie joints supposedly looking for illegal groping of patrons by dancers, Swanson was assigned to determine if the dancers' touching of themselves was illegal conduct and possibly obscene. After a few exhausting hours, he decided it was.

A small army of Seattle police officers rounded up Gabrielle, Silver, and 11 other dancers—dutifully confiscating their bikinis as evidence—and carted them off to jail. A few months later, the city put one of the performers, Darcy Poole, 29—stage name Chanel—on trial in a test case. The city lost. A bemused jury found Poole not guilty of violating adult entertainment laws, and the charges against the 12 others were then dropped.

City Hall's morality ploy not only failed, but now, four years later, may have expensively backfired. Finding the police action unconstitutional, the State Court of Appeals says the club manager and two dancers can sue the city for civil rights violations and monetary damages. In essence, it wasn't the dancing but the arrests that were illegal.

The ruling results from a civil case brought by Rick's manager Nick Furfaro, a longtime local nude dance club figure, and dancers Brandy Kidder and Esmerelda Silva. The damage case was tossed out by a King County Superior Court judge in 1997 after a jury determined police had probable cause to make the bust. To no avail, the threesome argued that since a question of obscenity was involved, a judicially issued arrest warrant was first required, based on US Supreme Court decisions.

State appeals justices now agree and ordered a new trial for the trio last month, after pointing out that in obscenity cases "live performances are entitled, no less than books and film, to the same protection of the First and Fourteenth Amendments against unlawful censorship." The lack of a warrant constitutes illegal search and seizure—of the women and their scanty garments—the court determined.

The city is still mulling over its options: appeal, settle, or return to the courtroom now knowing its test excursion into dance-hall obscenity was improper. As the appeals panel noted, directing police to focus on "body parts alone . . . comes at the expense of sensitivity to the nuances of expression." Apparently the judges do not consider Detective Swanson's description of Silver "massaging her vagina" an artful critique.

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