People v. Hall

39 A.D.3d 100, 829 N.Y.S.2d 85
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 6, 2007
StatusPublished
Cited by1 cases

This text of 39 A.D.3d 100 (People v. Hall) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hall, 39 A.D.3d 100, 829 N.Y.S.2d 85 (N.Y. Ct. App. 2007).

Opinion

OPINION OF THE COURT

Saxe, J.

On this appeal by the People from an order granting suppression of physical evidence, we are asked to consider whether the police violated the Fourth Amendment’s prohibition against unreasonable searches and seizures by extracting a small bag secreted within defendant’s rectum. This took place at the police precinct, following defendant’s arrest for criminal sale of a controlled substance in the third degree, after the police observed a string protruding from his rectum in the course of conducting a strip search and visual body cavity inspection.

At the suppression hearing the People offered the testimony of Police Lieutenant Stephen Burnes as to his observation of a drug sale by defendant, and his subsequent observations during a search of defendant at the precinct after his arrest. Defendant offered the additional testimony of Police Officer Frederick Spiegel, who conducted the search of defendant.

Lieutenant Burnes stated that at approximately 8:30 p.m. on February 10, 2005, he was stationed on a rooftop at 128th Street and St. Nicholas Terrace in Manhattan. Using binoculars, Burnes observed Ross Meyers, whom he recognized from previous interactions, speaking with two men at the intersection, after which both men gave money to Meyers. Meyers then walked over to defendant, who was standing near a bodega on the corner. Meyers and defendant had a short conversation and then went into the bodega, with Meyers staying near the front door and defendant going to the back. Defendant then came over from the back of the bodega to where Meyers was standing and put something into Meyers’s hand. Meyers walked outside, went over to the two men on the sidewalk, and held his hand open so that Burnes could see that he was holding small white objects, which the two men took from Meyers’s hand. The two men went off in different directions. Meyers and defendant each stayed in the area for a few minutes more and then left [102]*102separately. A field team picked up Meyers and defendant, and they were taken into police custody.

Officer Spiegel brought defendant to a detention cell and conducted a strip search of him. Once defendant was completely disrobed, Spiegel asked him to squat by bending at the knees. As the defendant did so, Spiegel saw a string hanging from defendant’s rectum and called Burnes into the cell. Burnes entered the cell and, in a loud voice, instructed defendant to remove the string. When defendant would not comply, Burnes and Spiegel grabbed both of defendant’s arms and brought him to the ground so that he was in a bent-over position; Burnes then pulled the string out of the defendant’s rectum, recovering a plastic bag containing rocks of crack wrapped in plastic wrap.

Burnes explained that the police strip-searched defendant in this manner because in the drug possession cases he had handled, “a good majority” of the people arrested “usually” place drugs between their buttocks. Burnes added that in at least one out of two drug arrests, the suspects had hidden drugs in such a manner. Officer Spiegel stated that a strip search was necessary because people who sold drugs in the four-block area where defendant was arrested generally carried very small pieces of crack wrapped in plastic and secreted down their pants or inside their jackets and pockets.

The hearing court, finding that both Burnes and Spiegel were credible witnesses, termed the police conduct a body cavity search unjustified by exigent circumstances, citing Schmerber v California (384 US 757 [1966]) and People v More (97 NY2d 209 [2002]), and accordingly, suppressed the resulting evidence.

Upon the facts as found by the hearing court, we disagree with its analysis, and hold that it was error to suppress the evidence seized from defendant’s person. The actions taken by the police were justified and reasonable.

In Schmerber, the Supreme Court deemed it a Fourth Amendment violation to forcibly take a blood sample without a warrant following the defendant’s involvement in an automobile collision, in order to determine whether he was driving while intoxicated at the time of the accident. The Court said:

“The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these [103]*103fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” (384 US at 769-770 [emphasis added].)

The term “clear indication” was clarified, in United States v Montoya de Hernandez (473 US 531, 540 [1985]), as necessitating a “particularized suspicion” that the evidence “might be found within the body of the individual.”

While the foregoing cases focused on police intrusions within the suspect’s body, the Supreme Court, in Bell v Wolfish (441 US 520 [1979]), considered the constitutionality of a blanket policy requiring visual body cavity searches of all pretrial detainees being housed in a correctional facility after seeing visitors. The Court held that the reasonableness of such visual body cavity searches must be determined by considering (1) the scope of the intrusion, (2) the manner in which the search is conducted, (3) the justification for initiating the search, and (4) the place in which the search is conducted (id. at 559). It concluded that the correctional facility’s legitimate security interest in preventing the smuggling in of weapons, money, drugs and other contraband outweighed the intrusion of a visual body cavity search when carried out reasonably, even absent probable cause, particularized suspicion or clear indication (id. at 560).

A ruling applicable to incarcerated jail inmates is not automatically applicable to those newly arrested. The United States Supreme Court has not yet specifically considered the circumstances under which a strip search incident to arrest is justified (see Sarnicola v County of Westchester, 229 F Supp 2d 259, 269 [SD NY 2002], citing Illinois v Lafayette, 462 US 640 [1983]). In Weber v Dell (804 F2d 796 [2d Cir 1986], cert denied sub nom. County of Monroe v Weber, 483 US 1020 [1987]), the court considered a challenge to a blanket policy of conducting a strip search of persons arrested for misdemeanors, holding such a search unlawful unless there is a “reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest” (id. at 802; see also Shain v Ellison, 273 F3d 56 [2d Cir 2001], cert denied sub nom. Nassau County v Shain, 537 US 1083 [2002]). In this state, that rule has been applied by the Second Department to reject as illegal a strip search incident to arrest based upon the arresting officer’s observation of the individual’s removal of a small [104]*104bag of marijuana from his boot (see People v Manley, 13 AD3d 653 [2004], lv denied 4 NY3d 833 [2005]).

The discussion in Weber v Dell has not yet been applied to any policy to strip-search individuals arrested for felonies.

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Bluebook (online)
39 A.D.3d 100, 829 N.Y.S.2d 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hall-nyappdiv-2007.