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An appeals court last week dismissed criminal charges against a drug defendant who was subjected to an illegal strip search on the street in broad daylight. A unanimous panel of the New York Appellate Division, 1st Department, said that under a recent Court of Appeals ruling, the search unquestionably violated the defendant’s Fourth Amendment rights. “We have no difficulty in holding that a strip search, conducted in a public place, regardless of whether it includes a search of the arrested person’s body cavities, is not justified or reasonable absent the most compelling circumstances, that is, circumstances that pose potentially serious risks to the arresting officer or others in the vicinity,” the court wrote in People v. Mitchell. The court noted that under People v. More, a body-cavity search after an arrest is unwarranted in a defendant’s apartment unless exigent circumstances exist. Three years ago, an undercover police officer purchased narcotics at the corner of 127th Street and Lenox Avenue in Manhattan. He radioed his supervisor and described the suspect as a black man with a goatee wearing a black and gray plaid wool jacket and green pants. The undercover officer’s partners went to the scene but failed to find the man. Later in the afternoon, however, they found him at a nearby corner. The team’s supervisor got out of a van, approached the alleged seller, Darnell Mitchell, and handcuffed him without explanation. After he observed Mitchell fidgeting, the supervising officer patted the defendant down in search of a gun. He then told another officer to perform a strip search. Mitchell was ordered to bend over with his head inside the rear of the van while he was strip searched in the street, in front of a church. The search yielded two glassines of heroin. In May 2001, Mitchell was convicted of criminal sale and criminal possession of a controlled substance and sentenced to concurrent terms of 4-1/2 to 9 years in prison as a second felony offender. On appeal, the 1st Department ruled that the police had sufficient probable cause to arrest Mitchell, but said the strip search “was not reasonable.” “A strip search in a public place such as the police conducted here was particularly invasive of defendant’s privacy rights,” the court wrote. The court said that the evidence should have been suppressed at trial. It dismissed the charge of criminal possession and remanded for a new trial on criminal sale. Christopher Dunn, associate legal director of the New York Civil Liberties Union, said of the incident, “This is a particularly egregious example of what we believe is a significant problem of improper strip searches by the [New York Police Department].” An attorney for the Police Department declined to comment. The NYPD currently faces a federal class action lawsuit that alleges officers in Brooklyn routinely strip searched alleged misdemeanor offenders over five years. Two years ago, the city settled another civil rights suit over strip searches in Manhattan and Queens for $50 million. Justices Peter Tom, Joseph P. Sullivan, Ernst H. Rosenberger, Alfred D. Lerner and David Friedman concurred on the ruling. Peter Theis of the Center for Appellate Litigation represented Mitchell. Assistant District Attorney Alan Gadlin argued the appeal for the prosecution.

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