DECISION & ORDER The defendant Bradley Augustin is charged with two counts of Criminal Possession of a Controlled Substance in the Third Degree in violation of §220.16(1) of the Penal Law, Criminal Possession of a Controlled Substance in the Fourth Degree in violation of §220.09(1) of the Penal Law, Resisting Arrest in violation of §205.30 of the Penal Law, and Unlawful Possession of Marijuana in violation of §221.05 of the Penal Law. By Decision and Order, dated August 7, 2018, the defendant’s motion was granted to the extent that a hearing was ordered pursuant to CPL §710.60(4) to determine the admissibility of physical evidence that was seized. A hearing was held on August 8, 2018. Appearing for the People was Assistant District Attorney Neal E. Eriksen. Appearing for the defendant was Raymond Sprowls, Esq. The People called two witnesses: Officers Rafael Santiago and Charles Cruz, both of the City of Newburgh Police Department. Body Camera Videos from each of the respective officers were received into evidence and played in open court. The defendant did not call any witnesses.On August 26, 2018, Mr. Sprowls submitted a letter memorandum detailing his arguments and citing relevant case law with relevant excerpts from the hearing transcript. On August 28, 2018, Mr. Eriksen submitted a letter memorandum detailing his arguments and citing relevant case law with the entire hearing transcript. Said submissions were considered by the Court.FINDINGS OF FACTOn May 8, 2018, at approximately 2:36 A.M. Officers Rafael Santiago and Charles Cruz were on routine patrol. They initiated a traffic stop on a black Volkswagen after observing that the motor vehicle did not have a license plate lamp illuminated. After the vehicle pulled over Officer Santiago approached the driver’s side of the vehicle, while Officer Cruz approached the passenger side. Defendant Bradley Augustin was the sole occupant of the motor vehicle. He was unable to produce a valid driver’s license. Officer Santiago detected an odor of marijuana. Officer Cruz observed a small, clear plastic bag containing a green leafy substance which, based upon his training and experience, he believed to be marijuana. The defendant was asked several times to exit the car. The defendant initially failed to comply with the officers’ request and inquired why the request was being made. When Officer Cruz approached the driver’s side of the vehicle, he opened the driver’s side door. When the defendant exited the vehicle, he took “two very fast paced steps” which led the officers to believe he was trying to flee. The officers forced the defendant against the vehicle.While the officers were securing the defendant, he was holding in his hands a cellular telephone and two additional plastic bags containing a green leafy substance which, based upon their training and experience, the officers believed to be marijuana. The officers were attempting to handcuff the defendant. The officers were having difficulty handcuffing the defendant. The defendant was moving his body and verbally stating that he was “not resisting.” However, while he was doing so, he was not complying with the officers’ commands. The defendant advised the officers that he was a youth advocate counselor and asked if this was necessary. The defendant lowered himself to the ground and the officers followed him, continuously yelling commands to him. Once the officers were able to handcuff the defendant, Officer Santiago attempted to perform a pat down, which he was unable to effectively do because the defendant kept moving his body around. The officers stood the defendant up and brought him to the hood of the car.Officer Cruz continued the pat down and felt a large bulge near the defendant’s leg. Officer Cruz reached into the front portion of defendant’s clothing, inside his pants and underwear, recovering a zip-lock bag containing uncooked rice and one hundred and sixty glassine envelopes of heroin. While Officer Cruz was reaching into the defendant’s pants, the defendant was yelling that the officer was touching “his dick.” Officer Cruz continued the pat down search and felt a smaller bulge in the rear of defendant’s pants, whereupon he asked another officer who was now present if that officer had gloves. That officer then reached in the defendant’s underwear and grabbed a bag that was inside the underwear, “just outside of his butt.” Officer Cruz was able to see this because another officer had pulled the defendant’s pants and underwear outwards, not down, in an effort to observe the small bulge. A sandwichtype bag with smaller bags containing cocaine was recovered. During the pat down search, the defendant’s genitalia never were exposed and his cavity never was exposed or breached.Since the vehicle was going to be impounded, an inventory search was conducted pursuant to the policies and procedures of the City of Newburgh Police Department. Said procedures were received into evidence. A plastic bag containing marijuana was recovered from the driver’s side door, and a sum of United States currency was recovered from the floor in front of the driver’s seat.LEGAL ANALYSIS/CONCLUSIONS OF LAWOfficers Cruz and Santiago observed that the defendant’s vehicle had an inadequate license plate lamp in violation of the Vehicle and Traffic Law, thus justifying stopping the defendant’s vehicle (People v. Robinson, 97 NY2d 341 [2001], and Whren v. United States , 517 US 806 [1996]). Upon approaching the vehicle, Officer Santiago detected an odor of marijuana, and Officer Cruz observed a clear bag containing what appeared to be marijuana on the front passenger seat. At that point, the officers gave a lawful order to the defendant to exit the vehicle (see, New York v. Class, 475 US 106 [1986]). The observation of marijuana in plain view, coupled with the odor or marijuana, provided probable cause to arrest the defendant (People v. Manganaro, 176 AD2d 354 [2nd Dept. 1991]).While courts have held that a search incident to arrest permits a full of search of the defendant, the People correctly acknowledge that such a search does not include a strip search or a cavity search (see, People v. More, 97 NY2d 209 [2002] and People v. Mitchell, 2 AD3d 145 [1st Dept. 2003]. A strip search occurs when officers remove the defendant’s clothing to conduct a visual examination of the defendant’s body (see, People v. Mothersell, 14 NY3d 358 [2010]). In this case, at no time was the defendant disrobed or had any articles of clothing pulled down, removed, nor were his genitals ever exposed. A manual body cavity search includes some degree of touching or probing of a body cavity that causes a physical instrusion beyond the body’s surface. (see People v. Hall, 10 NY3d 303 [2008]). In Hall, supra, the Court of Appeals defined and distinguished three types of bodily examinations:“There are three distinct and increasingly intrusive types of bodily examinations undertaken by law enforcement after certain arrests and it is critical to differentiate between these categories of searches. A ‘strip search’ requires the arrestee to disrobe so that a police officer can visually inspect the person’s body. The second type of examination — a ‘visual body cavity inspection’ — occurs when a police officer looks at the arrestee’s anal or genital cavities, usually by asking the arrestee to bend over; however, the officer does not touch the arrestee’s body cavity. In contrast, a ‘manual body cavity search’ includes some degree of touching or probing of a body cavity that cause a physical intrusion beyond the body’s surface” Id. at 306-07 (emphasis added).The People claim the scope of the search incident to the lawful arrest of the defendant was reasonable and lawful under these circumstances.In analyzing the scope of a search incident to arrest, the court in People v. Jones, 3 Misc.3d 481 (Supreme Court, Bronx County 2004) reviewed US v. Bazy, 1994 WL 5393300. The Bazy case has a similar fact pattern to the instant case. When officers felt something in Bazy’s co-defendant’s underwear, they unbuckled his pants, and stretched the clothes away from the defendant’s waist. Trooper Brockman, wearing plastic gloves, reached into the defendant’s underwear and removed a block of crack cocaine that was located between the defendant’s underwear and his scrotum. The Court determined that the defendant’s clothing was not removed, he was not exposed to the public, and two exigent circumstances existed: (1) the destruction of evidence, and (2) a health risk to the defendant if the defendant attempted to push the contraband internally causing the packaging to break. In the instant case defendant Augustin was non-compliant with the officers’ commands and pat down in both his actions and words. His words tried to convince the officers to stop the search while his actions and movements clearly were attempting to impede the search. Based upon what Officer Cruz felt during the pat down, he knew that the defendant was secreting items within his clothing. This knowledge coupled with the marijuana found in plain view gave rise to probable cause to believe that the items underneath the defendant’s clothing were contraband. The police acted reasonably in conducting the search incident to arrest to secure the items so that they were not discarded or destroyed, and to prevent the defendant from attempting to secrete the drugs in his rectum, which could be hazardous to his health and maybe even fatal.Under the facts/circumstances of this case, the testimony of Officers Santiago and Cruz show that the defendant was lawfully stopped for a traffic infraction, and lawfully arrested for possessing marijuana. Furthermore, the officers conducted a search incident to arrest, which was reasonable under the circumstances, and seized heroin and cocaine from within the defendant’s clothing. Said search did not constitute a strip search or a cavity search, and was a search incident to a lawful arrest. The marijuana and U.S. currency were recovered pursuant to a lawful inventory search. Accordingly, the defendant’s motions to suppress must be denied.The foregoing constitutes the Decision and Order of this Court.So Ordered.Dated: September 18, 2018Goshen, New York
