ALBANY – Absent exigent circumstances, police must obtain a warrant before removing suspicious objects from the body cavities of suspects, a divided Court of Appeals ruled yesterday.
Although the dissenters on the 4-3 panel warned of creating burdensome new requirements for drug investigators, the majority decided that the U.S. Supreme Court’s finding in Schmerber v. California, 384 U.S. 757 (1966), coupled with its own holding in People v. More, 97 NY2d 209 (2002), demanded additional Fourth Amendment protections for suspects subject to manual cavity searches.
“Because a manual cavity search is more intrusive and gives rise to heightened privacy and health concerns, when weighed against the legitimate needs of law enforcement, we believe it should be subject to a stricter legal standard,” Judge Victoria A. Graffeo wrote for the majority in People v. Hall, 29.
Yesterday’s Court of Appeals decisions begin on page 26 of the print edition of today’s Law Journal.
In the course of its decision, the Court ruled 5-2 that no warrant is necessary for police to conduct a visual cavity search, provided authorities have a “reasonable suspicion” that a suspect has contraband hidden inside a cavity and the visual search is done “reasonably.”
However, the Court found that authorities must obtain a warrant to remove anything discovered in such a search.
“If an object is visually detected or other information provides probable cause that an object is hidden inside the arrestee’s body, Schmerber dictates that a warrant be obtained before conducting a body cavity search unless an emergency situation exists,” Judge Graffeo wrote.
The majority cautioned that visual and manual body cavity searches should not become routine for “all drug arrests or permitted under a police department’s blanket policy that subjects persons suspected of certain crimes to these procedures.”
And, Judge Graffeo wrote, the Court would condemn visual cavity searches if done publicly except in the direst of circumstances, such as when a suspect’s life is in danger. Otherwise, the Court would regard such public searches as “abusive, shameful and unconstitutional,” the judge wrote.
In its ruling, the Court dismissed the drug possession indictment of Azim Hall, who police say they spotted supplying a dealer with crack cocaine in near 128th Street and St. Nicholas Terrace in Manhattan.
Following a strip search at a stationhouse, officers ordered Mr. Hall to squat and conducted a visual cavity search. It was then that officers said they saw a string dangling from Mr. Hall’s rectum.
After he refused to remove the string, two officers forcibly did so. They testified that they found crack cocaine wrapped in plastic.
Manhattan Supreme Court Justice Bruce Allen ordered the cocaine suppressed, but the Appellate Division, First Department, reversed in People v. Hall, 39 AD3d 100 (2007). The appeals court described the search as “degrading,” but also held that it was “reasonable” and “justified” by the officers’ knowledge of Mr. Hall’s apparent drug activities ( NYLJ, Feb. 7, 2007).
One of Mr. Hall’s arresting officers testified that he had participated in the arrests of more than 1,000 drug suspects in the area where Mr. Hall was picked up and a “good majority” of the suspects were found to have drugs hidden between their buttocks, the Court noted yesterday.
Based on their suspicions, police reasonably conducted strip and visual cavity searches of Mr. Hall, the Court decided. But they should have stopped and asked for a warrant when they discovered the string in Mr. Hall’s rectum, it held.
In a dissent, Judge Robert S. Smith called the securing of a warrant a “pointless exercise” that he does not believe is required by either the state or federal constitutions.
“I do not see why it is unreasonable for officers to take, with minimal force, what they have already lawfully seen,” Judge Smith wrote. “The majority’s contrary holding will, I fear, add unnecessarily to the many problems faced by police officers trying to make headway against street drug dealers.”
In a concurring opinion, Judge Carmen Beauchamp Ciparick agreed with the majority that the warrantless body cavity search of Mr. Hall was unconstitutional under More and Schmerber. But she wrote that visual cavity searches are “intrusive, degrading and humiliating” and should also require a warrant based on probable cause.
“The fundamental constitutional interests of human dignity and bodily integrity are not only implicated when intimate bodily areas are touched,” Judge Ciparick wrote. “A visual intrusion into a body cavity is an ‘intrusion beyond the body’s surface’ and thus, the Schmerber test must apply to such searches as well as manual body cavity searches.”
Chief Judge Judith S. Kaye joined in Judge Graffeo’s ruling. Judge Theodore T. Jones Jr. joined in Judge Ciparick’s concurring opinion. Those four judges were in the majority on the question of suppressing the drug evidence against Mr. Hall and dismissing his indictment because of the warrantless body cavity search.
Judges Susan Phillips Read and Eugene F. Pigott Jr. joined in Judge Smith’s dissent.
Chief Judge Kaye and Judges Graffeo, Read, Pigott and Smith were in the 5-2 majority on the issue of a warrant not being needed for a visual cavity search.
Barbara Zolot of the Center for Appellate Litigation represented Mr. Hall. She argued before the Court that police should secure warrants for either visual or manual body cavity searches.
“We’re pleased that our client prevailed and gratified that the Court found a warrant is required before police can conduct a manual body cavity search of new arrestees,” she said yesterday.
Assistant Manhattan District Attorney Eric Rosen argued for the prosecution.
Mark Dwyer, chief of appeals in the Manhattan District Attorney’s Office, said the ruling will slow down the process of searching drug suspects.
“We agree with the dissent that it would simply be a waste of time and resources to oblige police to obtain a warrant before conducting a very simple procedure, which does not involve touching a defendant’s person,” Mr. Dwyer said yesterday.
Manhattan prosecutors were weighing the possibility of appealing yesterday’s ruling to the U.S. Supreme Court, Mr. Dwyer said.
Barry Kamins of Flanhaft Levy Kamins Hirsch & Rendeiro said in an interview that yesterday’s ruling is a welcome one for those defending suspects against intrusive police searches.
“The Court has brought clarity to an area of search-and-seizure law that up to now has been less than clear,” said Mr. Kamins, who was not involved in the Hall case. “It has clearly defined the various types of bodily examinations that are conducted by law enforcement and has set forth the heightened criteria that must be met before cavity searches can be conducted.”
Mr. Kamins conceded that searching suspects may be delayed somewhat by the warrant requirement.
“I think law enforcement will adjust,” he said.
- Joel Stashenko can be reached at email@example.com.