People v. Holton

160 A.D.3d 1288

76 N.Y.S.3d 248

The PEOPLE of the State of New York, Respondent,

v.Eddie HOLTON, Appellant.

107816

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 11, 2018

Decided and Entered: April 26, 2018

Philip K. Grommet, Vestal, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Devine and Clark, JJ.

MEMORANDUM AND ORDER

Lynch, J.

In November 2013, defendant was being held as a pretrial detainee at the Broome County Correctional Facility, when correction officers conducted what was described as a "shakedown" of his housing unit. During the course of this event, defendant was taken to his cell where an ensuing strip search resulted in the recovery of a small packet of cocaine. Defendant was charged in a two-count indictment with the crimes of promoting prison contraband in the first degree and criminal possession of a controlled substance in the seventh degree. Following the denial of his motion to suppress the cocaine, defendant pleaded guilty to the contraband charge in full satisfaction of the indictment. He was sentenced, as a second felony offender, to a prison term of 2 to 4 years. Defendant now appeals.

12 On this appeal, defendant takes no issue with the shakedown procedure per se. Instead, his sole contention is that correction officers recovered the cocaine through an unlawful manual body cavity search in violation of his rights under the Fourth Amendment. "[T]he defendant carries the burden of proof when he [or she] challenges the legality of a search and seizure, but the People have the burden of going forward to show the legality of the police conduct in the first instance" (People v. Whitehurst,25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 [1969] [internal citation and emphasis omitted]; seeCPL 710.60 ; People v. Wesley,73 N.Y.2d 351, 358, 540 N.Y.S.2d 757, 538 N.E.2d 76 [1989] ).

Here, the record shows that, during the course of a strip search, defendant was directed to stand against a wall in his cell and squat. Adam Valls, a correction officer, testified that, at that point, he observed "a white item protruding from between defendant's [buttocks]." Valls explained that, when he saw the item—which was "a white wrapped item like something that was a container"—he asked defendant to spread his buttocks. When defendant failed to comply, he was forcibly placed face down on his bunk and handcuffed. Valls then saw the dime-sized white item protruding from between defendant's buttocks; he touched the item "and it moved so [he] took it." When asked whether the item felt loose when he touched it, Valls responded, "It came loose." Valls denied that he touched defendant, but explained that he "dislodged [the item] from [defendant's buttocks]." William Brown, Valls' supervisor, also testified that the item, which he recalled was about the size of a quarter, was "laying between defendant's buttocks" and that he directed Valls to "flick it out." Defendant's version was decidedly different. Defendant testified that Valls stuck his finger into defendant's rectum and pulled the object out. After crediting the testimony of Valls and Brown, County Court denied defendant's motion to suppress the physical evidence. We defer to that credibility determination (seePeople v. Prochilo,41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).

3456 In People v. Hall,10 N.Y.3d 303, 856 N.Y.S.2d 540, 886 N.E.2d 162 (2008), cert denied555 U.S. 938, 129 S.Ct. 159, 172 L.Ed.2d 241 (2008), the Court of Appeals differentiated law enforcement's use of the "three distinct and increasingly intrusive types of bodily examinations"—the strip search, visual body cavity inspection and manual body cavity search (id.at 306, 856 N.Y.S.2d 540, 886 N.E.2d 162 ; seePeople v. Nicholas,125 A.D.3d 1191, 1192, 4 N.Y.S.3d 637 [2015] ). Relevant here, a visual body cavity inspection involves the inspection of the subject's anal or genital areas without any physical contact by the officer and, in contrast, a manual body cavity search "includes some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body's surface" (People v. Hall,10 N.Y.3d at 306–307, 856 N.Y.S.2d 540, 886 N.E.2d 162 ; seeHarris v. Miller,818 F.3d 49, 58 [2d Cir.2016] ). Although the People maintain that defendant was not subjected to a manual body cavity search, we disagree. Indisputably, the item did not fall from defendant's body of its own accord during the strip search or the ensuing struggle, and Valls testified that the object had to be "dislodged" from between defendant's buttocks. Because a manual body cavity search is "the removal of an object protruding from a body cavity, regardless of whether any insertion into the body cavity is necessary," we find that defendant was subjected to such a search (People v. Hall,10 N.Y.3d at 311, 856 N.Y.S.2d 540, 886 N.E.2d 162 ; seePeople v. Nicholas,125 A.D.3d at 1192, 4 N.Y.S.3d 637 ).

78910 The further question is whether the correction officers needed a search warrant to conduct a manual body cavity search in a correctional facility setting where there is clearly a significant interest in maintaining the security and safety of the facility (seeFlorence v. Board of Chosen Freeholders of County of Burlington,566 U.S. 318, 322, 132 S.Ct. 1510, 182 L.Ed.2d 566 [2012] ; Bell v. Wolfish,441 U.S. 520, 546–547, 99 S.Ct. 1861, 60 L.Ed.2d 447 [1979] ; People v. Brown,154 A.D.3d 435, 436, 62 N.Y.S.3d 103 [2017],lv denied30 N.Y.3d 1058, 71 N.Y.S.3d 8, 94 N.E.3d 490 [2017] ; People v. McKanney,56 A.D.3d 1049, 1050, 867 N.Y.S.2d 578 [2008], lv denied12 N.Y.3d 760, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ). Importantly, this significant safety concern is not compromised by recognizing "that inmates retain a limited right to bodily privacy under the Fourth Amendment" (Harris v. Miller,818 F.3d at 57 ; seeCovino v. Patrissi,967 F.2d 73, 78 [2d Cir.1992] ). Where, as here, a challenge is made to an isolated search, "courts typically apply the standard set forth in Bell v. Wolfish( [supra] )" (Harris v. Miller,818 F.3d at 58 ). That "test of reasonableness," which the Supreme Court of the United States applied to pretrial detainees in Bell,"requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which is it is conducted" (Bell v. Wolfish,441 U.S. at 559, 99 S.Ct. 1861 [citations omitted] ). Here, defendant does not challenge the record justification for the visual body cavity inspection, which was conducted by correction officers of the same gender in the privacy of his cell. The officers utilized force to place defendant on his bunk, but only after he failed to comply with their directives. The discovery of contraband was "highly relevant to the reasonableness" of the search (Harris v. Miller,818 F.3d at 62 ), and, once the officers observed the protruding item, they had probable cause to believe that defendant had concealed contraband (seePeople v. Hall,10 N.Y.3d at 312–313, 856 N.Y.S.2d 540, 886 N.E.2d 162 ). The pivotal question is what steps the officers were entitled to take at that juncture under Bell.

1112 The Court of Appeals has explained that "[t]he preeminent decision examining the constitutional dimensions of searches that involve police intrusion into a person's body is Schmerber v. California,384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)" (People v. Hall,10 N.Y.3d at 307, 856 N.Y.S.2d 540, 886 N.E.2d 162 ). Speaking to the validity of a body cavity search incident to arrest conducted at a police station, the Court explained that "it is evident that the location of a search is not the determinative factor under Schmerber because that decision prohibits all warrantless intrusions into an arrestee's body if there is no probable cause and exigent circumstances established, regardless of where the search occurs" (id.at 310 n. 7, 856 N.Y.S.2d 540, 886 N.E.2d 162 ; but seePeople v. More,97 N.Y.2d 209, 214 n, 738 N.Y.S.2d 667, 764 N.E.2d 967 [2002] ). This stricter legal standard applies "[b]ecause a manual body cavity search is more intrusive and gives rise to heightened privacy and health concerns" (People v. Hall,10 N.Y.3d at 309, 856 N.Y.S.2d 540, 886 N.E.2d 162 ).

13 Here, there was probable cause, but no showing or claim of an emergency (seePeople v. Hall,10 N.Y.3d at 312–313, 856 N.Y.S.2d 540, 886 N.E.2d 162 ). Considering that defendant was lying face down, naked and handcuffed, it is evident that the officers could keep him under full surveillance without any concern that the wrapped drugs would be absorbed into his body while efforts were made to procure a warrant (seePeople v. More,97 N.Y.2d at 214, 738 N.Y.S.2d 667, 764 N.E.2d 967 ). Nor was any attempt made to seek the assistance of medical personnel to secure the contraband in a safe, hygienic manner (seeHarris v. Miller,818 F.3d at 59 ). Also, the record is unclear as to whether Valls was wearing gloves. Under the second Bell factor, the manner in which this search was conducted was not reasonable. Given the above, we conclude that the search was conducted in violation of the Fourth Amendment and that the recovered drugs should have been suppressed. Accordingly, the judgment of conviction must be reversed, defendant's motion to suppress the contraband granted and the indictment dismissed.

Garry, P.J., concurs.

Clark, J. (concurring).

I agree with the majority that the manual body cavity search to which defendant was subjected violated his Fourth Amendment right to be free from an unreasonable bodily intrusion and, thus, that the recovered contraband should have been suppressed. However, I write separately because I reach this result by a different path.

Initially, like the...