People v. Hall

OPINION OF THE COURT

In this case, we must consider whether it is constitutionally permissible for police to subject a person arrested for a drug sale to a visual body inspection followed by a body cavity search without first obtaining a warrant. We conclude that a visual body inspection may be conducted if the police have a factual basis supporting a reasonable suspicion that the arrestee has evidence concealed inside a body cavity and the search is conducted in a reasonable manner. If the visual inspection reveals the presence of a suspicious object, the police must obtain a warrant authorizing the object’s removal unless there are exigent circumstances.1

I

During the evening of February 10, 2005, a team of police officers conducted a narcotics interdiction operation in Manhattan. Sergeant Burnes, a 20-year police veteran with extensive drug arrest experience, was stationed on the roof of a building observing individuals on the street below through binoculars. Burnes saw a man named Meyers that he recognized from the neighborhood standing outside a bodega. Two individuals approached Meyers, spoke with him and handed him money. Meyers then walked over to defendant, conversed briefly with him and gave him the cash.

Defendant went into the bodega while Meyers stood near the front door. After being inside the store for about three minutes, defendant reappeared and handed something to Meyers. Meyers *306approached the individuals who had given him the money and held out his hand to them. Sergeant Burnes observed two small, white objects in Meyers’ hand that appeared to be crack cocaine. Each of the men took one piece and departed. A short time later, defendant and Meyers walked away from the bodega, heading in different directions. Burnes then contacted officer Spiegel on the street using radio communication and eventually defendant and Meyers were taken into police custody.

Defendant was transported to a police station where Spiegel searched his clothing but no drugs were found. Spiegel placed defendant in a private detention cell and asked him to remove his clothing. Burnes entered the cell and defendant was ordered to bend over or squat, at which point Spiegel and Burnes observed a string or piece of plastic hanging out of defendant’s rectum. Believing that the string was attached to a package of drugs hidden inside defendant’s body, Burnes ordered defendant to remove the object. When defendant refused, Spiegel proceeded to hold defendant while Burnes pulled on the string and removed a plastic bag that was found to contain crack cocaine.

Defendant was indicted for criminal possession of a controlled substance in the third and fifth degrees. Prior to trial, he moved to suppress the drugs taken from his body, claiming that the police were required to obtain a warrant before examining his body cavity. Supreme Court granted the motion and dismissed the indictment. The Appellate Division reversed, concluding that the visual inspection of defendant’s body cavity was permissible because the police had reasonable suspicion to believe that defendant had narcotics hidden inside his body and that, once the string was discovered, the police were allowed to immediately retrieve the drugs without first obtaining a warrant. A Judge of this Court granted leave.

II

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 *307some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body’s surface.2

The preeminent decision examining the constitutional dimensions of searches that involve police intrusion into a person’s body is Schmerber v California (384 US 757 [1966]). In that case, a police officer had a physician at a hospital draw a blood sample to determine the level of alcohol that was in the blood of an individual arrested after a motor vehicle accident. Recognizing that “interests in human dignity and privacy” arise whenever the police need to enter a person’s body to secure evidence, the United States Supreme Court concluded that a lawful arrest alone does not justify police intrusion into a person’s body (id. at 769-770). Rather, there must be “a clear indication that . . . [relevant] evidence will be found” inside an arrestee’s body and a search warrant authorizing the seizure of evidence must be obtained unless an emergency situation exists (id. at 770).3 In Schmerber, the Supreme Court determined that the blood evidence was legally obtained and admissible because the extraction was performed in a reasonable manner under exigent circumstances.4

Although Schmerber did not address the constitutionality of less intrusive visual inspections of an arrestee’s body, postSchmerber precedent demonstrates considerable judicial consensus concluding that visual body inspections are constitutionally distinct from searches that require the police to intrude beyond the surface of a person’s body and that the two types of searches are therefore subject to different legal standards. In Bell v Wolfish (441 US 520 [1979]), the United States Supreme Court upheld the blanket policy of a pretrial detention center *308that conducted visual body cavity examinations of detainees following visitations with persons from outside the facility. In assessing the legality of this practice under the Fourth Amendment, the Supreme Court explained that various factors should be considered, including “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted” (id. at 559). Weighing these interests, along with the fact that the smuggling of contraband was a frequent problem posing significant security concerns for detention centers, the Court held that such visual cavity searches of pretrial detainees could be conducted on less than probable cause grounds so long as they were conducted in a reasonable manner (id. at 559-560).

The Supreme Court has yet to address the question of whether warrantless strip searches of persons arrested—as opposed to pretrial detainees—can be performed in a manner that satisfies constitutional requirements (see Illinois v Lafayette, 462 US 640, 646 n 2 [1983]). Nevertheless, it is clear that reasonableness is the “ultimate touchstone of the Fourth Amendment” (Brigham City, Utah v Stuart, 547 US 398, 403 [2006]; see Wolfish, 441 US at 558 [the “Fourth Amendment prohibits only unreasonable searches”]). Our task, then, is to determine whether it is reasonable to draw a constitutional distinction between a visual inspection of an arrestee’s body (which requires no touching of the person’s body whatsoever) and a manual body cavity search (which necessarily results in an intrusion beyond the body’s surface and possibly the removal of an object or the insertion of an instrument into an orifice).

The majority of appellate courts to consider the propriety of visual inspections have applied the reasoning of Wolfish and recognized that the difference in the degree of intrusiveness between visual and manual body cavity searches provides ample justification for applying a standard less stringent than Schmerber to visual cavity inspections of arrestees. Thus, it has been held that a visual body cavity search of an arrestee may be justified by a reasonable suspicion that the arrestee is concealing a weapon or contraband (see Swain v Spinney, 117 F3d 1, 5 [1st Cir 1997]), which could be supported by consideration of “the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest” (Weber v Dell, 804 F2d 796, 802 [2d Cir 1986], cert denied sub nom. County of Monroe v Weber, 483 US 1020 [1987]; see e.g. Campbell v Miller, 499 F3d 711, 718 [7th Cir 2007]; Stewart v Lubbock County, Tex., 767 *309F2d 153, 156-157 [5th Cir 1985], cert denied 475 US 1066 [1986]; Mary Beth G. v City of Chicago, 723 F2d 1263, 1273 [7th Cir 1983]; Sarnicola v County of Westchester, 229 F Supp 2d 259, 269-271 [SD NY 2002]; see also Blackburn v Snow, 771 F2d at 562; but see Fuller v M.G. Jewelry, 950 F2d 1437, 1448-1449 [9th Cir 1991]).

These decisions stand for the principle that the Fourth Amendment does not prohibit a visual cavity inspection if the police have at least a reasonable suspicion to believe that contraband, evidence or a weapon is hidden inside the arrestee’s body. As the balancing test in Wolfish suggests, the “reasonable suspicion” standard must take into account the nature of the crime charged, the circumstances of the arrest and the scope of the particular intrusion. Unlike manual body cavity searches, strip searches and visual cavity inspections do not create a risk of physical pain or injury to arrestees. 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.

The concurrence maintains that Wolfish is not particularly relevant to the assessment of whether reasonable suspicion should govern visual cavity inspections because it focused on the need to maintain institutional security (see concurring op at 316-317). It is true that Wolfish addressed security concerns that are not present in this case. But this alone does not render the rationale and analytical framework of Wolfish irrelevant. Wolfish recognized that there is a legitimate interest in preventing drugs from being distributed in a secure law enforcement facility (see Wolfish, 441 US at 559)—which a police station surely is—and the Supreme Court has repeatedly reiterated that there is nothing unreasonable about allowing the police to conduct a search of an arrestee incident to an arrest for the purpose of preserving evidence (see e.g. Knowles v Iowa, 525 US 113, 116 [1998]; United States v Robinson, 414 US 218, 234-235 [1973]).5

*310Schmerber, however, dictates that a more stringent standard be applied to a physical search of an arrestee’s body cavity. Our most recent decision addressing a search into a person’s body is People v More (97 NY2d 209 [2002]). In that case, the police entered a residence and found the defendant sitting near drugs and drug paraphernalia. They took him into a room in the apartment, had him remove his clothing and made him bend at the waist to check whether he had drugs hidden between his buttocks. When the police saw a plastic bag protruding from the defendant’s rectum, they forcibly removed it.6

We recognized that a search of this nature was “at least as intrusive as [the] blood test procedures” in Schmerber (id. at 213). As a result, the actions of the police were constitutionally permissible only if the People could satisfy the clear indication and exigent circumstance requirements of Schmerber. We determined that the record before us was “devoid of any evidence from which an officer ‘might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant’ posed a threat to the officer’s personal safety or of the destruction of the evidence” (id. at 214, quoting Schmerber, 384 US at 770). Because there were no exigent circumstances supporting the warrantless intrusion into the suspect’s body, we held that the removal of the object from the defendant’s rectum without prior judicial authorization violated the Fourth Amendment (see More, 97 NY2d at 214).7

Summarizing the relevant constitutional precedent, it is clear that a strip search must be founded on a reasonable *311suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to the next level required for a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity and the visual inspection must be conducted reasonably. 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. Under our decision in More, the removal of an object protruding from a body cavity, regardless of whether any insertion into the body cavity is necessary, is subject to the Schmerber rule and cannot be accomplished without a warrant unless exigent circumstances reasonably prevent the police from seeking prior judicial authorization.

It is important to emphasize that visual cavity inspections and manual body cavity searches cannot be routinely undertaken as incident to all drug arrests or permitted under a police department’s blanket policy that subjects persons suspected of certain crimes to these procedures. There must be particular, individualized facts known to the police that justify subjecting an arrestee to these procedures (see generally People v McIntosh, 96 NY2d 521, 525 [2001]). Our precedent on this point is unequivocal: the police are required to have “specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion” (People v Cantor, 36 NY2d 106, 113 [1975]), although they are allowed to “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person” (United States v Arvizu, 534 US 266, 273 [2002] [internal quotation marks omitted]). In addition, the reasonableness of the manner in which the search is conducted should be evaluated by reference to where, how and by whom the inspection occurred (e.g., usually in a private location,8 by a person of the same gender and without causing the arrestee to suffer further undue humiliation).

*312Ill

Applying the reasonable suspicion standard to the facts of this case, the record supports the conclusion of the Appellate Division that the strip search and visual cavity inspection of defendant’s body were constitutionally valid because the particular facts, viewed objectively and in their totality, provided the police with reasonable suspicion that defendant had drugs secreted underneath his clothing and possibly in his body. Defendant had been observed engaging in a hand-to-hand sale of two small quantities of crack cocaine (see Campbell v Miller, 499 F3d at 718 [the police may consider the nature of the crime the defendant committed]). The police saw that, in order to complete the sale, defendant retreated into a building where he lingered for up to three minutes, which suggested that the narcotics defendant then produced outside the bodega were concealed in a place that was not readily accessible. The primary officer also testified that, in his experience (which involved over 1,000 drug arrests), a “good majority” of the persons arrested for narcotic offenses within a four-block radius of where defendant made his sale were found to have drugs hidden between their buttocks.

Considering all of these circumstances, in conjunction with the fact that the police found no drugs in defendant’s possession after his arrest or the strip search, the police at that point had reasonable suspicion to believe that defendant had narcotics hidden inside his body. Furthermore, the primary officer participated in the visual cavity inspection, thereby establishing that the officers who conducted the inspection had sufficient information to support the reasonable suspicion that defendant had drugs concealed in his body. Finally, the inspection was reasonable in scope and manner because it was conducted privately in a cell, without undue force and by officers of the same gender as defendant. Thus, the police conduct in this case supports the Appellate Division’s conclusion that the proper constitutional standard for a legal visual body inspection was satisfied.

Once the officers saw the string-like object suspiciously hanging from defendant’s rectum, their reasonable suspicion was elevated to probable cause to believe that contraband was concealed in defendant’s body. Yet in More, we stated that probable cause alone was not enough to permit the removal of an object protruding from an arrestee’s rectum. Instead, we stressed that Schmerber requires the police to obtain a warrant authorizing the removal of the plastic bag in the absence of exigent circum*313stances justifying an immediate seizure of the item. The suppression record in this case provides no basis for a finding of exigent circumstances since the police officers who testified at the hearing indicated that the purpose of the search was to secure evidence and there was no testimony that the drugs were in imminent danger of being destroyed, disseminated or lost, or that defendant was in medical distress. Thus, when the police physically removed the object that was attached to the string without first obtaining a warrant, they conducted an unreasonable manual body cavity search in violation of the Fourth Amendment. Under these circumstances, More mandates that the recovered drugs be suppressed.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted to the extent of suppressing the drugs recovered and the indictment dismissed.