People v. Hall

• Decision Date: 25 March 2008
• Docket Number: 29.
• Citation: 10 N.Y.3d 303,886 N.E.2d 162
• Parties: The PEOPLE of the State of New York, Respondent, v. Azim HALL, Appellant.
• Court: New York Court of Appeals Court of Appeals

886 N.E.2d 162

10 N.Y.3d 303

The PEOPLE of the State of New York, Respondent, v. Azim HALL, Appellant.

29.

Court of Appeals of New York.

March 25, 2008.

Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Eric Rosen and Vincent Rivellese of counsel), for respondent.

OPINION OF THE COURT

GRAFFEO, J.

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 approached 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 some 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 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (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, 86 S.Ct. 1826). 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, 86 S.Ct. 1826).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, post-Schmerber 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 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the United States Supreme Court upheld the blanket policy of a pretrial detention center that 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, 99 S.Ct. 1861). 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, 99 S.Ct. 1861).

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 U.S. 640, 646 n. 2, 103 S.Ct. 2605, 77 L.Ed.2d 65 [1983]). Nevertheless, it is clear that reasonableness is the "ultimate touchstone of the Fourth Amendment" (Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 [2006]; see Wolfish, 441 U.S. at 558, 99 S.Ct. 1861 [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 F.3d 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 F.2d 796, 802 [2d Cir1986], cert. denied sub nom. County of Monroe v. Weber, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 [1987]; see e.g. Campbell v. Miller, 499 F.3d 711, 718 [7th Cir.2007]; Stewart v. Lubbock County, Tex., 767 F.2d 153, 156-157 [5th Cir. 1985], cert. denied 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 [1986]; Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 [7th Cir.1983]; Sarnicola v. County of Westchester, 229 F Supp 2d 259, 269-271 [S.D.N.Y.2002]; see also Blackburn v. Snow, 771 F.2d at 562; but see Fuller v. M.G. Jewelry, 950 F.2d 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...