People v. Gonzalez
| Decision Date | 24 December 2008 |
| Docket Number | 101223. |
| Citation | 57 A.D.3d 1220,870 N.Y.S.2d 529,2008 NY Slip Op 10065 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JONATHAN GONZALEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Schenectady County (Catena, J.), rendered January 31, 2007, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.
MERCURE, J.P.
Defendant was arrested after he approached a confidential informant, who was fitted with a wire as part of an investigation being conducted by the City of Schenectady Police Department, and asked, He was transported to the police station, where he was required to remove his clothes. He was then repeatedly ordered to bend over and spread the cheeks of his buttocks. Defendant eventually complied and police investigators spotted a small plastic bag, later determined to contain cocaine, protruding out of his rectum.
Defendant was charged in an indictment with criminal possession of a controlled substance in the third degree, attempted criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. Following a suppression hearing, County Court (Drago, J.) concluded that the drugs discovered during the visual body cavity search of defendant were admissible. The matter proceeded to trial, at the close of which defendant was convicted of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. He was subsequently sentenced to an aggregate term of 2½ years in prison to be followed by two years of postrelease supervision. Defendant appeals, and we now reverse.
"[A] strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing" and, "[t]o 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" (People v Hall, 10 NY3d 303, 310-311 [2008], cert denied 55 US ___, 129 S Ct 159 [2008]). Particularly relevant here, "visual cavity inspections . . . cannot be routinely undertaken as incident to all drug arrests...
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