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SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED.

The First Department affirmed defendant’s conviction because he pled guilty before the court ruled on his suppression motion. Suppression therefore could not be considered on appeal. However, the court determined there was no justification for a strip search and warrantless body-cavity search:

… [T]here is merit to defendant’s claim that the police lacked the requisite reasonable suspicion to conduct a strip search. The record showed only that defendant was arrested during a buy-and-bust operation in a drug-prone location. Defendant was not observed reaching into his pants and no drugs were found on his clothing. “The police officers’ generalized knowledge that drug sellers often keep drugs in their buttocks, and the fact that no drugs were found in a search of defendant’s clothing [a]re insufficient” … .

There is also merit to defendant’s claim that the strip and visual body cavity search were not conducted in a reasonable manner and without a warrant or exigent circumstances. The record shows that defendant had his clothing torn from his body and was searched in the presence of four or five officers, belying the imperative to seek out “utmost privacy, and in the presence of only those members of the service reasonably necessary to conduct the search” to “achieve a balance between the privacy and personal dignity concerns of the [arrestee],” as set forth in the provisions of the NYPD Patrol Guide (Procedure No. 208.5[C][4] [2013]) concerning strip search procedures. The violence of the search — which resulted in physical injury to defendant requiring transfer to the hospital — was unnecessary particularly given that defendant was not being charged with a violent offense.

Further, the record indicates that defendant was very likely subjected to a warrantless [*2]manual cavity search of his rectum … . Potential dissemination or destruction of drugs was not a concern where defendant was already in a secure cell with five officers watching him … . People v Durham, 2016 NY Slip Op 08438, 1st Dept 12-15-16

CRIMINAL LAW (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/APPEALS (CRIMINAL LAW, SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/EVIDENCE (CRIMINAL LAW, SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/SEARCH AND SEIZURE (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/STRIP SEARCH (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/BODY CAVITY SEARCH (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)

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