| People v Clayton |
| 2008 NY Slip Op 09614 [57 AD3d 557] |
| December 2, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Sean D.Clayton, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.),rendered February 9, 2006, convicting him of criminal possession of a controlled substance in the fifthdegree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, aftera hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch of hisomnibus motion which was to suppress physical evidence recovered from his person at the policestation after he was arrested during a vehicle stop. The credibility determinations of a hearing court areentitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record(see People v Henderson, 26 AD3d444, 445 [2006]; People v Santiago,18 AD3d 675, 675-676 [2005]). According to the testimony presented at the suppressionhearing, which the hearing court fully credited, City of Poughkeepsie police officers stopped thedefendant's vehicle after observing several traffic violations and were advised by the defendant, and bypolice dispatch over the radio, that the defendant's driver's license was suspended. Based on thisinformation, the officers had probable cause to arrest the defendant (see Vehicle and TrafficLaw § 511 [1]; People v Davis,32 AD3d 445 [2006]; People v Mitchell, 303 AD2d 422, 423 [2003]; [*2]People v Buckmon, 293 AD2d 623, 623-624 [2002]; People vTavarez, 277 AD2d 260 [2000]; People v Lester, 232 AD2d 427, 428 [1996]), and theywere authorized to frisk him incident to that lawful arrest (see People v Troiano, 35 NY2d476, 478 [1974]).
Further, the record supports the hearing court's determination that the police officers were justifiedin conducting a visual body cavity search of the defendant once he had been transported to the policestation and that this search was conducted in a reasonable manner. "[T]he Fourth Amendment does notprohibit a visual cavity inspection if the police have at least a reasonable suspicion to believe thatcontraband, evidence or a weapon is hidden inside the arrestee's body" (People v Hall, 10 NY3d 303, 309[2008], cert denied 555 US —, 129 S Ct 159 [2008]). To perform a visual body cavitysearch, the police must have a "specific, articulable factual basis supporting a reasonable suspicion tobelieve the arrestee secreted evidence inside a body cavity," although they are allowed to "draw ontheir own experience and specialized training to make inferences from and deductions about thecumulative information available to them that might well elude an untrained person" (id. at 311[internal quotation marks omitted]). A visual cavity search must be conducted reasonably, and "thereasonableness of the manner in which the search is conducted should be evaluated by reference towhere, how and by whom the inspection occurred (e.g., usually in a private location, by aperson of the same gender and without causing the arrestee to suffer further undue humiliation)"(id.).
At the suppression hearing, one of the police officers involved in the vehicle stop and thesubsequent search at the police station (hereinafter the officer) testified that shortly before the stop, hehad observed the defendant at an "active drug location" and that the defendant's conduct had beenconsistent with prior narcotics activity observed by the police at that location. When the officer friskedthe defendant during the vehicle stop, he detected a small hard object under the defendant's clothingnear his tail bone which the defendant refused to identify. Based on the officer's experience and training,he suspected that this object was narcotics. Additionally, the officer testified that the defendant had ahistory of secreting contraband in his rectum and that when he was transported to the police station, hehad been "wiggling around" in the police car and placing his hands in the area where the officer had feltthe hard object during the frisk. This testimony established that the police had a specific, articulablefactual basis supporting a reasonable suspicion to believe that the defendant had secreted evidenceinside a body cavity which justified the visual cavity search (id. at 312). Moreover, the visualcavity search was conducted in a reasonable manner because it was performed in an empty cell blockby officers of the same gender as the defendant (id.).
Finally, the defendant's contention that the police officers unlawfully seized evidence which theyobserved during the visual body cavity search is without merit. "[T]he removal of an object protrudingfrom a body cavity, regardless of whether any insertion into the body cavity is necessary. . . cannot be accomplished without a warrant unless exigent circumstances reasonablyprevent the police from seeking prior judicial authorization" (id. at 311; see People v More,97 NY2d 209, 212-214 [2002]). The suppression hearing testimony established that, uponperforming the visual body cavity search, police officers observed a plastic bag containing a whitesubstance located between the cheeks of the defendant's buttocks but not inserted into a body cavity.Accordingly, the police were not required to obtain a warrant before removing the item from the outersurface of the defendant's body (cf. People v Hall, 10 NY3d at 312-313; People v More,97 NY2d at 214).[*3]
Accordingly, the hearing court properly denied that branch ofthe defendant's omnibus motion which was to suppress physical evidence. Ritter, J.P., Florio, Millerand Dillon, JJ., concur.