| People v Gonzalez |
| 2008 NY Slip Op 10065 [57 AD3d 1220] |
| December 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jonathan Gonzalez,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Matthew J. Sypniewski of counsel), forrespondent.
Mercure, J.P. 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 ofa controlled substance in the third degree and criminal possession of a controlled substance in the fourthdegree.
Defendant was arrested after he approached a confidential informant, who was fitted with a wire aspart of an investigation being conducted by the City of Schenectady Police Department, and asked,"what do you need? I can get you whatever you need." He was transported to the police station, wherehe was required to remove his clothes. He was then repeatedly ordered to bend over and spread thecheeks of his buttocks. Defendant eventually complied and police investigators spotted a small plasticbag, later determined to contain cocaine, protruding out of his rectum.
Defendant was charged in an indictment with criminal possession of a controlled substance in thethird degree, attempted criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the fourth degree. Following a suppression hearing, CountyCourt (Drago, J.) concluded that the drugs discovered during the visual body cavity search ofdefendant were admissible. The matter proceeded to trial, at the close of which defendant wasconvicted of criminal possession of a controlled substance in the third degree and [*2]criminal possession of a controlled substance in the fourth degree. Hewas subsequently sentenced to an aggregate term of 2½ years in prison to be followed by twoyears of postrelease supervision. Defendant appeals, and we now reverse.
"[A] strip search must be founded on a reasonable suspicion that the arrestee is concealingevidence 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 thearrestee secreted evidence inside a body cavity" (People v Hall, 10 NY3d 303, 310-311 [2008], cert denied 555US —, 129 S Ct 159 [2008]). Particularly relevant here, "visual cavity inspections. . . cannot be routinely undertaken as incident to all drug arrests or permitted under apolice department's blanket policy that subjects persons suspected of certain crimes to [this]procedure[ ]" (id. at 311). Rather, "[t]here must be particular, individualized facts known to thepolice that justify subjecting an arrestee to [a visual cavity inspection]" (id.).
In our view, and assuming without deciding that the strip search itself was founded on a reasonablesuspicion, there was no specific, articulable factual basis supporting a reasonable suspicion forconducting the visual cavity inspection here. Although defendant's statements to the informant may havebeen indicative of his involvement in the drug trade, his representation that he could "get you whateveryou need" was vague as to whether he actually possessed narcotics at the time and did not provide aspecific, articulable basis to prompt the visual cavity inspection. Inasmuch as a review of the recordreveals no evidence—beyond defendant's statement that he could get the confidential informantwhat she needed—to lead the police to reasonably suspect that evidence was concealed in abody cavity (cf. id. at 312; People v Clayton, 57 AD3d 557, 558 [2008]), the policewere not justified in conducting a visual cavity inspection of defendant, and the evidence related to theinspection should have been suppressed.
Carpinello, Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is reversed, on thelaw, motion to suppress granted, and matter remitted to the County Court of Schenectady County forfurther proceedings not inconsistent with this Court's decision.