| People v Colon |
| 2011 NY Slip Op 00027 [80 AD3d 440] |
| January 4, 2011)<> |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseColon, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J., at hearings; Maxwell Wiley, J., atplea and sentence), rendered July 22, 2009, convicting defendant of criminal possession of a controlledsubstance in the third degree, and sentencing him, as a second felony drug offender, to a term of3½ years, unanimously reversed, on the law and on the facts, defendant's suppression motiongranted, and the indictment dismissed.
The police obtained a warrant that authorized a search of defendant and his vehicle, but did notauthorize any kind of body cavity search. The police took defendant to the precinct, where a pat-downsearch revealed a gravity knife and currency but no drugs. The police then conducted a strip search andvisual body cavity search which led an officer to notice a white object in defendant's buttocks. Thepolice removed the white object, which was a piece of toilet paper rolled in a ball around 29 glassinesof heroin, and removed another object they saw behind the toilet paper, which also contained drugs.
Whether or not there was a manual body cavity search (see People v Hall, 10 NY3d 303, 306-307 [2008], cert denied555 US —, 129 S Ct 159 [2008]), in addition to the visual body cavity search we find that thefacts here did not even provide reasonable suspicion justifying a visual body cavity search. To conduct"a visual cavity inspection, the police must have a specific, articulable factual basis supporting areasonable suspicion to believe the arrestee secreted evidence inside a body cavity . . .[V]isual cavity inspections . . . cannot be routinely undertaken as incident to all drugarrests or permitted under a police department's blanket policy that subjects persons suspected ofcertain crimes to these procedures" (People v Hall, 10 NY3d at 311).
There were no such particularized facts here. The police officers' generalized knowledge that drugsellers often keep drugs in their buttocks, and the fact that no drugs were found in a search ofdefendant's clothing were insufficient. While there may be scenarios where the logical inference to bedrawn from the absence of drugs in a defendant's clothing is that he or she must have them in a bodycavity, because the drugs had to be somewhere, no such inference could be drawn here. Theinformation that led to the issuance of a warrant nine days earlier gave the police reason to believe thatdefendant was a person likely to be carrying drugs, but gave no [*2]specific reason to believe he ever carried them in his buttocks. Under thefacts presented, the absence of drugs in his clothing was consistent with the possibility that he was notcarrying drugs at all on that particular occasion. Concur—Tom, J.P., Moskowitz, Freedman,Richter and Manzanet-Daniels, JJ.