| People v Nicholas |
| 2015 NY Slip Op 01679 [125 AD3d 1191] |
| February 26, 2015 |
| Appellate Division, Third Department |
[*1](February 26, 2015)
| The People of the State of New York, Appellant, vMichael Nicholas, Also Known as Michael Nicholas Cummings,Respondent. |
Robert M. Carney, District Attorney, Schenectady (Kevin Cheung of counsel), forappellant.
Mark J. Caruso, Public Defender, Schenectady (Lauren Mack of counsel), forrespondent.
Lahtinen, J.P. Appeal from an order of the County Court of Schenectady County(Drago, J.), entered March 15, 2013, which, among other things, granted defendant'smotion to suppress.
During the afternoon on April 9, 2012, police stopped a car in the City ofSchenectady, Schenectady County, based on information that there was an active arrestwarrant for the driver. Defendant, a rear seat passenger, was observed by police with hishand in the open zipper of his pants. When he failed to adhere to police directives tokeep his hands in view, defendant was removed from the car, placed face down in thestreet, handcuffed and moved face down to an adjoining lawn of a high school. Duringthe removal, defendant's pants and underwear ostensibly came part way down exposing aportion of his buttocks, where an officer observed a white object. A detective arrived,lifted defendant's underwear to see the object and summoned an ambulance; when theambulance had not arrived after 20 to 25 minutes, the detective put on rubber gloves andremoved the object from defendant's buttocks as he laid on the school lawn. The objectwas a condom containing 69 packets of heroin.
Defendant was indicted on several charges and moved to, among other things,suppress the drugs seized from him. Following a Mapp hearing, County Courtrendered a detailed [*2]decision in which it foundprobable cause for the stop and that the two visual body cavity inspections werereasonable. However, the court suppressed the evidence upon its finding that thedetective had conducted a warrantless manual cavity search and that such search wasunreasonable under the circumstances. The People appeal.
In People v Hall (10NY3d 303 [2008], cert denied 555 US 938 [2008]), the Court set forth theapplicable standards for the three distinct and increasingly intrusive types of bodilyexaminations of a strip search, a visual body cavity inspection and a manual body cavitysearch. We are concerned here with the third and most intrusive. As to such a search, "theremoval of an object protruding from a body cavity, regardless of whether any insertioninto the body cavity is necessary, . . . cannot be accomplished without awarrant unless exigent circumstances reasonably prevent the police from seeking priorjudicial authorization" (id. at 311; see People v More, 97 NY2d 209, 214[2002]). Examples of sufficient exigent circumstances could include that "the drugs werein imminent danger of being destroyed, disseminated or lost, or that defendant was inmedical distress" (People v Hall, 10 NY3d at 313).
Although there was conflicting proof as to whether the object was actually indefendant's rectum or merely nesting in his underwear, County Court concluded that theobject was secreted partially in defendant's body. "[W]e accord great weight to thecredibility determinations made by the suppression court, given its peculiar advantage ofhaving seen and heard the witnesses" (People v Issac, 107 AD3d 1055, 1057 [2013]). The recordcontains ample evidence to support County Court's conclusion and we discern no reasonto disagree with its credibility determinations. Inasmuch as the record supports thedetermination that the object was at least partially in defendant's rectum and wasremoved without a warrant, it was incumbent upon the People to establish exigentcircumstances.
This they failed to do. The detective indicated that he was concerned that defendantcould tamper with the evidence and also that the object containing the contraband couldrip, resulting in a medical emergency for defendant. Given defendant's position of beinghandcuffed face down with three police guarding him, County Court was unpersuadedthat defendant tampering with the object constituted an acceptable exigent circumstance.The court further noted that, had an emergency existed, police would not have waited for20 to 25 minutes before removing the item. The detective acknowledged that he couldhave made an oral application to a judge for a warrant. There was insufficient proof thatdefendant's health was in immediate jeopardy and, as observed by County Court,accepting as a medical exigent circumstance the presence of an object such as this in adefendant's body would essentially eviscerate the warrant requirement whenever adefendant secreted suspected drugs in his or her body. The remaining arguments by thePeople have been considered and are either academic or unavailing.
Garry, Rose and Devine, JJ., concur. Ordered that the order is affirmed.