| People v Cogdell |
| 2015 NY Slip Op 02023 [126 AD3d 1136] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James E. Cogdell, Appellant. |
Tracy A. Donovan-Laughlin, Cherry Valley, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered March 1, 2013, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
In March 2012, members of the Elmira Police Department's drug unit beganconducting electronic surveillance of an individual believed to be dealing crack cocainein Chemung County. On May 13, 2012, one of the officers intercepted certain phonecalls between the suspected dealer and another individual; based upon the use of variouscoded words and phrases during those phone calls, the officer believed that a drug dealwas being arranged. In response, the officer alerted the surveillance team that wasmonitoring a location frequented by the alleged dealer. Shortly thereafter, anindividual—later identified as defendant—approached the residence inquestion on a bicycle and went inside. Approximately 20 minutes later, defendant exitedthe residence and rode away on his bicycle, cutting through the parking lot of a local RiteAid drug store.
Shortly thereafter, defendant was stopped by police—ostensibly for riding hisbicycle in violation of various provisions of the Vehicle and Traffic Law. In response topolice questioning, defendant began to "fidget[ ]" and "perspire heavily," appeared to be"very, very nervous" and was "shaking so uncontrollably" that he had difficultyproducing his identification. Although defendant claimed to have just purchasedmedication at Rite Aid, the officer in question knew that this was untrue, as he hadpersonally observed defendant pass through the [*2]parking lot without stopping at the store. When askedwhether he was in possession of any illegal items, defendant responded negatively andinvited the officer to "check him." Although the ensuing pat-down frisk did not discloseany drugs or weapons, the officer did retrieve a large jar of Vaseline, which—inhis experience—often was used by individuals to aid in secreting narcotics on theirperson. After defendant falsely denied prior contact with the Elmira Police Department,he was asked to accompany the officers to the police station. At this point, defendant fledthe scene and, after a short foot chase, was apprehended and taken into custody.
Once at the police station, officers performed a strip search of defendant, which didnot yield any drugs. When officers attempted to visually inspect defendant's rectal area,defendant was noncompliant and complained that his chest hurt. Defendant then wastransported to a local hospital for evaluation, but was uncooperative with the medicalstaff. While there, and following discussions with various law enforcement officials,defendant retrieved a plastic bag of cocaine from his rectum, turned it over to an officerand then left the hospital by himself.
Defendant thereafter was charged in a single-count indictment with criminalpossession of a controlled substance in the third degree. Following the denial of hismotion to suppress the 26.8 grams of cocaine recovered from his person, defendantpleaded guilty as charged and thereafter was sentenced to a prison term of four yearsfollowed by two years of postrelease supervision. Defendant now appeals, contendingthat County Court erred in denying his suppression motion.
As a preliminary matter, inasmuch as the record does not reflect that defendantwaived his right to appeal (compare People v Guyette, 121 AD3d 1430, 1431 [2014]),and because defendant did not enter his plea until after County Court denied his requestto suppress the drugs in question (compare People v Morrison, 106 AD3d 1201, 1202 [2013],lv denied 23 NY3d 1065 [2014]), defendant's challenge to County Court's denialof his suppression motion survives his guilty plea (see CPL 710.70 [2]; People v Rasul, 121 AD3d1413, 1415 n [2014]). Turning to the merits, the principles governing strip searchesand body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied555 US 938 [2008]). Insofar as is relevant here, "a strip search must be founded on areasonable suspicion that the arrestee is concealing evidence underneath clothing and thesearch must be conducted in a reasonable manner. To advance to . . . avisual cavity inspection, the police must have a specific, articulable factual basissupporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside abody cavity and the [ensuing] visual inspection must be conducted reasonably"(id. at 310-311; seePeople v Mothersell, 14 NY3d 358, 366-367 [2010]; People v Hunter, 73 AD3d1279, 1280 [2010]; Peoplev Clayton, 57 AD3d 557, 558 [2008], lv denied 12 NY3d 852 [2009]).Although the police cannot routinely subject all drug arrestees to visual cavityinspections, the police are permitted—in the context of formulating theparticularized factual basis required for such inspections—"to draw on their ownexperience and specialized training to make inferences from and deductions about thecumulative information available to them that might well elude an untrained person"(People v Hall, 10 NY3d at 311 [internal quotation marks and citation omitted];accord People v Mothersell, 14 NY3d at 366-367; People v Clayton, 57AD3d at 558).
Here, the evidence adduced at the suppression hearing revealed that the policeintercepted a series of phone calls wherein the suspected dealer and anotherindividual—employing coded words and phrases that had specific meaningswithin the drug trade—discussed what the officers believed—based upontheir training and experience—to be the sale of a specific quantity of drugs at aparticular location (see People v Tambe, 71 NY2d 492, 501 [1988]; People vBaker, 174 AD2d 815, 816-817 [1991], lv denied 78 NY2d 920 [1991]; cf. People v Browning, 117AD3d 1471, 1471 [2014], lv denied 23 NY3d 1060 [2014]). An individual,later identified [*3]as defendant, thereafter was seenentering and leaving the address discussed in the intercepted phone calls—aresidence where the suspected dealer had been "hanging out and selling" drugs. Uponbeing approached by the police, defendant was nervous, fidgety and shakinguncontrollably and provided false information regarding both his recent whereabouts andhis prior contact with the local police department (see People v Anderson, 104 AD3d 968, 971 [2013], lvdenied 21 NY3d 1013 [2013]; People v Walker, 27 AD3d 899, 901 [2006], lvdenied 7 NY3d 764 [2006]; People v Kelley, 306 AD2d 699, 700 [2003],lv denied 1 NY3d 598 [2004]). Although the pat-down frisk failed to yield anydrugs, a large jar of Vaseline was found on defendant's person, the use ofwhich—according to testimony adduced at the hearing—is a "commonpractice for people involved in [the] narcotics trade" when attempting to secrete drugs ontheir person (see People v Wright, 283 AD2d 712, 714 [2001], lv denied96 NY2d 926 [2001]). Based upon the contents of the subject phone calls anddefendant's subsequent presence at a location known for drug sales, as well asdefendant's documented demeanor, the false information that he provided and thediscovery of the jar of Vaseline, the officers in question reasonably suspected thatdefendant had secreted drugs on his person. When they attempted to perform a visualcavity inspection, however, defendant essentially was noncompliant and begancomplaining of chest pains—a tactic that defendant previously had employedwhen interacting with law enforcement officials.
The foregoing evidence, in our view, both provided the reasonable suspicionnecessary for the initial strip search of defendant and furnished the "specific, articulablefactual basis" (People v Hall, 10 NY3d at 311) required in order to undertake thesubsequent visual cavity inspection of his person (compare People v Gonzalez, 57 AD3d 1220, 1221-1222[2008]). We also are satisfied that this visual cavity inspection was conducted in areasonable manner, i.e., in a private room with only male officers present. Finally,inasmuch as the record reflects that defendant himself removed and turned over the drugsin question, no violation of defendant's Fourth Amendment rights occurred (seePeople v Hunter, 73 AD3d at 1281). Accordingly, we discern no basis upon which todisturb County Court's denial of defendant's suppression motion.
Garry, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment is affirmed.