People v. Hall

Ciparick, J. (concurring).

I agree with the Court’s conclusion that the manual body cavity search at issue here is unconstitutional under People v More (97 NY2d 209 [2002]) and Schmerber v California (384 US 757 [1966]). As a result, the majority correctly concludes that the cocaine that the police forcibly removed from defendant’s rectum must be suppressed. I also agree that the reasonable suspicion standard should govern strip searches conducted to disarm suspects and to prevent the destruction or concealment of contraband. I cannot, however, join the majority in holding that visual body cavity searches incident to arrest constitute an exception to the warrant requirement of the Federal and State Search and Seizure Clauses. Rather I would hold that, just like a manual body cavity search, this intrusive, degrading, and humiliating species of search may only be conducted upon a neutral and detached magistrate’s issuance of a warrant based upon probable cause or upon satisfaction of Schmerber’s clear indication test.

The rule announced in Schmerber is unequivocal. The search incident to arrest exception to the warrant requirement does not apply to “searches involving intrusions beyond the body’s surface” (Schmerber, 384 US at 769). Rather, to safeguard the interests in the “human dignity and privacy” that the Search and Seizure Clauses were designed to protect, an intrusion extending beyond the body’s surface may not be undertaken on the “mere chance that desired evidence might be obtained” (id. at 770). It must, instead, be authorized by a warrant issued by a neutral and detached magistrate because “[t]he importance of *314informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great” (id.). Indeed, the Court reasoned that “[sjearch warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned” (id.).

Nonetheless, Sehmerber does not require a warrant for all bodily intrusions. An exception to its rule is permitted if three demonstrable facts are established: a “clear indication” that relevant evidence will be found in the bodily area to be searched, an “emergency” situation in which there was “no time” to secure a magistrate’s warrant and any delay threatened the imminent destruction of relevant evidence and performance of the search in a “reasonable manner” (Sehmerber, 384 US at 770, 771).1 We adopted the Sehmerber test in More to govern “body cavity searches incident to . . . arrest” (More, 97 NY2d at 213). Because we did not distinguish between visual and manual body cavity searches in that case, we are now required to determine whether Sehmerber should apply to both categories of body cavity searches.

The majority holds that visual body cavity searches are exempt from Sehmerber's rule and are subject to the reasonable suspicion standard because it is “reasonable” to distinguish such searches from manual body cavity searches (see majority op at 308-309). This is so, says the majority, because a visual body cavity search “do[es] not create a risk of physical pain or injury” and is therefore somehow less intrusive than “a physical search of an arrestee’s body cavity” (see majority op at 309, 310). But, even assuming that that assertion is correct, it is still true that eyes—as well as fingers and tools—can intrude unreasonably upon constitutionally protected privacy rights (see Kamins, New York Search and Seizure § 4.01 [1], at 4-3 [2007 ed] [“Whenever it is determined that an area is one in which an individual has a *315reasonable expectation of privacy, the invasion of that privacy constitutes a search within the meaning of the Fourth Amendment ... A search can take a variety of forms (including) . . . a visual inspection”]).

When a law enforcement official peers into the rectum of an arrestee to search for contraband, that visual inspection is clearly an intrusion into the body (see Fuller v M.G. Jewelry, 950 F2d 1437, 1449 [9th Cir 1991] [“Schmerber governs all searches that invade the interior of the body—whether by a needle that punctures the skin or a visual intrusion into a body cavity”]). The fact that “no touching” (see majority op at 308) occurs is immaterial because the search represents a drastic affront to human dignity and privacy, the very fundamental constitutional interests that Schmerber’s rule was designed to protect (see 950 F2d at 1449 [“ ‘The interests in human dignity and privacy’ invaded when a public official peers inside a person’s body cavity are at least as great as those invaded by a needle piercing the skin. Therefore, a body cavity inspection cannot be justified by a lesser standard than that applied in Schmerber for a blood test”]; cf. United States v Oyekan, 786 F2d 832, 839 n 13 [8th Cir 1986] [“We believe a body cavity search must be conducted consistently with the Schmerber factors, even though such a search does not technically require piercing the skin, because both the degree and kind of intrusion involved are of analogous proportions”]).

Indeed, it is indisputable that visual body cavity searches are degrading, humiliating, and frightening (see Campbell v Miller, 499 F3d 711, 718 [7th Cir 2007], quoting Mary Beth G. v City of Chicago, 723 F2d 1263, 1272 [7th Cir 1983] [“strip searches involving the visual inspection of the anal (and genital) area(s) are ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, (and) signify( ) degradation and submission’ ”]; State v Clark, 65 Haw 488, 497, 654 P2d 355, 362 [1982] [“It is humiliating and degrading to be forced to totally expose one’s self to a total and hostile stranger”]; Bell v Wolfish, 441 US 520, 576-577 [1979, Marshall, J., dissenting] [visual body cavity searches “represent one of the most grievous offenses against personal dignity and common decency”]; accord More, 97 NY2d at 213 [body cavity searches incident to arrest are “invasive” and “degrading”]). Logically then—because we adopted the Schmerber test in More—our state’s citizens should be entitled to as much protection from warrantless visual body cavity searches as they are from a com*316mon blood drawing procedure that “involves virtually no risk, trauma, or pain” (see Schmerber, 384 US at 771).

I concede that the majority’s position is bolstered by the holdings of many federal circuit courts that have applied Bell v Wolfish (441 US 520 [1979]) to permit visual body cavity searches pursuant to a reasonable suspicion standard (see majority op at 308-309). But it is notable that the main factor motivating several of those courts to adopt the Wolfish test— the need to maintain institutional security—is wholly lacking support on this record (see Swain v Spinney, 117 F3d 1, 8 [1st Cir 1997] [“(T)he most compelling justification for warrantless strip and visual body cavity searches is institutional security”]; see also Mary Beth G., 723 F2d at 1273; Blackburn v Snow, 771 F2d 556, 564 [1st Cir 1985]). And, as the majority acknowledges, the U.S. Supreme Court has reserved on the issue of whether the Fourth Amendment permits warrantless strip searches performed incident to arrest (see Illinois v Lafayette, 462 US 640, 646 n 2 [1983]).

The Ninth Circuit has concluded that visual body cavity searches of arrestees are subject to Schmerber (see Fuller, 950 F2d at 1449). The courts in at least one other state agree (see Hughes v Commonwealth, 31 Va App 447, 460, 524 SE2d 155, 162 [2000] [“Probable cause to believe a suspect possesses drugs, which justifies a search of an individual, does not justify a strip or body cavity search unless the evidence or circumstances specifically provides the officers with a ‘clear indication’ that the contraband is concealed in a body cavity”]; cf. Moss v Commonwealth, 30 Va App 219, 224-226, 516 SE2d 246, 249-250 [1999] [applying Schmerber test to strip search]). Thus, the judicial consensus on the propriety of visual body cavity searches is far from settled (see 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.3 [c], at 167 [4th ed] [“(T)here is still a need to scrutinize closely those searches incident to arrest which involve inspections of or intrusions into the body”]).2

In any event, Wolfish should not govern visual body cavity searches incident to arrest (see Fuller, 950 F2d at 1448 [absent record evidence that arrestees “ever intermingled with the gen*317eral jail population . . . the rationale underlying Wolfish . . .— which only allows strip searches of detainees with less than probable cause where the objective is to discover weapons or contraband—does not apply to the instant case”]; see also Commonwealth v Gilmore, 27 Va App 320, 330 n 5, 498 SE2d 464, 469 n 5 [1998] [“The analytical framework set forth in Wolfish is inapplicable . . . Because a person who is searched incident to arrest is not yet incarcerated, he or she has greater constitutional protection than a pretrial detainee. As such, this case is controlled by the principles set forth in Schmerber”]). Wolfish did not overrule Schmerber. Instead it recognized that the Fourth Amendment standard of reasonableness is a flexible one that requires “balancing . . . the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted” (Wolfish, 441 US at 559).

I respectfully submit that—in the context of visual body cavity searches incident to arrest—the proper balance of constitutional interests has already been struck—in Schmerber (see Fuller, 950 F2d at 1448; Hughes, 31 Va App at 460, 524 SE2d at 162; Gilmore, 27 Va App at 330 n 5, 498 SE2d at 469 n 5). In Wolfish, there was a reason to tip the scales towards the government, namely record evidence that the federal pretrial detention facility at issue there was a “unique place fraught with serious security dangers,” where “[s]muggling of money, drugs, weapons, and other contraband is all too common an occurrence” (441 US at 559). As the majority admits, however, the record before us contains no evidence of parallel security concerns plaguing the 26th Precinct station house (see majority op at 309). Instead, the record demonstrates that: at least 12 holding cells, some of which were located 20 feet from the station house desk, were available for searching arrestees, another 14 detention cells were available for “overnight lodging,” and that defendant’s cohort was searched in a cell separate from him.3 Thus, the Appellate Division’s reliance upon Wolfish is misplaced.

*318Moreover, the balance struck in Wolfish was predicated on the assumption that “convicted prisoners” and “pretrial detainees” merely retained “some” Fourth Amendment rights upon their commitment (see 441 US at 558). Here, in contrast, we deal with an arrestee, who at the time of the search had not yet even been arraigned and who was therefore entitled—at the very least—to enjoy greater constitutional protection than a pretrial detainee, who was remanded to supervision following arraignment, or a convicted prisoner (Gilmore, 27 Va App at 330 n 5, 498 SE2d at 469 n 5; cf. Block v Rutherford, 468 US 576, 583 [1984] [“The very fact of nonrelease pending trial ... is a significant factor bearing on the security measures that are imperative to the proper administration of a detention facility”]; People ex rel. Maxian v Brown, 77 NY2d 422, 427 [1991] [noting that “the deprivation entailed by prearraignment detention is very great (and is) . . . one as to which no predicate is established in advance and, indeed, which may ultimately be found to have been unwarranted” (internal quotation marks omitted)]; State v Bayaoa, 66 Haw 21, 25 n 2, 656 P2d 1330, 1332 n 2 [1982] [“at least with regard to the fourth amendment, the rights of persons not yet convicted of crimes must be more closely scrutinized than the rights of prisoners”]).

Application of the reasonable suspicion standard in this case is also particularly inappropriate because we have stated that that standard applies to searches that are “uniquely discriminate” and “nonintrusive” (see e.g. People v Dunn, 77 NY2d 19, 26 [1990] [canine sniff search of apartment hallway subject to reasonable suspicion standard because “(i)t does not entail entry into the premises or exposure of one’s personal effects to the police”]; see also People v Cantor, 36 NY2d 106, 112-113 [1975] [reasonable suspicion standard applies to authority of police officers to stop and inquire of citizens in public place]). And the U.S. Supreme Court has applied the standard to the detention of suspected smugglers at national borders, where the interests of the individual are greatly outweighed by those of the government (United States v Montoya de Hernandez, 473 US 531, 541-542 [1985]). Even in that context, however, the Court made clear that “[t]he ‘reasonable suspicion’ standard” is intended to “effectt ] a needed balance between private and public interests when law enforcement officials must make a limited intrusion *319on less than probable cause” (id. at 541). A visual body cavity search, however, cannot be characterized as a “limited intrusion.”

Nor can visual body cavity searches be justified under our precedents recognizing an officer’s right to conduct a limited search incident to arrest. Such a search is constitutionally permissible based upon two exigent circumstances: the need to protect the safety of the arresting officer and the need to prevent the destruction of evidence (see People v Evans, 43 NY2d 160, 165 [1977]; Chimel v California, 395 US 752, 763 [1969]). We have explained that such searches are permitted because they represent de minimis intrusions when compared with the loss of liberty occasioned by the arrest that preceded them (see People v De Santis, 46 NY2d 82, 87 [1978], overruled on other grounds by People v Belton, 55 NY2d 49 [1982]; cf. People v Perel, 34 NY2d 462, 467 [1974] [explaining, in context of inventory search, that “(g)iven the nature of the gross intrusion by detention of the person it is reasonable to conduct a less intrusive search of his person and the possessions he carried with him”]). Thus, a warrantless search is not justified when “the intrusion required for [it] is of a greater magnitude than the gross personal intrusion of the arrest and the personal search incident to it” (see Perel, 34 NY2d at 468). Here, the visual body cavity search was unjustified because the inspection of defendant’s highly private and intimate areas greatly exceeded the magnitude of the intrusion occasioned by his arrest and the pat-down search incident to it.

Most importantly, given “our strong preference for search warrants” (see People v Hanlon, 36 NY2d 549, 558 [1975]), we must identify reasons for dispensing with the warrant requirement in particular cases (see Brigham City, Utah v Stuart, 547 US 398, 403 [2006], quoting Mincey v Arizona, 437 US 385, 393-394 [1978] [“(W)arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment”]). Critically, the ease of obtaining evidence of criminal conduct is not a relevant consideration in this inquiry (see Mincey, 437 US at 393 [“(T)he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. The investigation of crime would always be simplified if warrants were unnecessary” (citation omitted)]; see also Schmerber, 384 US at 770 [“In the *320absence of a clear indication that in fact such evidence will be found . . . fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search”]; cf. People v Gokey, 60 NY2d 309, 312, 313 [1983] [lack of “exigent circumstances” rendered search of bag impermissible where defendant was handcuffed and “(t)he police officers’ interest in the bag focused solely on the possibility that it contained marihuana”]). Exigencies threatening officer safety or the imminent destruction of evidence are valid justifications for dispensing with the warrant requirement (see e.g. Evans, 43 NY2d at 165). But once an arrest has occurred, these important factors lose much of their force (see e.g. Gokey, 60 NY2d at 313-314 [warrantless search impermissible where defendant was handcuffed and surrounded by officers because the “police . . . did not fear for their safety, and because they could not have reasonably believed that the search of the bag was necessary to preserve any evidence”]).

Therefore, in the context of a station house visual body cavity search, where an arrestee can be segregated, monitored and secured pending the issuance of a warrant and there is no record evidence of any exigency threatening safety and security or the imminent destruction of evidence, the police must obtain a warrant or proceed under Schmerber’s clear indication test (see Clark, 65 Haw at 497, 654 P2d at 362, citing Fontenot, 383 So 2d at 367 [“(T)he police could have detained and watched defendant . . . so as to prevent destruction of evidence during the short delay caused by getting a warrant. This burden on the police does not raise this situation to the level of an emergency”]). Any exception to this rule would authorize warrantless visual body cavity searches solely to secure evidence of criminality. That should not be permitted.

The probable cause standard could be met in many cases where visual body cavity searches would aid law enforcement (see CPL 70.10 [2]). Like the reasonable suspicion standard, its contours are equally clear: “the information [contained in the warrant application] must be sufficient to warrant a person of reasonable caution in the belief that . . . evidence of a crime w[ill] be found in a particular place” (People v P.J. Video, 68 NY2d 296, 300 [1986]). In evaluating the warrant application, the magistrate must consider “all aspects of the information supporting [it],” including “the experience and expertise of the officers involved” and “the nature of the crime and the exigencies, if any, involved” (see id. at 306 [emphasis omitted]). Under *321this standard, a magistrate could certainly approve a visual body cavity search of a narcotics arrestee.

Indeed, several facts could support a proper warrant application, including officers witnessing a defendant secrete narcotics, suspicious movements consistent with storage of a foreign substance in a body cavity, defendants’ admissions, and reliable information obtained from police sources (see People v Jones, 3 Misc 3d 481, 482 n 2, 485-486 [Sup Ct, Bronx County 2004] [police had “probable cause” where observing officer witnessed arrestee “put the drugs down the back of his pants”]; People v Perry, 6 Misc 3d 1028[A], 2005 NY Slip Op 50219[U], *5 n 5, *4-5 [Sup Ct, Queens County 2005] [police had “clear indication” that arrestee had secreted drugs in rectum where, after being segregated in a cell pending issuance of warrant, he behaved erratically “and was observed wiggling his body . . . (and) reaching into the back of his pants and putting his hand to his mouth”]; cf. People v Kelley, 306 AD2d 699, 700 [3d Dept 2003] [factors that courts consider to determine reasonableness of strip searches include “defendant’s excessive nervousness, unusual conduct, information showing pertinent criminal propensities, informant’s tips, loose-fitting or bulky clothing, an itinerary suggestive of wrongdoing, incriminating matter discovered during a less intrusive search, lack of employment, indications of drug addiction, information derived from others arrested or searched contemporaneously, and evasive or contradictory answers to questions”]).

In any event, had the police monitored defendant in a holding cell, additional facts may have come to light that could have permitted a visual body cavity search under the Schmerber test (see Perry, 2005 NY Slip Op 50219[U] at *2 [after police attempted to obtain warrant, exigent circumstances arose when they observed defendant put “his hand down the rear of his underwear in the area of his anus” and then begin to eat something]; cf. People v Barnville, 31 AD3d 271, 272-273 [1st Dept 2006] [because of “the trained, experienced officer’s observation of defendant, at a notorious drug location, retrieving an item from his buttocks area and exchanging it for money from a person found in possession of drugs minutes later, the fruitless search of defendant’s outer garments, and the knowledge that drug dealers often store drugs within their buttocks or rectum—there was sufficient evidence to support not only probable cause to arrest for a drug sale, but an objective, particularized, reasonable belief that defendant was secreting contraband in the area of his buttocks”]).

*322That there are any number of factual situations in which probable cause to conduct a visual body cavity search could be satisfied underscores the fact that “[i]n dealing with probable cause ... we deal with probabilities” (see Brinegar v United States, 338 US 160, 175 [1949]). But when the assessment of those probabilities can lead to an intrusion upon human dignity and privacy as grievous and degrading as a visual body cavity search, then such assessment—absent exigent circumstances not present here—should be made by a neutral and detached magistrate (see Hanlon, 36 NY2d at 558 [warrant requirement “is designed to interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and the potential encroachments on the sanctity and privacy of the individual”]).

In conclusion, I concur in the result that the majority reaches today, but I cannot join in the full breadth of its reasoning. The fundamental constitutional interests of human dignity and bodily integrity are not only implicated when intimate bodily areas are touched. A visual intrusion into a body cavity is an “intrusion beyond the body’s surface” and thus, the Schmerber test must apply to such searches as well as manual body cavity searches. I would therefore grant defendant’s motion to suppress the drugs and dismiss the indictment.

. Of course, even if a warrant is issued, the search must be conducted in a reasonable manner. The majority properly acknowledges that it would require “highly unusual facts” (see majority op at 311 n 8) to justify a public visual body cavity search (see e.g. Paulino v State, 399 Md 341, 360, 924 A2d 308, 319 [2007] [combined strip and visual body cavity search conducted in well-lit parking lot, where car passengers could observe, unconstitutional because it was “unnecessarily within the public view and thus violative of the Fourth Amendment”]; Campbell v Miller, 499 F3d 711, 719 [7th Cir 2007] [“Courts across the country are uniform in their condemnation of intrusive searches performed in public”]; see also People v Mitchell, 2 AD3d 145, 147 [1st Dept 2003] [“The strip search of the defendant, in public view . . . was not reasonable”]).

. In two cases decided after Wolfish, the courts of last resort in Hawaii and Louisiana held that Schmerber applies to body cavity searches conducted incident to arrest (see State v Clark, 65 Haw 488, 497, 654 P2d 355, 362 [1982]; State v Fontenot, 383 So 2d 365, 367 [La 1980]). Those cases, however, concerned manual body cavity searches and did not express a view on the applicability of Schmerber to visual body cavity searches.

. Because constitutional search and seizure protections are flexible, I do not foreclose the possibility that a particular station house may experience the same security concerns at issue in Wolfish. If such legitimate concerns caused by, for example, cell overcrowding, were established by record evidence, then *318those facts could constitute an exigent circumstance under the Schmerber test.