Housh Law Offices Client Wins Suppression of Evidence in Federal Court

The firm represents Martellus Jones in federal court, United States, Western District of New York, related to charges that he possessed controlled substances. The firm successfully challenged the legality of the search in this case and achieved suppression of the evidence.  Below is the court’s decision, edited only in format.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA                       1:17-CR-00086-RJA-MJR

v.

MARTELLUS JONES, Defendant.

REPORT, RECOMMENDATION AND ORDER

This case was referred by the presiding judge, the Honorable Richard J. Arcara, to this Court, pursuant to 28 U.S.C. §636(b)(1), to handle non-dispositive discovery motions and to make a recommendation as to all suppression motions. Before the Court are omnibus motions by defendant Martellus Jones (“defendant”), including a motion to suppress evidence and statements as well as various discovery demands. (Dkt. Nos. 12, 38)  For the following reasons, it is recommended that defendant’s motion to suppress evidence be granted and his motion to suppress statements be denied.   The Court’s decisions as to defendant’s various discovery demands are also set forth in detail below.

BACKGROUND AND PROCEDURAL HISTORY

On April 27, 2017, an Indictment was filed charging defendant with: (1) possession of cocaine base with intent to distribute, in violation of Sections 841(a)(1) and 841(b)(1)(C) of Title 21 of the United States Code; (2) possession of heroin and butyryl fentanyl with intent to distribute, in violation of Sections 841(a)(1) and 841(b)(1)(C) of Title 21 of the United States Code; and (3) possession of heroin and cocaine with intent to distribute in violation of Sections 841(a)(1) and 841(b)(1)(C) of Title 21 of the United States Code. (Dkt. No. 1)

Defendant has filed omnibus motions seeking, inter alia, suppression of evidence seized during a car stop involving defendant on December 17, 2016.  (Dkt. Nos. 12, 38) The Government filed responses to the motions.   (Dkt. Nos. 13, 39)   A suppression hearing was held before the Court on March 27, 2018 and April 30, 2018 and included the testimony of Officer William Robinson and Officer Anniel Vidal of the Buffalo Police Department and Lindsay Lee.  (Dkt. Nos. 72-74)

The Government and defendant filed post-hearing briefs on August 30, 2018. (Dkt. Nos. 67 and 68)  Defendant filed a reply on September 14, 2018.  (Dkt. No. 70)  Oral argument was held before this Court on September 20, 2018, at which time the Court considered the matter submitted.

MOTION TO SUPPRESS

FINDINGS OF FACT

During the hearing on March 27, 2018, Officer William Robinson testified that he has been employed by the Buffalo Police Department for the past ten years.  (Dkt. No. 72, pg. 3)  Officer Anniel Vidal testified that he has been employed by the Buffalo Police Department for the past six years.  (Id. at 37)  On December 17, 2016, Robinson and Vidal worked an afternoon shift together from 3:00 p.m. through 1:30 a.m. (Id.) Robinson testified that at approximately 8:00 p.m., he observed a 2016 gray Kia Sedona bearing a Maryland registration number travel through a red traffic signal at the intersection of Military Road and Hertel Avenue in Buffalo, New York.  (Id.)  Robinson testified that he was driving the patrol car at that time. (Id. at 5) He and Vidal then began traveling down Military Road behind the vehicle, with the intent of pulling the vehicle over. (Id.) Robinson testified that he paced the vehicle while following behind it.  (Id.)  Robinson testified that he has training and experience pacing vehicles.  (Id. at 5-6)  He explained that pacing involves traveling the same distance behind the vehicle for a certain amount of time and observing your own speedometer to ascertain the vehicle’s speed.   (Id.)  The posted speed limit on Military Road on that day was 30 miles per hour.  (Id. at 6-7)  Robinson testified that, based upon his pacing, he determined that the Kia Sedona was speeding. (Id. at 7) As a result of his observations that the vehicle failed to stop at a red traffic signal and was speeding, Robinson activated his lights and pulled the vehicle over at the intersection of Military Road and Grant Street.  (Id.)

Officer Robinson approached the vehicle and observed that the occupants included a female driver and defendant, who was riding in the front passenger seat.  (Id. at 8)  Robinson testified that he asked the female driver for her license and registration. (Id. at 9) Robinson later issued her traffic citations for traveling through a red traffic signal and speeding.  (Id.)

Officer Vidal testified that he approached the passenger side of the vehicle and observed that defendant was not wearing his seatbelt.   (Id. at 38-39)   Vidal asked defendant for identification and defendant stated he did have identification with him.  (Id. at 39-40) Vidal asked defendant for his first name, and defendant stated it was “Marcus”. (Id. at 40) Vidal then asked defendant to provide his last name and defendant responded “Turner.”  (Id.)  However, when Vidal asked defendant to spell his last name defendant stated “T-U-N-E-R”.  (Id.)  Vidal testified that he considered the answer and then asked defendant to spell his last name again, and defendant repeated “T-U-N-E-R”. (Id.) Vidal believed the answer to be suspicious because T-U-N-E-R is not the correct spelling of Turner.  (Id.)  Vidal asked defendant how old he was and defendant answered “29”.  (Id. at 40)  Vidal then asked defendant his date of birth and defendant answered “March 29, 1981”.  (Id. at 42)  Vidal found this response suspicious because an individual born in 1981 would not be 29 years old in 2017. (Id. at 42) Robinson also testified that, although he was standing on the other side of the vehicle, he heard defendant provide Vidal with incorrect information as to the spelling of his last name.  (Id. at 10)  Robinson further testified that the date of birth given by defendant did not match his stated age.  (Id.)

Vidal testified that, based on this interaction, he believed defendant was giving him false information about his identity.  (Id. at 45)  Vidal explained that it is important for police officers to have correct pedigree information during traffic stops in order to issue traffic citations, if appropriate, and to check for any outstanding warrants. (Id. at 44)  Vidal decided to place defendant in the back of the patrol car until he could ascertain defendant’s correct identity.  (Id.)  To that end, Vidal asked defendant to step out of the vehicle. (Id. at 45)  Vidal testified that defendant exited the vehicle normally and that he did not assist defendant or place his hands on defendant in any manner.   (Id. at 45) Robinson also testified that defendant voluntarily stepped out of the vehicle and was not pulled out by either Robinson or Vidal. (Id. at 28-29) Vidal asked defendant to turn around and place his hands on the vehicle because he intended to pat defendant down for weapons.  (Id. at 45-46) At that time, Robinson walked over to the passenger side to assist Vidal.  (Id. at 10-11)  Robinson testified that as soon as defendant exited the car, he smelled feces. (Id. at 11) Robinson testified that because the smell alerted him to the fact that defendant could have been “stuffing”1, he looked down.  (Id. at 31)  Robinson then observed that defendant’s pants and underwear were pulled down to a couple inches above his knees and that his buttocks were exposed.  (Id. at 11, 30-31)  Vidal also testified that Robinson stated that he smelled feces, which caused Vidal to look down and see that defendant’s pants were pulled down and his buttocks exposed.  (Id. at 46)  Vidal testified that he observed a small portion of a plastic bag sticking out from the “middle of the crack” of defendant’s “rear end”.  (Id. at 46-47)  Similarly, Robinson also testified that when he looked down “you could see there’s an actual bag sticking out of his butt, plastic bag sticking out of his butt.”  (Id. at 12)  When asked where the bag was sticking out from, Robinson affirmed  that  it  was from  the  “crack  area” or  “cheeks”.    (Id.)    Robinson specifically testified that he observed the end of the plastic bag.  (Id. at 33)

Following these observations, Vidal handcuffed defendant. (Id.) Vidal testified that he believed the plastic bag contained contraband, specifically some type of controlled substance.  (Id. at 47)  Vidal testified that he then took a “multi-tool” from the front of his vest and “gently pulled at the piece of bag that was protruding from [defendant’s] butt.” (Id. at 48) Vidal described the multi-tool as a “multi-function instrument” with a number of attachments, including pliers. (Id. at 48, 61) Robinson similarly testified that Vidal took a multi-tool and “literally just caught the tip of the bag and pulled it straight out.”  (Id. at 12-13) Robinson further testified that Vidal only used the multi-tool tool to grab the exposed portion of the bag and that Vidal did not have to enter defendant’s body to remove it. (Id. at 13)  Vidal testified that when he observed the contents of the bag, he believed, based upon his training and experience, that the bag contained controlled substances.  (Id. at 49)  Defendant was arrested for possession of a controlled substance.  (Id. at 50)  The officers testified that defendant was also charged with false impersonation and issued a citation for not wearing his seatbelt.  (Id. at 14, 50)

During cross-examination, Vidal was asked more specific questions as to where the plastic bag was located when he retrieved it with the multi-tool:

Q.    And you looked down and what did you see?

A.    Butt cheeks and a piece of bag sticking out.

Q.       Just a piece of the bag, right?

A. Correct.

Q. And it’s fair to say that the rest of the bag, you don’t know how far in it went; Isn’t that fair to say?

A. That is fair.

Q. You don’t know how much of it was in his cheeks and how much of it was in his anal cavity, did you

A. That is correct.

(Id. at 59-60)

Robinson was also asked, during cross-examination, where the plastic bag was positioned and to what the extent a portion of the bag was inside defendant’s anal cavity:

Q. Thank you. It’s fair to say you don’t know how far the glassine or the plastic bag you saw went into my client’s body, is that fair to say?

A.  All I know is I could see the bag sticking out like.

Q.  Okay. But you don’t know, you saw – you didn’t see the whole bag sticking out?

A.  Correct, I didn’t see the cluster in there.

Q. So you don’t know if the portion you couldn’t see was inside his anal cavity or between his cheeks, is that fair to say?

A. That’s fair to say.

Q. Because you said you could see it, you determined it was unnecessary to have him placed in detention and seek a warrant; is that right?

A. That’s fair. (Id. at 35)

It is noted that after having the opportunity to listen to Officers Robinson and Vidal and observe their demeanors during the hearing, the Court finds both witnesses to be wholly credible.

At the continuation of the hearing on April 30, 2018, Lindsay Lee testified that she was driving the vehicle pulled over by Officers Robinson and Vidal on December 17, 2016. (Dkt. No. 74, pg. 4) She testified that she and defendant had been shopping for sneakers at the time they were stopped. (Id. at 5) Lee testified that the vehicle she was driving did not belong to her but instead had been rented by a “friend of a friend” named Kelly.  (Id. at 5, 17)  However, Lee did not know Kelly’s last name nor did she know if the rental agreement permitted another party to drive the car.  (Id.)  Lee did not recall where she picked defendant up that afternoon nor did she recall where they had been prior to going shopping for sneakers. (Id. at 20-21)

Lee testified that she gave Robinson her name and indicated that she did not have a license. (Id. at 6-7) Lee further testified that at the time they were pulled over, defendant was fully clothed and that his pants were completely buttoned.  (Id. at 7-8)  She testified that she did not witness defendant do anything unusual, including try to remove his pants. (Id.)  Lee testified that the officers shined a flashlight on defendant and ordered him out of the car.  (Id. at 9, 11)  She testified that the officers opened the passenger door, took defendant by the arms and helped him out of the vehicle. (Id. 9, 11, 32) Lee testified that the officers pushed defendant up against the vehicle and began to search him. (Id. at 33) Lee testified that at the time of search, she was sitting in the driver seat and defendant was standing outside of the passenger doorway and facing toward the car.  (Id. at 33) She further testified that defendant was partially blocking the passenger side doorway.

(Id. at 34)   However, Lee maintained that despite the fact that defendant was facing towards her, she was able to observe the position of his pants over his buttocks.  (Id. at 33-38)  Lee claimed that she also observed Vidal use a tool to remove something from defendant’s rectum.  (Id.)

Lee did not recall specifically what traffic tickets she received that afternoon.  (Id. at 23)  However, she believed one of the tickets may have been for driving without a license. (Id. at 23) She testified that she did not hear any of the answers defendant gave to Vidal regarding his pedigree information.  (Id. at 28-31) Lee, who was pregnant at the time of the hearing, testified that defendant is not the father of the baby.  (Id. at 40)  She further testified that at the time of the stop, she and defendant were in a relationship. (Id.) However, she testified that, at the time of the hearing, she and defendant were no longer in a relationship.  (Id.)

It is noted that after hearing the testimony of Lindsay Lee and observing her demeanor during the hearing, the Court does not find her testimony to be credible or reliable.  Lee was unable to recall certain facts regarding the circumstances of the traffic stop, such as where she and defendant had been prior to sneaker shopping, the last name of the individual from whom Lee borrowed the vehicle, or the specific traffic tickets she received.  The Court finds that her inability to provide this information indicates that she either does not remember the events in detail or was deliberately withholding information. Further, it strains credulity that Lee, who was sitting next to defendant during the stop, did not hear any of the answers defendant provided to Vidal as to defendant’s pedigree information.  The Court does not credit Lee’s description of Vidal’s removal of the bag from defendant’s buttocks because she testified that defendant was facing her, and blocking the vehicle’s doorway, at that time.  In addition, the Court finds that Lee deliberately evaded answering a number of the Government’s questions regarding defendant’s position and her view of defendant during the search.  Finally, the fact that Lee had previously been in a romantic relationship with defendant is motivation for her to testify falsely or fail to provide accurate information in order to benefit defendant.

CONCLUSIONS OF LAW

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.”  Schmerber v. California, 384 U.S. 757, 766 (1966).   The touchstone of the Fourth Amendment is reasonableness, which “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979); United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008) (the Fourth Amendment prohibits unreasonable searches and seizures). To that end, courts are instructed to 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.”  Bell, 441 U.S. at 559.  As explained in detail below, the traffic stop, questioning and temporary detention of defendant was reasonable under the circumstances and did not run afoul of the Fourth Amendment. However, the Court finds that the officers violated defendant’s Fourth Amendment rights when they removed the plastic bag from defendant’s body on the roadside.  Instead, the officers should have detained defendant and obtained a warrant to conduct a body cavity search.

The traffic stop and temporary detention of defendant was lawful.

An ordinary traffic stop is a limited seizure pursuant to the Fourth Amendment. See United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994).  In order to justify a traffic stop, an officer must have either “probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct.”  United States v. Gaines, 457 F.3d

238, 243 (2d Cir. 2006); see also United States v. Foreste, 780 F.3d 518, 532 (2d Cir. 2015) (“Traffic stops are presumptively reasonable under the Fourth Amendment if the officer has probable cause to believe that a traffic infraction has occurred.”) Here, Officer Robinson credibly testified that he observed the grey Kia Sedona, driven by Lee, travel through a red traffic signal.  Robinson further testified credibly that he has training and experience pacing vehicles and that, after pacing the vehicle for a period of time, he concluded that the driver was speeding. Thus, the Court finds that the stop of the vehicle carrying defendant on December 17, 2016 was supported by reasonable suspicion that the driver committed the traffic infractions of speeding and failing to stop at a red traffic signal.

The Supreme Court has instructed that seizures during a traffic stop are more akin to a Terry stop than a formal arrest.  Berkemer v. McCarty, 468 U.S. 420, 439 (1984). See Terry v. Ohio, 392 U.S. 1 (1968) (where an officer has reasonable suspicion that criminal activity may be afoot, the officer is permitted to stop an individual for a brief period of time and take steps to investigate further).  The Supreme Court has further held that “questions concerning a suspect’s identity are a routine and accepted part of many Terry stops.” Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 186 (2004).   Indeed, even when officers have no basis for suspecting a particular individual, they may make general inquiries and ask to examine the individual’s identification. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). See also INS v. Delgado, 466 U.S. 210, 216 (1984) (“[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.”) In light of these holdings and the circumstances presented here, it was certainly appropriate for Officer Vidal to approach the passenger side of the vehicle and ask defendant for his identification.   When defendant stated that he did not possess identification, Vidal was entitled to ask defendant questions about his name and date of birth.   Vidal’s observation that defendant was not wearing a seatbelt was further justification for these inquiries.

A traffic stop “may be extended for investigatory purposes if an officer develops a reasonable suspicion of criminal activity supported by specific and articulable facts.” Foreste, 780 F.3d at 524; accord United States v. Glover, 957 F.2d 1004 (2d Cir. 1992). Vidal credibly testified that defendant gave suspicious answers to questions about his name and date of birth.  Specially, defendant stated that his last name was “Turner”, but twice spelled it “Tuner”.  In addition, defendant stated that he was 29 years old, but then stated that he was born on March 29, 1981.  Indeed, an individual born on March 29,

1981 would have been 35 years old on December 17, 2016.   Based on defendant’s responses to Vidal’s routine questioning, Vidal had reasonable suspicion to believe that defendant was not being truthful and that some type of criminal activity, such a false impersonation, was afoot.  Thus, he was entitled to ask defendant to step out of the car in order to question him further and ascertain his correct identity.  Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop…do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”); United States v. Mack, 5:14-CR-28, 2014 WL 7140604 (D. Vt. Dec. 12, 2014) (officer did not unreasonably prolong traffic stop by asking for driver’s license, inquiring as to where the occupants were going or asking the passenger for identification and passenger’s giving of a false name and false information regarding his residence was evidence of a new crime permitting officers to detain him further); Maryland v. White, 519 U.S. 408, 414-

15 (1997) (“An officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”)

Removal of the plastic bag violated defendant’s Fourth Amendment rights.

Vidal and Robinson credibly testified that when defendant exited the car, they observed his pants and underwear to be pulled down below his buttocks and his bare buttocks to be exposed.   They further testified, credibly, that they observed part of a plastic bag protruding from defendant’s rectum.  These observations, combined with the suspicious answers defendant gave to Vidal, provided probable cause to believe that defendant was secreting contraband.   However, Vidal and Robinson did not have a warrant to conduct either a general search or a body cavity search of defendant.  Under the Fourth Amendment, warrantless searches and seizures are per se unreasonable “subject only to a few specifically established and well-delineated exceptions.”  Katz v. United States, 389 U.S. 347, 357 (1967). For the reasons that follow, the Court concludes that none of the exceptions to the warrant requirement apply here and that it was unreasonable for the officers to perform a warrantless, roadside body cavity search of defendant.

The contraband was not in plain view.

Under the plain view exception to the warrant requirement, police officers may seize property without a warrant if they are “lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and the officers have a lawful right of access to the object.  United States v. Reyes, 283 F.3d 446, 468 (2d Cir. 2002). Here, the Government argues that the plastic bag was in plain view.   During oral argument, the Government maintained that the officers’ testimony reflected that the entire plastic bag was in between the “cheeks” of defendant’s buttocks and that no portion of the bag was inside defendant’s body cavity. The Government’s interpretation of the facts is not supported by the hearing testimony.  The officers testified that they saw only the end or a small portion of the plastic bag protruding or “sticking out” from defendant’s rectum. Vidal testified that prior to retrieving the bag he only saw a piece of the bag, that he did not know “how far it went in” or “how much of the bag was in defendant’s anal cavity.”  Robinson testified that he did not see the entire bag, that he did not see the “cluster”2, and that he did not know if the portion he was unable to see was inside defendant’s anal cavity.  Robinson testified that he smelled feces and that he believed defendant was “stuffing”, both of which suggests that the bag had been inserted in defendant’s anal cavity.  While Robinson testified that the multi-tool was not inserted in defendant’s body, the testimony from both officers reflects that a tool was used to “pull” or remove the bag. The Court finds, based upon all of the testimony, that the plastic bag containing the controlled substances was inside plaintiff’s anal cavity.  Only a portion of the bag was protruding from defendant’s body and visible to the officers.  Therefore, the officers’ removal of the bag constituted a body cavity search and not a plain view seizure of contraband.  See Gonzalez v. City of Schenectady, 728 F.3d 149 (2d Cir. 2013) (“[A] manual body search occurs when the police put anything into a suspect’s body cavity, or take anything out.”)

Moreover, the fact that a portion of the bag was visible and that officers had probable cause to believe it was contraband does not justify a warrantless search under these circumstances.  Officers were not faced with a situation where a bag of drugs fell out of a defendant’s pocket or was observed on the floor or seat of a car during a traffic stop.  The bag of drugs here was removed from defendant’s body.  The Court finds that this is not the type of scenario that the plain view exception to the warrant requirement was intended to cover. Further, the Fourth Amendment requires the Court to balance the need for the search against the invasion of personal rights, including the scope of the intrusion and the manner in which it was conducted.  Here, the level of intrusion was extremely high.  People v. More, 97 N.Y.2d 209 (2002) (describing body cavity searches as “invasive” and “degrading” and “at least as intrusive as blood test procedures.”).  On balance, the need for an immediate retrieval of the bag is not apparent.  As explained further below, officers could have secured the evidence by detaining defendant and obtaining a search warrant.

The officers were not presented with exigent circumstances.

Next, the Court finds that the officers were not faced with an exigency or emergency situation which prevented them from obtaining a warrant prior to proceeding with the search. In Schmerber v. California, a driver was arrested at the hospital following his involvement in a motor vehicle accident, based upon probable cause that he was intoxicated at the time of crash. 384 U.S. 757, 770-71 (1966). An officer directed a blood sample to be taken absent a warrant or the driver’s consent. Id. at 758-59. The Supreme Court found that the driver’s Fourth Amendment rights had not been violated because the officer was confronted with exigent circumstances, namely the dissipation of alcohol in the bloodstream over time, and “the delay necessary to obtain a warrant…threatened the destruction of evidence.”  Id. at 770-71.  In reaching this conclusion, the Supreme Court cautioned that “[s]earch 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. at 770 (emphasis added).

Unlike the circumstances faced by the officers in Schmerber, no such emergency existed here. There is no indication in the record that the evidence was in danger of being lost or destroyed.   Defendant had been seized by the officers.   He could have been detained for a short period of time needed to obtain a warrant and conduct a more thorough search. In addition, there was no testimony or evidence that the plastic bag was broken, leaking or that the location of the narcotics was likely to endanger defendant’s health or safety in the time it would have taken for officers to obtain a warrant.

Instead, the Court finds the matter to be analogous to the New York State Court of Appeals decisions in People v. Hall, 10 N.Y. 3d 303 (2008) and People v. More, 97 N.Y.2d 209 (2002).3  In Hall, a defendant was arrested after he was observed engaging in a drug transaction.  10 N.Y. 3d at 306.   He was transported to a holding cell where officers.  The Court recognizes that decisions by the New York State Court of Appeals regarding the interpretation of federal constitutional law are not binding precedent. However, the New York State Court of Appeals decisions cited herein dealt specifically with Fourth Amendment challenges in circumstances that were highly analogous to this matter and the Court finds their reasoning and holdings to be very persuasive. The Court notes that neither defendant nor the Government cited a federal case that was directly on point, nor did the Court find a directly analogous case from the Second Circuit or other courts in this district, through its own research.

instructed him to remove his clothes.  Id.  Officers then “observed a string or piece of plastic hanging out of defendant’s rectum.” Id. The officers removed the object, a plastic bag containing crack cocaine, without defendant’s consent and without obtaining a search warrant.  Id.  The Court of Appeals found that the officers’ actions violated the Fourth Amendment since, “the removal of an object protruding from a body cavity, regardless of whether any insertion into the body cavity is necessary, is subject to the Schmerber rule and cannot be accomplished without a warrant unless exigent circumstances reasonably prevent the police from seeking prior judicial authorization.”  Id. at 311.  The Hall Court noted that “there was no testimony that the drugs were in imminent danger of being destroyed, disseminated or lost, or that defendant was in medical distress.”  Id. at 312-13. Similarly in More, the Court of Appeals held that a body cavity search following a defendant’s arrest for drug possession, during which officers observed the outer portion of a plastic bag protruding from defendant’s rectum, was unreasonable and invalid under the Fourth Amendment. 97 Y.2d at 212.  There again, the Court found no evidence of exigent circumstances to justify dispensing with the warrant requirement in the context of body cavity searches:

“Notably, no police officer testified that, despite the available means of incapacitating defendant and keeping him under full surveillance, an immediate body cavity search was necessary to prevent his access to a weapon or to prevent his disposing of the drugs…[n]or was there any evidence the police were concerned that the drugs—which were wrapped in plastic—could have been absorbed into defendant’s body.” Id. at 214.

Likewise here, no exigent or emergency circumstances justified the officers’ warrantless body cavity search.  Defendant was not in physical danger and was under the control and custody of Vidal and Robinson, who had the right and ability to detain him and obtain a search warrant. The failure to do so violated defendant’s Fourth Amendment right to be free from unreasonable searches and seizures.  See United States v. Ford, 232 F. Supp. 2d 625 (E.D. VA 2002) (officer’s actions in conducting a “full-blown body cavity search” on the George Washington Parkway during a traffic stop, based on defendant’s statements that he smoked marijuana and the fact that defendant was “clinching his buttocks”, violated the Fourth Amendment where there was no testimony that defendant “was attempting to destroy evidence, or that he possessed a weapon or some means to subvert the legal process”).

The search incident to a lawful arrest exception does not apply.

The Government also argues that the search was justified because it was incident to a lawful arrest.   It is noted that defendant was not arrested until after the officers removed the plastic bag and discovered the controlled substances.  See Smith v. Ohio,

494 U.S. 541, 543 (1990) (for the search incident to a lawful arrest doctrine to apply, officers must have probable cause to arrest a suspect and the doctrine cannot be used to justify an arrest based solely on the fruits of an otherwise unlawful search).  Here, the Government argues that, at the time of search, officers had probable cause to arrest defendant for false impersonation based upon the answers he gave to Vidal regarding his name and date of birth.

Even if the Court were to conclude that the search was performed incident to a lawful arrest, Vidal and Robinson still needed either a warrant or probable cause combined with exigent circumstances to remove the drugs from defendant’s body cavity. Schmerber, Hall and More all involved bodily invasive searches following the arrest of a defendant and, in each case, it was concluded that a warrant was required absent exigent circumstances.  In Schmerber, the Supreme Court expressly rejected the argument that officers were permitted to obtain the blood sample as part of the search incident to the driver’s lawful arrest.  384 U.S. at 769.  The Supreme Court noted that justification for a search incident to an arrest has “little applicability with respect to searches involving intrusions beyond the body’s surface.”  Id. at 769-70.  See also More, 97 N.Y.2d at 209 (warrantless body cavity searches, even incident to a lawful arrest, are not permissible absent exigent circumstances); Hall, 10 N.Y. 3d at 311 (“It is important to emphasize that visual cavity inspections and manual body cavity searches cannot be routinely undertaken as incident to all drug arrests or permitted under a police department’s blanket policy that subjects persons suspected of drug crimes to these procedures.”); United States v. Fowlkes, 804 F.3d 954 (9th Cir. 2013) (finding that removal of “unidentified object of unknown size” from defendant’s rectum during a jail intake procedure was unreasonable under the Fourth Amendment where officers did not follow jail’s policy for conducting body searches under sanitary conditions and recognizing the interest in bodily integrity as implicating “the most personal and deep rooted expectation of privacy”).

For these reasons, the Court finds that the search of defendant on December 17, 2016 was undertaken in violation of the Fourth Amendment and recommends that the motion to suppress the evidence seized be granted.

SO ORDERED.

Dated: October 19, 2018

Buffalo, New York

/s/ Michael J. Roemer

MICHAEL J. ROEMER

United States Magistrate Jud

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