Opinion
1812/10.
Decided September 22, 2010.
Cyrus R. Vance, District Attorney, New York County, One Hogan Place, New York, NY, By A.D.A. Sharon Applebaum, for the People.
John J. Carney, III, Esq., New York, NY, for the Defendant.
On August 31, 2010, this court conducted a Dunaway/Mapp/Huntley hearing. The People called two witnesses at the hearing, Detective Larry Maraj and Police Officer Mark McDonald, both of whom this Court found to be credible. The defense did not present any evidence.
Findings of Fact
On April 18, 2010, Detective Larry Maraj was working with a narcotics field team in the vicinity of 129th Street and Madison Avenue, in New York County. Det. Maraj, a New York City police officer for 10 years, had made approximately 200 drug related arrests during the course of his career, including previous narcotics related arrests in the area the team was targeting that day. Det. Maraj participated in numerous specialized training programs in street narcotics enforcement and drug trafficking while employed by the New York Police Department,
At about 4:28 p.m., while driving in an unmarked car, Det. Maraj received a radio transmission from Undercover Officer 03 ("hereinafter UC 03"). Det. Maraj had worked in the Narcotics Division with UC 03 for the preceding four years and recognized UC 03's voice over the police radio. UC 03 informed the team that a narcotics sale was about to take place. The transmission included descriptions of both the prospective buyer and seller. The putative buyer was described as a male black wearing a black jacket and grey skull cap. The potential seller was described as a male Hispanic or black wearing a burgundy jacket and burgundy shoes. The transmission indicated the men were on the corner of 129th Street and Madison Avenue.
Det. Maraj observed two men matching the descriptions at a phone booth on the corner of 129th Street and Madison Avenue. From his car, located about 15 to 20 feet away, the detective saw the men greet each other by slapping hands, after which they engaged in a brief conversation. Det. Maraj watched as the man in the black jacket, later learned to be Wallace McCollough, handed folded United States currency to the man in the burgundy jacket, later learned to be the defendant, Jose Crespo. In return, the defendant gave the man in the black jacket a small object. Det. Maraj was unable to describe the object due to its small size. The exchange resembled a second handshake. Based upon his training and experience, Det. Maraj believed a drug sale had occurred. After the exchange, the defendant and buyer walked in different directions. Det. Maraj informed the team he would stop the seller. At this time, UC 03 radioed "it's a positive," indicating to Det. Maraj that the undercover had also observed the exchange of money for an object believed to be narcotics.
Det. Maraj stopped the defendant in front of 40 East 129th Street, about ten car lengths from the corner of 129th Street and Madison Avenue. Det. Maraj called out "police" and ordered the defendant to turn around. When the defendant did so, Det. Maraj handcuffed him and frisked him for weapons. No weapons were found. Mr. Crespo asked the detective why he was being arrested. The detective responded that he was arresting Mr. Crespo for a "[n]arcotics sale" and informed him that he "would be doing a search of him." (August 31, 2010 Hearing Transcript at 19, line 7-8). The defendant responded: "Search me. I don't have anything." (Tr. 19, line 13). However, Det. Maraj did not search the defendant's clothing. Instead, Det. Maraj told Mr. Crespo he believed he had drugs secreted ". . . in his butt based on my experience. And I informed him that for every, you know, once I recover the drugs, I'll be charging him for every single one of the bags." (Tr. 39, lines 19-25). The defendant appeared "dismayed" but again denied having any drugs on him. (Tr. 19, lines 18-19). Det. Maraj told the defendant that if he did not produce the drugs, he would be strip searched at the precinct and "then I informed him, you know if he could save me the dignity of me having to look up there, just be a man about it and he then nodded and retrieved a quantity of narcotics from his rear area." (Tr. 20, lines 5-6) (Emphasis added). Det. Maraj acknowledged that his statements were intended to induce the defendant to give up the drugs he believed were concealed in the defendant's rectal area.
Det. Maraj described how the defendant, after nodding his assent, reached down the back of his pants into his buttocks area, and produced a ziploc baggy which contained nine smaller ziploc bags of crack cocaine, eight pink and one yellow. On cross-examination, Det. Maraj conceded what appeared to be an inconsistency between his sworn felony complaint, wherein he stated that he had recovered the drugs from the ground where he had observed the defendant throw them, and his hearing testimony. However, Det. Maraj explained that he would not have touched the bag directly, but instead he had the defendant place the baggies ". . . right on the ground right after he took them out of his butt." (Tr. 28, lines 1-2). Det. Maraj indicated that he used a napkin or piece of paper to pick up the drugs in order to avoid any direct contact. Thus, Detective Maraj reasoned, there was no inconsistency. After the defendant turned the narcotics over to Det. Maraj, he asked the detective "if we could work out something." (Tr. 31, lines 14-16).
At no time during the arrest at the scene did Det. Maraj read the defendant his Miranda rights. After the narcotics were recovered, Det. Maraj conducted a search of the defendant's person and recovered $39 and a cell phone from his clothing.
Mark McDonald, a police officer with the New York Police Department for over 13 years, the last six with the Narcotics Division, was part of the field team working with Det. Maraj on April 18, 2010. At about 4:28 p.m., Officer McDonald received the same radio transmission from UC 03 that was received by Det. Maraj. Officer McDonald received a subsequent radio transmission from Det. Maraj stating he had observed the men and was going to move in on them. Shortly thereafter, Det. Maraj radioed that a drug transaction had occurred, and transmitted where the buyer was walking. Officer McDonald saw the buyer approaching and arrested him on the corner of 128th Street and Madison Avenue. Officer McDonald's search of the buyer, Wallach McCollough, resulted in the recovery of two pink ziploc bags of crack cocaine and one glassine of heroin.
Arguments of the Parties
The People contend the statements the defendant made at the scene were made pursuant to a proper police investigation or, in the alternative, were spontaneously made, and thus, no Miranda warnings were required. Further, the People maintain that the defendant voluntarily removed the ziploc bags containing crack cocaine from his buttocks area.
The defense argues that once Mr. Crespo was under arrest, the questioning by Det. Maraj constituted a custodial interrogation intended to elicit incriminating responses. Defendant argues his statements must be suppressed because they were obtained in violation of his Miranda rights. Moreover, defendant maintains he removed the drugs in response to this interrogation in violation of Miranda and as a result of the detective's threats that he would be charged with additional offenses if he failed to cooperate.
Conclusions of Law
At a Dunaway/ Mapp hearing, when a defendant challenges the legality of a stop and seizure, the initial burden is on the People to go forward with evidence to demonstrate the legality of the police conduct. People v. Dodt, 61 NY2d 408, 415 (1984); People v. Berrios, 28 NY2d 361 (1971); People v. Malinsky, 15 NY2d 86 (1965). Once the People have met their initial burden, the defendant bears the ultimate burden of proving the illegality of such conduct. Berrios, supra, at 367.
Here, the People have met their burden to demonstrate the legality of the stop and arrest of the defendant. On April 18, 2010, Det. Maraj, an experienced police officer, with specialized training in narcotics sales, received a radio transmission from an undercover narcotics officer directing his attention to the defendant and another man whom the undercover believed were about to engage in a drug transaction.
Immediately thereafter, Det. Maraj personally observed Mr. Crespo and Mr. McCollough at the location indicated in the radio transmission, matching the transmitted physical descriptions. Det. Maraj observed Mr. McCollough hand the defendant United States currency. In return, the defendant handed Mr. McCollough an object so small it fit within the defendant's palm. Based upon his training and experience, Det. Maraj believed he had just witnessed a narcotics transaction.
These observations provided Det. Maraj with probable cause to arrest the defendant for a drug sale. Probable cause exists when a police officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed. People v. Bigelow, 66 NY2d 417, at 423 (1985); People v. McRay, 51 NY2d 594, at 602 (1980). CPL § 70.10(2) defines probable cause or "reasonable cause to believe that a person has committed an offense" as evidence or information which appears reliable and which discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Based upon Det. Maraj's personal observations of the exchange of money for a small object in a drug prone location, probable cause existed. Det. Maraj acted properly in placing the defendant under arrest and conducting a pat down of the defendant's person.
Mr. Crespo was in police custody once he was handcuffed and told he was under arrest. The burden is on the People to demonstrate, beyond a reasonable doubt, that the defendant's statements were voluntary, not the product of a custodial interrogation conducted without the administration of Miranda warnings, or the product of coercion. People v. Anderson, 42 NY2d 35 (1977).
Mr. Crespo's initial question asking the detective why he was being arrested was spontaneous, as it was not made in response to any questioning. The detective's response that the defendant was being arrested for a narcotics sale was proper. Informing a defendant of the arrest charge does not constitute an interrogation. People v. Rivers, 56 NY2d 476 (1982); People v. Lynes, 49 NY2d 286 (1980). In response, the defendant denied possessing any drugs. This was likewise a spontaneous statement, as the detective's response to the defendant's question regarding the arrest charge was not intended nor likely to elicit an incriminating response, and in fact, did not elicit an incriminating response. When Det. Maraj told the defendant he would be searched, this was not initially improper or likely to elicit an incriminating response. A police officer may search a defendant's outer clothing, incident to a lawful arrest, and informing a defendant that he is about to be searched in such a fashion would be part of a normal post-arrest procedure, prior to transporting a defendant to a police precinct.
However, this court concludes that the detective's statements from this point forward were intended to elicit admissions from the defendant.
It is well established that interrogations can take place without the posing of direct questions. The test to determine whether an interrogation or its functional equivalent has occurred is whether an objective observer, having the same knowledge concerning the suspect as the police officer, would conclude that the remark or conduct of the officer was reasonably likely to elicit an incriminating response. People v. Ferro, 63 NY2d 316 (1984), cert denied 472 US 1007 (1985); Rhode Island v. Innis, 446 US 291, at 301, fn.7 (1980) (the subjective intent of the police is only relevant with regard to whether or not the police should have known their words or actions were reasonably likely to elicit an incriminating response). In other words, the test is whether a defendant's statement can be said to have been triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant. People v. Lynes, 49 NY2d 286, supra.
In this case, Det. Maraj accused Mr. Crespo of concealing narcotics in his buttocks area and informed him that if he failed to remove the drugs himself, the detective would strip search him at the precinct. Det. Maraj told the defendant that if he made the detective "look up there" (tr. 20, line 4), descriptive of a visual body cavity search, the detective would file additional charges against the defendant, specifically, he would be charged with a separate felony count for each and every ziploc of drugs subsequently recovered.
These statements by Det. Maraj were both intended and likely to elicit an incriminating response. This court concludes that there was no legally permissible basis for Det. Maraj's continued questioning after he informed the defendant he was under arrest for a drug sale. The detective was not in fear for his personal safety nor was there any basis for the detective to fear for the public safety. Cf., People v. Burgos, 255 AD2d 199 (1st Dept 1998), lv denied 93 NY2d 851 (1999) ( Miranda not required when officer asked defendant, for safety purposes, if he had anything such as a needle or knife on him that might cut the officer who was about to conduct a valid patdown of the defendant). Accordingly, the failure to administer Miranda warnings prior to questioning Mr. Crespo, requires suppression. People v. Rifkin, 289 AD2d 262 (2d Dept 2001), lv denied 97 NY2d 759 (2002).
Both the defendant's nodding in assent, as well as his simultaneous production of the drugs, must be suppressed as they constitute "nonverbal admissions," that is, actions which convey information. It is well established that a defendant's response to custodial interrogation is not limited to verbal speech or writings, but also includes non-verbal acts. In Schmerber v. California, 384 US 757, at 761, fn. 5 (1966), the Supreme Court found the Fifth Amendment prohibition against compelling a person in a criminal case to be a witness against himself extended to non-verbal communications, indicating that: "A nod or headshake is as much a `testimonial' or `communicative' act in this sense as are spoken words." See, Fisch on Evidence (1977), § 759, "An act performed solely for the purpose of communicating, such as pointing or nodding, is equivalent to a verbal statement . . ." . See also, Matter of Terrance W., 251 AD2d 1004 (4th Dept), lv denied 92 NY2d 810 (1998) (finding statements include ". . . a statement made by another person who communicates nonverbally by sign language, gestures or nods"); People v. Pena, 23 Misc 3d 1105(A) (Crim Ct, NY Co 2009) (nod was a non-verbal admission that defendant stole property). Here, this court finds the defendant's nod and production of the drugs was a non-verbal admission. Unlike a defendant who nods or points to contraband which is thereafter seized by a police officer, here the defendant's non-verbal admission included production of the physical evidence.
Moreover, the defendant's nod and simultaneous production of the drugs was not only the product of a Miranda violation (Penal Law § 60.45[2][b][ii]), but also the product of traditional involuntariness. A confession, admission or other statement is involuntarily made, not only when obtained by the use or threatened use of physical force, but also when obtained "by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement." Penal Law § 60.45(2)(a). In People v. Maerling, 64 NY2d 134, at 140 (1984), the Court explained that statements obtained in violation of Miranda or a defendant's right to counsel, although inadmissible on the People's direct case, may be used for impeachment purposes. However, Maerling made clear that an involuntarily obtained statement may not be used at trial for any purpose.
Here, the defendant, "dismayed" by the detective's statements, admitted to possessing narcotics as a result of improper and undue pressure. Both the detective's statement to the defendant that he would increase the charges against Mr. Crespo if he failed to cooperate, as well as the detective's threat that if the defendant failed to remove the drugs, the police would conduct a strip search (which this court finds was not legally authorized, see, infra.), rendered the defendant's admission a product of traditional involuntariness. Defendant's subsequent statement, asking if they "could work out something" further demonstrates the defendant's belief that he would be subject to lesser penalties if he produced the drugs. Thus, his nodding and removal of the drugs from a private area of his body are inadmissible at trial for all purposes.
The defendant's subsequent statement, asking the detective "if we could work out something," although not made in response to a direct question, was the product of this custodial interrogation without any pronounced break, and is likewise suppressed. People v. Rifkin, 289 AD2d 262, supra.
Finally, this court concludes the defendant did not consent to a search beneath his clothing, and did not voluntarily relinquish his right to privacy when in response to the detective's initial statement informing him he would be searched, the defendant stated: "[s]earch me. I don't have anything." The Court of Appeals has instructed that "[w]hen a search and seizure is based upon consent . . . the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right." People v. Whitehurst, 25 NY2d 389 (1969).
Consent to search, a relinquishment of constitutional protection under both the Federal and State Constitutions, must be a free and unconstrained choice. People v. Gonzalez, 39 NY2d 122 (1976). One important factor in determining the voluntariness of consent is whether the consenter is in custody or under arrest. Id. at 128. Further, the fact that a defendant is handcuffed is considered a significant factor in determining whether his apparent consent was but a capitulation to authority. Submission to authority is not consent. Id. at 129. Here, the defendant was already in custody and handcuffed. Additionally, in this case, Det. Maraj had already informed the defendant he would be searched. Most importantly, even when a consent to search is obtained, the scope of such consent must be strictly construed.
In People v. Gomez , 5 NY3d 416 (2005), the Court of Appeals held that a motorist's consent to a search of his vehicle did not encompass the kind of extensive and destructive search subsequently conducted by the police. In Gomez, the Court found that a reasonable person would not have understood the officer's request to search the defendant's car to include the officer's subsequent act of prying a hole in the car's floorboard and gas tank with a crowbar. Gomez made clear that once a search goes beyond the objectively reasonable scope of a voluntary consent, a more specific consent is needed, absent independent legal cause to justify the search.
Here, it is clear that Mr. Crespo's initial statement: "Search me, I don't have anything," was at most, a consent to a search of his outer clothing, and not a consent to a strip search or a body cavity search. The statement was made prior to the detective conducting a search incident to arrest, the kind of search which would normally be performed at the scene of an arrest made on a public street. The detective admitted that when he subsequently told the defendant he would be subject to additional charges if he continued to deny he possessed drugs, the defendant became dismayed. Mr. Crespo did not retrieve the drugs until after the detective stated he would search Mr. Crespo's buttock's himself if he failed to cooperate.
See, People v. Mitchell , 2 AD3d 145 (1st Dept 2003) (finding that a strip search of Mr. Mitchell which had been conducted on the street, in full view of the public, after defendant sold drugs to an undercover officer was not reasonable, despite prior police observations of the handcuffed defendant fidgeting with his hands and moving them toward his buttocks, back, belt and rear pants pockets).
As stated in Schenckloth v. Bustamonte, 412 US 218, 228 (1973), ". . . the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For no matter how subtly the coercion was applied, the resulting consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed." Under the totality of the circumstances herein, the defendant's initial statement "Search me, I don't have anything" fails to meet the high standard necessary to find a voluntary consent to a strip search or a body cavity search.
Here, the defendant's ultimate production of the drugs was the product of official coercion, a yielding to overbearing official pressure, and not a voluntary choice. People v. Gonzalez, 39 NY2d at 123, supra. Thus, the defendant's production of the bag of drugs from a private area of his body was not the product of consent.
Based upon the violation of the defendant's Fifth Amendment rights, the ziploc bags of narcotics seized herein must be suppressed. Under the exclusionary rule, physical, tangible materials obtained during or as a direct result of a constitutional violation, are inadmissible at trial. People v. Stith, 69 NY2d 313 (1987).
The question remains whether the inevitable discovery doctrine applies to this evidence. The test for inevitable discovery is whether it has been demonstrated, by a very high degree of probability, that the evidence sought to be suppressed would inevitably have been discovered, irrespective of the initial wrong. Stith, at 318. The People are required to establish this very high degree of probability by demonstrating that the challenged evidence would have been uncovered through normal, standardized police procedures, independent of the tainted source. People v. Turriago, 90 NY2d 77 (1997).
Stith made clear that the inevitable discovery rule is inapplicable to primary evidence which is defined as the very "evidence illegally obtained during or as the immediate consequence of the challenged police conduct." Stith, at 318. On the other hand, secondary evidence is defined as evidence which would, by a very high degree of probability, have ultimately been discovered as a result of further police investigation, independent of the initial taint. Id. Secondary evidence need not be suppressed if it meets this test, even if obtained as a result of leads or information gained from the primary illegality, so long as it is demonstrated that the secondary evidence would inevitably have been discovered by untainted, independent police investigation. Id. at 318-319. The rationale for allowing the use of secondary evidence is that suppression of such evidence would not serve the intended purpose of the exclusionary rule, to wit, to deter unlawful police conduct.
In Turriago, after stopping the defendant's van for speeding, the police obtained his consent to search his vehicle and found the body of Fernando Cuervo in a steamer trunk in the rear of the van. Based upon the hearing court's finding that the police illegally obtained the defendant's consent, the Court of Appeals reasoned that the murder victim's body was primary evidence of the illegally obtained consent and was not admissible at trial. However, secondary evidence, such as defendant's later confession, was potentially admissible under the inevitable discovery doctrine. The Court of Appeals noted that: "the suppression court could have further found the existence of a very high degree of probability that the body of Cuervo would have been discovered through [an] inventory search and that, following the discovery, incriminating secondary evidence, i.e., evidence not obtained during or as the immediate consequence of the invalid consent search ( see, People v Stith, supra), would also have been obtained by the police." Turriago, 90 NY2d at 87.
Here, the baggy of drugs, like the victim's body in Turriago, is the primary evidence obtained as a result of the unlawful custodial interrogation. The defendant's retrieval of the narcotics from under his clothing was an integral part of his response to the detective's repeated exhortations that he produce the drugs. Det. Maraj acknowledged that the purpose of his questions was to convince the defendant to give up the drugs. Thus, the drugs are inadmissible at trial.
In any event, even if the narcotics were deemed secondary evidence, which this court does not find, the narcotics would still be subject to suppression. The People's evidence failed to demonstrate, by a very high degree of probability that the narcotics would have inevitably been discovered by proper police investigation and conduct, irrespective of the initial wrong. The inevitable discovery rule requires that the independent action the police would have subsequently undertaken to discover the same tangible evidence, must itself be legally permissible conduct.
Analysis of the case law on strip searches and body cavity searches demonstrates that Det. Maraj did not possess sufficient evidence to legally conduct a strip search of the defendant at the precinct. Furthermore, although the detective used the term "strip search" in his testimony, his description of the intended search, which included the phrase "looking up there," suggests that he planned to conduct a more intrusive search, what the law refers to as a visual body cavity search.
In People v. Hall , 10 NY3d 303 (2008), the Court of Appeals set forth the requirements which must be met before the police can conduct either a strip search or a body cavity search of an arrestee. Because of the extremely invasive nature of such searches, as compared to a search of a defendant's clothing and possessions incident to a lawful arrest, a higher standard must be met before a strip search or body cavity search may be undertaken.
In order to conduct a strip search, wherein the arrestee must disrobe so that a police officer can visually inspect the person's body, the police must have reasonable suspicion that the arrestee is concealing evidence underneath his or her clothing. Further, the search must be conducted in a reasonable manner. To advance to the next level, a visual body cavity search, wherein the police officer looks at the arrestee's anal or genital cavities without any physical contact or intrusion, the police must have a specific, articulable, factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity. Further, the visual inspection must be conducted reasonably, in a private setting. If an object is visually detected, or other evidence provides probable cause to believe an object is hidden inside the arrestee's body, a search warrant must be obtained prior to a manual body cavity search involving any penetration of the body cavity, unless exigent circumstances are demonstrated. Id. at 311, see also, People v. More, 97 NY2d 209 (2002).
In People v. Hall, supra, the Court explained that "[i]t 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 certain crimes to these procedures. There must be particular, individualized facts known to the police that justify subjecting an arrestee to these procedures." Id. at 311.
In People v. Mothersell , 14 NY3d 358 (2010), the Court of Appeals reiterated its pronouncement in Hall that visual inspections underneath an arrestee's clothing may not be undertaken in all drug arrests. The Court stated that "even where there is probable cause for an arrest, and a suspect has been arrested . . . there must, in addition to the predicate for the arrest, be grounds to justify the very significant intrusion of a strip or visual body cavity search. It is not enough that there is probable cause to suppose that a person possesses contraband or that pursuant to a warrant there may exist grounds for a non-strip search; where a strip search is to be performed, there must also exist particular, individualized facts known to the police that justify subjecting an arrestee to these procedures' ( 10 NY3d at 311), i.e. specific facts to support a reasonable suspicion that a particular person has secreted contraband beneath his or her clothes or in a body cavity." Id. at 367.
The kind of particular, individualized facts necessary to satisfy the Mothersell/Hall standard are demonstrated in People v. Harry , 63 AD3d 604 (1st Dept) , lv denied 13 NY3d 860 (2009). In Harry, the police observed the defendant for 30 to 35 minutes before placing him under arrest. During that time, the defendant engaged in three drug transactions. In each instance, the defendant was observed reaching inside his pants before engaging in hand-to-hand transactions. Additionally, after the defendant's arrest, while handcuffed in the back of the police car, the defendant was observed moving around, sliding up and down in his seat, and making movements with his hands as if attempting to either secret something in, or remove something from his pants. These facts, coupled with the arresting officer's experience with drug dealers who secreted contraband in their buttocks or groin area, provided the police with a specific, articulable basis to conduct a visual body cavity search. See also, People v. Hunter , 73 AD3d 1279 (3d Dept 2010) (defendant fidgeting and placing his hands down his back, together with information from a confidential informant that the defendant had a habit of carrying narcotics in his rectum provided reasonable suspicion for a strip search); People v. Clayton , 57 AD3d 557 (2d Dept 2008), lv denied 12 NY3d 852 (2009) (visual strip search proper where officer felt a small hard object under defendant's tail bone during a frisk, on the ride to the police station the defendant, known to secret contraband in his rectum, was observed wiggling around and placing his hands in the area where the officer had felt the hard object); People v. Barnville , 31 AD3d 271 (1st Dept 2006) (visual body search upheld where detective observed a woman hand money to the defendant, after which the defendant moved toward a building's doorway, looked furtively to the left and right, reached into the back area of his pants and retrieved a small object, then returned to the woman and handed her the object).
None of individualized factors necessary to conduct a valid strip search or visual body cavity search under Mothersell/Hall existed here. Detective Maraj's observations and the information he possessed failed to support a reasonable suspicion that the defendant was concealing narcotics underneath his clothing. In this case, Det. Maraj did not observe Mr. Crespo engaging in prior drug transactions, reaching inside his pants, or fidgeting or adjusting his clothing in any way. Nor did he have any information that the defendant had entered a building or any other private area where he could have reached into his buttocks area to retrieve drugs prior to the exchange. In essence, Det. Maraj did not see the small object the defendant gave to the buyer anywhere other than in the defendant's hand. Additionally, the frisk of the defendant had not revealed anything that felt like a hard object in the defendant's buttocks or groin area.
The detective's sole basis for believing the defendant had drugs concealed within his rectum or in his rectal area was his knowledge that drug dealers sometimes conceal drugs in this fashion. This single factor was insufficient to supply Det. Maraj with the specific, individualized facts required to support reasonable suspicion. Law reporters are replete with examples of the many places, other than inside their pants, in which drug dealers conceal stashes of drugs. Det. Maraj had no more reason to believe the defendant had drugs concealed in his buttocks area than in any of the numerous other places drug sellers have been known to secrete drugs when engaged in street narcotic sales. See, e.g., People v. Ramirez-Portoreal ( Mims), 88 NY2d 99 (1996) (in a trash pile); People v. Ramirez-Portoreal ( Sanchez), 88 NY2d 99 (1996) (the underside of a vehicle); People v. Brown, 97 NY2d 500 (2002) (on a confederate or "stash man" positioned nearby on the street or inside a building); People v. Tucker , 25 AD3d 382 (1st Dept), lv denied 7 NY3d 764 (2006) and People v. Susanol, 276 AD2d 345 (2d Dept 2000) , lv denied 96 NY2d 807 (2001) (in mailboxes); People v. Nickens, 121 AD2d 199 (1st Dept 1986), app denied 72 NY2d 960 (1988) (in a phone booth).
Because the defendant, rather than the detective, removed the drugs from underneath his clothing, the exact location where the bag of drugs was concealed was never ascertained; that is, whether it was within an area above the defendant's rectum, or whether it was partially or fully within a body cavity. The detective's testimony merely indicated that the defendant placed his hands down the back of his pants and thereafter produced the baggy. Thus, even if a strip search would have been appropriate, a conclusion this court is not prepared to reach, there is no factual basis to support a conclusion that the drugs would have been observable during such a strip search. A visual body cavity search, requiring a defendant to squat while a police officer looks within a defendant's internal body cavities, might well have been necessary before the bag was detectable.
Thus, the evidence does not support the argument that the police would have inevitably discovered the drugs during a strip search, both because the legal grounds for such a search have not been demonstrated, and because it is not evident that a strip search would have revealed the contraband. Consequently, this court holds that the People's evidence failed to support the necessary factual predicate to find that a strip search could have been legally conducted. There were no particular, individualized facts presented which would have demonstrated, by a very high degree of probability, that the police would have been legally entitled to conduct either a strip search, much less a visual body cavity search, of Mr. Crespo.
Finally, the search of the defendant's pockets, resulting in the seizure of money and a cell phone are admissible as a search incident to the defendant's arrest. Although the improper questioning preceded the search incident to arrest, the money and phone are not the primary evidence, nor are they tainted fruit of the questioning. The detective would inevitably have searched the defendant's clothing and would have retrieved the money and cell phone, absent the improper custodial interrogation. Thus, the recovery of the money and cell phone was independent and unrelated to the prior improprieties.
Conclusion
The defendant's motion to suppress his statements and the drugs recovered from his person is granted. The defendant's motion to suppress money and a cell phone recovered from a search of his outer clothing, incident to arrest, is denied
This constitutes the decision and order of the court.