Opinion
# 2017-041-501 Claim No. 122825
03-02-2017
JAMES RUSSELL v. THE STATE OF NEW YORK
LAW OFFICES OF ELMER ROBERT KEACH, III, PC By: Elmer Robert Keach, III, Esq. Maria K. Dyson, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General
Synopsis
Claim alleging that defendant New York State Police conducted illegal roadside search of motorist stopped for traffic violation is dismissed after trial where evidence showed that search was based upon probable cause and was reasonable in scope, manner and time.
Case information
| UID: | 2017-041-501 |
| Claimant(s): | JAMES RUSSELL |
| Claimant short name: | RUSSELL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122825 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | LAW OFFICES OF ELMER ROBERT KEACH, III, PC By: Elmer Robert Keach, III, Esq. Maria K. Dyson, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
James Russell (claimant), while driving eastbound on I-90 in the City of Albany on April 23, 2013, was stopped and ticketed at approximately 4:30 p.m. by a New York State Police Trooper for a violation of the Vehicle and Traffic Law, operating a motor vehicle while using a portable electronic device. At trial of the claim filed by Mr. Russell, both parties agreed without dispute that Trooper Eric Terraferma stopped claimant's vehicle and that claimant had been driving while holding his cell phone in his right hand. Claimant and his passenger, then girlfriend Ashlie Hudson, were the only occupants of claimant's vehicle.
Trooper Terraferma and claimant had three separate roadside conversations before claimant was asked to exit his car. The trooper asked claimant about his travels and his destination and further asked claimant for his vehicle registration and driver's license. Some portions of these conversations (with audio and video) were recorded by claimant, using his cell phone. Between these conversations, Trooper Terraferma returned to his patrol car twice to run claimant's license and vehicle registration, begin creating paperwork about the traffic stop and to make radio and telephone transmissions seeking back-up units, including seeking a female trooper for the express purpose of searching Ms. Hudson.
Trooper Terraferma testified at trial that he sought to have Ms. Hudson searched, as he himself intended to search claimant, because he had smelled the odor of marijuana emanating from the claimant's car upon first approaching the vehicle.
During the third roadside conversation, claimant was asked to exit his vehicle, which he did, and Trooper Terraferma then began a roadside search of claimant at the driver's side rear of claimant's car, the side of the car closest to traffic. Trooper Terraferma maintained his body between claimant and I-90 traffic at all times during this search, first having claimant face him (and face traffic, although Trooper Terraferma's body remained between claimant and traffic), and then having claimant turn his back to the traffic. Trooper Terraferma, the only trooper then on the scene, conducted this search by patting claimant head to toe on the outside of his clothing, including the inner side of claimant's pant legs, and by putting his hands in claimant's pants pockets. Trooper Terraferma explained at trial that he was searching for contraband (i.e. marijuana) potentially hidden on claimant's person.
This search, referred to at trial by the parties and the Court as Search 1, forms part of the basis for the amended claim brought by Mr. Russell. Claimant testified at trial that during this search Trooper Terraferma "multiple times," "grabbed" and "squeezed" his genitalia, to which he verbally objected. Trooper Terraferma, acknowledging that claimant did so object, testified that he never intentionally manipulated claimant's genitalia and that at one point in the search, he detected what he thought might be marijuana - - "I thought I felt an object inside the gap between his pants and his body that was not his genitalia" (Trial Transcript [hereafter, TT], p 320). No part of Search 1 was video recorded on claimant's cell phone.
Concerned for his safety after claimant had physically reacted to this search, and further concerned that claimant's physical movements were an attempt by claimant to evade the detection of contraband, Trooper Terraferma moved claimant to the other side (away from traffic) of their stopped vehicles and conducted a second search (Search 2), as claimant was slightly bent at the waist at the hood of Trooper Terraferma's patrol car. This search, also observed by newly arrived Trooper Jason Meyer, was video recorded on claimant's cell phone by Ms. Hudson, still seated in claimant's car. At all times during this search, claimant's body was shielded from passing traffic by the interposed patrol car.
Leaving aside, for the moment, the testimonial differences concerning the specific manner in which this second search was conducted, the parties do not disagree that while claimant was bending at the waist at the patrol car hood (facing traffic, his back not visible to passing traffic), Trooper Terraferma drew claimant's undergarment waistband back, looked down upon claimant's now uncovered buttocks and then bent over to visually observe whether claimant had any contraband held between his buttocks. Trooper Terraferma, after making these visual observations, released claimant's waistband.
Subsequently, a female trooper, Trooper Shannon Istad, conducted an outside-the-clothing, bladed hand search of Ms. Hudson, and Trooper Terraferma conducted a search of claimant's vehicle. Neither the search of claimant or of Ms. Hudson, nor the search of claimant's vehicle, detected the presence of any weapons, marijuana or any other contraband. The claimant was then issued a citation for the described vehicle and traffic infraction and the encounter ended.
Claimant filed and served an amended claim on May 1, 2014, alleging, inter alia,
"Due to the negligent and/or intentional actions of the State of New York, its agents, servants or employees, including Trooper Terraferma and the unknown male NYS Trooper, who, while acting in the course of their employment, conducted an illegal strip search on Claimant in public. Claimant has suffered physical injuries and emotional distress. The actions of Trooper Terraferma and the unknown male NYS Trooper substantiate claims for assault, battery, intentional tort, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent supervision and/or retention of employee, res ipsa loquitor, and prima facie tort. Those claims are in addition to the obvious violation of Claimant's rights under Federal civil rights statutes and the United States Constitution."
Trial of the claim was conducted July 12-13, 2016.
Although the amended claim briefly refers to causes of action founded in negligence, claimant offered no trial proof other than evidence purporting to show that defendant committed an intentional tort.
Claimant alleges, among other theories of recovery, that the subject search constituted the tort of battery. Goff v Clarke (302 AD2d 725, 726 [3d Dept 2003]) explains that: "A [claimant], to recover damages for battery, must prove that there was bodily contact, that the contact was offensive . . . and that defendant intended to make the contact." The applicable law provides that the existence of probable cause for the search would serve as a defense to a cause of action for battery in connection with that search, absent evidence that the force used, or the manner of the search, was excessive (see Akande v City of New York, 275 AD2d 671, 673 [1st Dept 2000]).
With respect to whether claimant's federal constitutional rights were violated, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; see Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
Although not specifically pled in the claim, claimant's proof at trial arguably supports a cause of action under the New York State Constitution, Article 1, Section 12, which states, in part, as follows:
"The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In Brown v State of New York (89 NY2d 172, 188 [1996]), the Court of Appeals made clear that: "[A] cause of action to recover damages may be asserted [in the Court of Claims] against the State for violation of the . . . Search and Seizure [Clause] of the State Constitution."
Where a claimant's state constitutional right to be free from an unreasonable search is allegedly violated and no alternative remedy is available to fully protect or compensate a claimant for such violation, a tort cause of action for money damages is cognizable (Martinez v City of Schenectady, 97 NY2d 78 [2001]).
The Court of Appeals has explained that "[t]he language of [Article I,] section 12 imposes a duty regulating the conduct of police officials. It is consistent with the search and seizure provisions found in the Federal Constitution and the Constitutions of other States" (Brown, 89 NY2d 172, 191 [1996]). Therefore, although the cases cited by the parties in their post-trial briefs based on federal constitutional law in federal criminal proceedings are not binding upon the Court in this state common law civil action, to the extent the cited federal constitutional criminal cases offer general guidance, the Court has considered them. The Court has similarly considered the state constitutional law holdings in the state criminal cases cited by the parties.
The parties agree that a motorist stopped for a violation of the Vehicle and Traffic Law may not be subjected to a warrantless search unless "there are reasonable grounds for suspecting that . . . there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction" (People v Marsh, 20 NY2d 98, 101 [1967]). Probable cause is found where the officer has a "reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" (People v Bigelow, 66 NY2d 417, 423 [1985]). Specifically, "[w]here a motorist is lawfully stopped for a traffic infraction, and the officer smells the odor of marijuana emanating from the vehicle, probable cause exists for a search of the vehicle and its occupants so long as the officer is qualified by training or experience to recognize its distinctive odor" (Gibson v State of New York, UID No. 2014-015-586 [Ct Cl, Collins, J., August 26, 2014]; see People v Chestnut, 43 AD2d 260 [3d Dept 1974], affd 36 NY2d 971 [1975]; People v Cuffie, 109 AD3d 1200 [4th Dept 2013], lv denied 22 NY3d 1087 [2014]).
The search of the claimant's person must be reasonable in scope and manner and, to the extent possible, the search should be conducted in a manner designed to avoid undue embarrassment to claimant, without undue force and by an officer or officers of the same gender as the claimant (People v Hall, 10 NY3d 303, 312 [2008]). In Bell v Wolfish (441 US 520 [1979]), the Supreme Court, at 559, explains that the reasonableness of a bodily search is assessed by "balancing . . . the need for the particular search against the invasion of personal rights that the search entails. [Hence, to pass constitutional muster,] [c]ourts [are required 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."
Whether the claim is considered as an alleged battery or a state constitutional tort alleging an unlawful search, the core issue raised at trial is the same: Whether Search 1 and Search 2 of claimant by Trooper Terraferma were reasonable under the totality of the circumstances.
Claimant and Ms. Hudson testified for claimant at trial, and the three involved troopers testified for defendant. The most significant trial testimony was provided, unsurprisingly, by claimant and by Trooper Terraferma, although Trooper Meyer was present for, but did not take part in, Search 2 of claimant. Exhibits 9.1 to 9.7, a series of audio/video recordings (of varying lengths) made on claimant's cell phone, which documented portions of the April 23, 2013 encounter, additionally provided probative value. Of these, Exhibits 9.2, 9.3. 9.5 and 9.7 are the only such exhibits with more than de minimis value to the claim. Exhibit 9.5 records, from a distance and from the inside of claimant's car, Search 2 of the claimant.
Claimant testified that while driving eastbound on I-90 on April 23, 2013, he had his cell phone in his right hand, listening to music programmed to his phone and transmitted through his radio using bluetooth technology. As a result, Trooper Terraferma undertook a traffic stop of claimant.
Claimant testified that upon being unable to produce his vehicle registration for Trooper Terraferma when first pulled over, the trooper "got mad and angry- - [h]e started talking to me aggressively" (TT, p 33). Claimant's testimony concerning Trooper Terraferma's demeanor is belied by Exhibits 9.2 and 9.3, which recorded the initial conversations and the exchange of information between claimant and the trooper. At no point during these exchanges did Trooper Terraferma look or sound angry, or speak in a raised or angered voice to claimant, other than to speak over the loud rush of passing traffic.
The trooper asked claimant to exit the car and began Search 1. Claimant described this search as "aggressive" and that Trooper Terraferma "started searching harder" and that the trooper repeatedly grabbed his genitalia, to which claimant physically reacted and verbally objected. Claimant testified that this search was done on the driver side rear portion of his car, with the trooper between claimant and passing traffic. He further testified that this search was conducted over his clothing and that the trooper had also grabbed his genitalia when he placed his hands in claimant's pants pockets. The claimant related that Trooper Terraferma grabbed and squeezed his genitalia "multiple times" during this search.
Claimant was then directed to the non-traffic side of the trooper's patrol car for Search 2. This search was recorded and is Exhibit 9.5. The claimant described Search 2 as follows:
1. "And then he pulls my pants down, and pulls my boxer briefs down, and puts his hand on my butt and move them to the side" (TT, p 73);
2. "He pulled my pants down, and he pulled my underwear down to like, see underneath, and then he pushed - - when he pushed my butt apart, and then after that, he just snapped it back and let it go" (TT, pp 74-75); and,
3. "I felt his hands. I didn't feel leather gloves. I felt bare hand touch my buttock. I didn't feel any gloves" (TT, p 76).
After Search 2 and subsequent to Trooper Istad's search of Ms. Hudson and Trooper Terraferma's search of claimant's car, claimant was issued a traffic ticket and the encounter ended.
Upon cross-examination, claimant conceded that although he was wearing a belt that day, his belt was never unbuckled, and that at no time were his jeans unbuttoned or unzipped. Claimant reiterated that he felt the trooper's bare hand on his buttock - - "He touched my buttock with his fingers and moved my buttock to the side to look into my buttock" (TT, p 125). He further elaborated:
"Q. Okay. How far were your pants pulled down?
A. Right underneath my buttocks.
Q. So somewhere between the top of your thigh and the bottom of your butt cheek?
A. Yup, yes.
Q. Okay. Where were your underpants?
A. When?
Q. When he - - when you said he was feeling your buttock?
A. They were down.
Q. They were also pulled down?
A. He pulled the underwear and the pants down, one motion.
Q. And then the second motion after he allegedly feels your buttock, he lets go of the underpants' -
A. Yes." (TT, p 126).
He further testified:
"Q. When you just testified that Trooper Terraferma took his one bare hand and was placing his bare hand on your buttock, you - - did you also indicate that he was trying to go in between the two cheeks?
A. He was spreading them clearly to look underneath, because I seen him when he looked underneath and did it at the same time." (TT, p 132).
Trooper Terraferma testified that upon detecting the odor of marijuana emanating from claimant's car, he determined that he would have the occupants and the vehicle searched. He did not, upon first stopping claimant, make his observations or intentions known to claimant, to safeguard against the possible concealment or destruction of evidence and to safeguard against possible flight. As a result of his intentions, he returned to his patrol car to begin preparing additional paperwork related to the traffic stop, to summon back-up units and to attempt to reach Trooper Istad to conduct the search of Ms. Hudson.
Trooper Terraferma testified there existed probable cause to search claimant and his vehicle, having detected the smell of marijuana. Trooper Terraferma also testified to uniformly wearing black neoprene search gloves when conducting a body search, "[f]or protection against bodily fluids, blood, pricks from needles, razor blades, dirt, as well as skin to skin contact" (TT, p 290).
When Trooper Terraferma endeavored to begin Search 1 of claimant, he observed that claimant's pants were lower than the visible waistband of claimant's underwear. Intending to specifically search for concealed marijuana, Trooper Terraferma testified to feeling an object between the gap in claimant's pants and claimant's body that he did not believe to be claimant's genitalia. He denied ever intentionally making contact with claimant's penis or scrotum. At trial, the trooper testified "it did not feel like I was touching either a penis or a scrotum" (TT, p 321), which claimant argues, contradicted, in part, his pre-trial deposition testimony that, "I thought I was feeling one of many things, either a - - it was either his scrotum, his scrotum and his penis, his scrotum and his penis and loose clothing, his scrotum, his penis and loose clothing, and a soft item of which drugs" (emphasis added) (TT, p 365). The Court notes the trooper's use of a qualifying term, "either," during his deposition testimony, in his effort to describe what he believed he was feeling during Search 1.
Trooper Terraferma also testified to interpreting claimant's verbal protestations and physical reaction to his search as "that he was avoiding having me continue the search, and that I possibly was in an area that he was concealing an item" (TT, p 322). Trooper Terraferma also expressly denied either squeezing or groping claimant's genitalia. Trooper Terraferma further testified that as a result of Search 1, claimant's pants moved slightly lower, that they were "about two to three inches lower than his waistband of his underwear" and that claimant's underwear remained in place (TT, pp 324-325).
Trooper Terraferma then moved claimant to the hood of his patrol vehicle to undertake Search 2. After claimant leaned over the hood of his patrol car, "then [I] took the right hand of mine, which had a glove on it, the waistband of his underwear was exposed by a few inches, I grabbed the waistband of his underwear, and I pulled it straight back" (TT, p 328). Trooper Terraferma, looking for contraband hidden in claimant's underwear, saw claimant's "butt cheeks" but did not observe any contraband.
The balance of Trooper Terraferma's direct testimony concerning Search 2 follows:
"Q. For how long had you kept Mr. Russell's underwear separate from his body?
A. Long enough for me to look straight down, see if there was anything underneath his butt cheeks, and let go, which probably took approximately two to four seconds.
Q. At any point in time, did you pull down Mr. Russell's pants?
A. No.
Q. At any time, did you pull down Mr. Russell's underpants?
A. No.
Q. Sir, did you ever put a bare hand on Mr. Russell's buttocks?
A. No.
Q. Sir, did you ever put a gloved hand on Mr. Russell's buttocks?
A. No.
Q. Sir, did you ever try to use your hand to manipulate between Mr. Russell's buttocks, between the two cheeks?
A. No.
Q. After you released Mr. Russell's underpants, where were Mr. Russell's pants?
A. His pants were on the bottom side of his butt cheeks.
Q. Where were his underpants?
A. His underpants were back on his body against his waist where they were the whole time.
Q. After you released the underpants waistband, what did you do next?
A. I basically directed him to sit on the guide rail.
Q. Before Mr. Russell went to sit, did you observe Mr. Russell do anything with regard to the movement of either the underpants or the movement of the pants?
A. Yes. He moved his hands towards his - - towards the waistband of his pants and adjusted them up.
Q. At any time during the search, did you pull down Mr. Russell's pants?
A. No.
Q. During the process of the search, had they fallen down from their original position when Mr. Russell left the vehicle?
A. I wouldn't say they fell down, but they moved down." (TT, pp 329-330).
. . . . . .
"Q. And the narrative is exactly what you testified in court here today, correct, with regard to what you were doing, why you made the stop, and then what you did in terms of the marijuana?
A. Yes.
Q. And you indicated the search of the occupants and vehicle were negative for evidence.
A. That is correct.
Q. When you had searched Mr. Russell when he was by the patrol car, and you had moved his - - the waist of his underpants. At any point in time, did you bend over to see if anything had fallen, or bend over for any purpose?
A. Yes.
Q. What was that, sir?
A. Actually to - - I had bent over to see everything I could by pulling the waistband of his underwear back in that area of the underwear to see if anything was hidden underneath, or in his butt checks (sic), as well as if anything was on the ground.
Q. Was there anything on the ground?
A. No.
Q. Was there anything in the butt cheeks?
A. Not that I saw.
Q. And by butt cheeks, you mean sticking out between the cheeks of the buttocks?
A. That is correct." (TT, pp 342-343).
Trooper Terraferma's testimony, in sum, was that during Search 2, in an effort to search for suspected contraband, he pulled the waistband of claimant's underwear back to view claimant's bare buttocks from above, and then bent over to view if claimant had concealed any contraband between his buttocks or dropped any contraband to the ground, all within a period of between 2 to 4 seconds, before releasing claimant's waistband. Exhibit 9.5 corroborates Trooper Terraferma's testimony regarding the manner in which Search 2 was conducted.
While claimant denied smoking marijuana on the day of his traffic stop, he testified at trial to smoking marijuana "probably on a daily basis" (TT, p 22) and further allowed that on the day of his trial testimony he had smoked marijuana "maybe yesterday" (TT, p 23). He explained that his regular use of marijuana assisted him with ever-present and substantial pain from two separate double hip replacement surgeries and from other medical ailments, and further, that its use helped create an appetite that he often lacked otherwise. Given claimant's testimony concerning his habits and conditions and claimant's credibility issues detailed below, the Court finds that it is probable claimant had used marijuana on April 23, 2013. Further, even assuming that claimant had not used marijuana on April 23, 2013, it is reasonable to conclude that the odor Trooper Terraferma testified to having detected upon first approaching claimant's vehicle was the result of residual odors of previous use that had attached to claimant's person or clothing or of residual vehicle odors of previous use of marijuana in his car.
Due to Trooper Terraferma's credible testimony concerning his detection of the odor of marijuana on April 23, 2013, his observation of claimant operating the vehicle immediately prior to detecting the odor of marijuana and due to the logical, rational and reasonably undertaken responsive steps he thereafter took (calling for back-up, immediately beginning paperwork in his patrol car, conducting searches of claimant and of his vehicle and for also immediately calling for a female trooper to search Ms. Hudson), and further due to claimant's testimony describing his regular, if not daily, use of marijuana, the Court credits Trooper Terraferma's testimony regarding the detection of the odor of marijuana emanating from claimant's car on April 23, 2013. Accordingly, Trooper Terraferma had probable cause to search the occupants of claimant's vehicle and to search the vehicle itself (see Chestnut, 43 AD2d at 261: "The primary question to be decided on this appeal is whether the smell of marihuana smoke, with nothing more, can be sufficient to provide police officers with probable cause to search an automobile and its occupants. We hold that it can.").
Claimant's testimony and documentary evidence proved that claimant had been twice convicted of felonies, one for robbery and one for forgery, had been incarcerated during two separate state prison terms, had been strip searched while in state prison (which involves completely disrobing and being observed by a correction officer), had been convicted of the misdemeanors of obstructing governmental administration, criminal mischief and criminal impersonation, had served time in county jail, and had been extracted from a car and forced to lay on the ground by law enforcement at the point of a gun during a prior traffic stop.
Despite these prior experiences, claimant described his interaction with Trooper Terraferma on April 23, 2013, as compared with all of his other interactions with law enforcement, as being a "ten . . . on a scale of one to ten, one being the best and ten being the worse [sic]" (TT, p 91).
Troopers Meyer and Istad also testified, but given the delayed time of their respective arrivals on scene and the limited role each played during the April 23, 2013 encounter with claimant, the Court finds that, although their testimony was modestly relevant, it was not substantially probative of the claim's dispositive issues. Clearly, the resolution of the claim turns upon the testimony and credibility of Trooper Terraferma and that of claimant, augmented by Exhibits 9.1 to 9.7.
Stated simply, the testimony of Trooper Terraferma was substantially more credible than that of claimant. Further, Exhibit 9.5 demonstrates that Trooper Terraferma's description of Search 2 is a far more accurate description of that search than that of claimant's. Claimant's testimony describing Search 2 is simply unsubstantiated by Exhibit 9.5. Exhibit 9.5, plainly viewed, does not corroborate claimant's description of the search, nor does it depict an unreasonable search.
Other testimony that claimant provided further eroded the Court's confidence in claimant's credibility, including:
1. Claimant's description of Trooper Terraferma's demeanor during their initial conversations as angry, mad and aggressive;
2. Claimant's assertion that Trooper Terraferma conducted his searches bare handed, that he touched claimant's bare buttocks skin to skin and that he manually spread claimant's buttocks;
3. Claimant's assertion that Trooper Terraferma pulled his pants and underwear below his buttocks, while also testifying that his belt buckle was never undone or unbuckled, and that his pants and zipper were never unbuttoned or unzipped;
4. Claimant's testimony that despite his several serious experiences with state prison, local jail and with law enforcement, the encounter on April 23, 2013 was the worst of his life, a "ten;" and,
5. Claimant's description of the law enforcement encounter of April 23, 2013 as being the worst of his life, and his testimony that the encounter made him "feel very, very, very uncomfortable, weird, scared at the moment" and "want[ing] to cry" (TT, p 76), is belied, this time, by Exhibit 9.7, which records the trooper's return of claimant's documents, the issuance of the traffic ticket, the trooper's instructions to the claimant and the end of the encounter, an exchange during which claimant is not upset, angry or agitated, speaks in a calm voice to the trooper and responds to the trooper's instructions by saying "no problem," "yup," "ok," and in which he thanks the trooper twice.
The Court heard various witnesses refer to or describe a variety of searches, including the use of the terms "search," "pat search," "pat frisk," "pat down," "body search," "strip search," "visual body cavity inspection," "visual body cavity search," and "manual body cavity search." Each term is apparently intended to describe searches of escalating invasiveness, searches requiring various levels of law enforcement suspicion or justification and/or requiring prior judicial authorization and searches undertaken for different reasons and conducted under a variety of circumstances.
The Court makes the following findings based upon the trial evidence:
1. Trooper Terraferma had probable cause to search claimant and to search his vehicle;
2. No searches conducted by Trooper Terraferma required prior judicial authorization;
3. The searches conducted by Trooper Terraferma were brief in duration and, at all times, claimant was shielded from passing traffic by either Trooper Terraferma's body or by the trooper's interposed patrol car;
4. The searches conducted by Trooper Terraferma were appropriate to the purposes for which they were conducted;
5. Search 1 was conducted entirely outside of claimant's clothing.
6. Search 2, the search during which claimant's bare buttocks were briefly viewed by Trooper Terraferma, was conducted on the non-traffic side of I-90, with Trooper Terraferma's patrol car between claimant and passing traffic and with claimant's back facing away from passing traffic;
7. The relevant part of Search 2 lasted approximately 10 seconds and Trooper Terraferma observed claimant's bare buttocks for no more than a few seconds; and,
8. The searches conducted by Trooper Terraferma were reasonably conducted, and were appropriate in circumstance, scope, setting and duration.
Based upon the credible trial evidence and the foregoing observations and conclusions of the Court, the claimant has failed to prove his claim by a preponderance of the credible evidence.
The claim is, in all respects, dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
March 2, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims