Rectum? It damned near killed 'em.
People v Hall, 2007 NY Slip Op 01015 [available here]
After his arrest for selling drugs, defendant was taken back to the police station, placed in a detention cell and strip searched. Here's how Justice Saxe (writing for the unanimous Court) describes what happened next:
Once defendant was completely disrobed, Spiegel asked him to squat by bending at the knees. As the defendant did so, Spiegel saw a string hanging from defendant's rectum and called Burnes into the cell. Burnes entered the cell and, in a loud voice, instructed defendant to remove the string. When defendant would not comply, Burnes and Speigel grabbed both of defendant's arms and brought him to the ground so that he was in a bent-over position; Burnes then pulled the string out of the defendant's rectum, recovering a plastic bag containing rocks of crack wrapped in plastic wrap.
(Hall, 2007 NY Slip Op 01015.)
No mention whether defendant was asked to squeal like a pig. The trial court suppressed the evidence as the product of a cavity search "unjustified by exigent circumstances", citing to Schmerber v California (384 US 757  and People v More, 97 NY2d 209 .) The First Department disagreed, holding that the initial strip search was valid because the police had a "'reasonable suspicion that the arrestee [wa]s concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest." (Hall, 2007 NY Slip Op 01015.) On what grounds could the police reasonably suspect that the person they just arrested for selling drugs had crack in his rectum, you ask? The arresting officer testified that "'a good majority' of the people arrested 'usually' place drugs between their buttocks." (Id.) Once the strip-search was conducted, "the observation of the protruding string, during the course of the procedure, justified the immediate actions taken to physically retrieve the secreted narcotics." (Id.)
Leaving aside the self-serving nature of the cop's testimony (shouldn't police agencies be required to keep records about how many drug suspects come in with contraband in their bums so we don't have to rely on suspiciously selective police anecdotes?), the First Department had to overcome the Court of Appeal's decision in People v More to uphold this rectum search. In More, the police entered an apartment and saw the defendant sitting on the couch with his girlfriend; what appeared to be crack-cocaine and a crack pipe were on a table nearby. (More, 97 NY2d 209, 211 .) The police arrested the defendant, took him into a bathroom, and strip-searched him. Id.) Just like in Hall, once defendant's nether-regions were exposed, the police saw something protruding from defendant's rectum. The item turned out to be a plastic bag of crack. (Id.)
The Court of Appeals specifically held that the United States Supreme Court decision in Schmerber v California, dealing with the constitutionality of a blood draw, applied to body cavity searches. The Court noted that, in Schmerber, "the Supreme Court determined that seizures involving intrusions beyond the body's surface cannot be justified simply because they are made incident to a lawful arrest." (More, 97 NY2d at 212-213.) "Rather, there must exist a 'clear indication' that desired evidence will be found. [...] Moreover, even where there is a 'clear indication' that incriminating evidence will be retrieved if the bodily intrusion is permitted, '[s]earch warrants are ordinarily required for searches of dwellings, and absent an emergency, no less should be required where intrusions into the human body are concerned." (More, 97 NY2d at 211 [emphasis in original].)
The First Department dealt with the first requirement of More, finding that there was a "clear indication" that evidence would be found secreted in the defendant's bum based on the cops testimony (i.e. that most drug dealers keep their stash very close to home). Pretty flimsy, but at least the First Department acknowledged the "clear indication" requirement of More. But the First Department's decision conveniently ignores the additional requirement of More--that even where a "clear indication" suggests that evidence will be found, a body cavity search is improper absent a warrant unless exigent circumstances exist justifying the warrantless search. (More, 97 NY2d at 211.) Here's what More says:
Even assuming that the extraction of the drugs satisfied all of Schmerber's other requirements, the People failed to offer any evidence of exigent circumstances to justify dispensing with the warrant requirement--that a neutral, detached magistrate determine that the search is justified and will be conducted in a reasonable manner. This record is devoid of any evidence from which an officer 'might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant' posed a threat to the officer's personal safety or of the destruction of the evidence. 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 prevent his disposing of the drugs. Nor was there any evidence the police were concerned that the drugs--which were wrapped in plastic--could have been absorbed into defendant's body. The absence of exigent circumstances dictates the conclusion that the body cavity search here was unreasonable.
(Id at 214.)
Given the facts of Hall--where the defendant had already been arrested and was being held in detention cell at the time of the strip search--it is hard to even imagine an argument for an exigency that would justify dispensing with the warrant requirement. Defendant was being kept in a small cell and thus subject to full surveillance, and the drugs certainly weren't going to dissolve into defendant's body (if drugs kept in one's rectum were absorbed into the body, what right-thinking drug dealer would keep them there?). There was absolutely no reason not to get a warrant in Hall--let the police tell a judge anecdotes about dealers routinely secreting drugs in body cavities, and let the judge decide if that is a sufficient basis for justifying a strip search. And a judge here could have dictated a somewhat more civilized manner of conducted the strip search than the violent "tackle and pin" method engaged in by the officers in Hall. Rather than deal with the compelling logic of More, the First Department drew an artificial distinction--the search in More happened in the bathroom at the crime scene, and the search in Hall took place in a detention cell at the police station. But how does that fact possibly change the exigency analysis, except to make the police officer's failure to obtain a warrant even more inexplicable? Here's hoping the Court of Appeals grants leave in this case and reasserts the More holding.
Fingerprint comparison reports not testimonial under Crawford v Washington
People v Rawlin, 2007 NY Slip Op 00998 [available here]
In a decision proving that the First Department is trying to give me an aneurysm, the Court holds in Rawlin that a fingerprint examiner's reports "qualified as nontestimonial business records, and thus did not violate defendant's right of confrontation." (Rawlins, 2007 NY Slip Op 00998.) Of course, the Court of Appeals has recently held that the mere fact that a document is a "business record" does not answer the question of whether a document is "testimonial" under Crawford; the First Department distinguishes Pacer as follows:
Unlike the affidavit of mailing in People v Pacer, which the Court of Appeals found to be testimonial notwithstanding the business records exception contained in Crawford, the fingerprint examination reports were not prepared for the specific purpose of litigation. On the contrary, they were prepared in the regular course of an investigation in progress, at a time when defendant had not yet been arrested. Moreover, the reports at issue were introduced through the testimony of a live witness subject to confrontation, albeit not the author of those particular reports.
(Id. at __.)
This is wrong is so many ways, I am not sure where to begin. First, is there a meaningful distinction between a report prepared for "the specific purpose of litigation" and one made during "an investigation in progress"? This was a burglary, and the fingerprint examiner's report compared prints lifted at the crime scene to the defendant's known prints, and opined that the prints matched. Regardless of whether the defendant was technically under arrest at that point, what other purpose would the fingerprint examiner's report serve other than to establish defendant's guilt at a subsequent trial? Whether or not the case is on a court's docket at the time the report is prepared should be irrelevant--this report was generated to be evidence at a criminal trial, and could not conceivably be used for any other purpose. Under the recent Court of Appeals decision in People v Goldstein, the fingerprint examiner's report should qualify as "testimonial", and it is not even a particularly close call.
Second, there is no "business records" exception in Crawford v Washington. Justice Scalia mentions "business records" in passing, while discussing the exceptions to the hearsay rule that existed at the time the Sixth Amendment was created. (See Crawford, 541 US at 56 ["Most of those hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy"]. Justice Scalia's statement is true as far as it goes--most business owners keep records for reasons other than prosecuting criminals. The shopkeeper keeps track of his inventory to better run his business; the telephone company keeps track of customer calls to accurately bill. But the professional enterprise of law enforcement was unheard of during the time of the Founders. The "business records" exception of today, as codified as an evidentiary rule in CPLR 4518, has very little to do with the "business records" exception that existed at the time of the founding. Almost any document used in a criminal prosecution can be turned into a business record by virtue of the manner in which the document is generated and kept. A defendant's confession could be a business record; witness statements given after formal police interviews could be business records; even a plea proceeding transcript could qualify as a business record if the stenographer knew the right foundational testimony to give. By taking the lazy way out and claiming some sort of "business records" exception to the testimonial hearsay rule of Crawford short-circuits the very analysis that Crawford demands. I'd go on, but I've posted on this subject at length already (available here.
Third, the fact that a warm body was on the witness stand when the non-testifying fingerprint examiner's report was received is not only irrelevant, it points up the very unfairness that the confrontation clause is designed to dispel. The declarant must be on the stand if any meaningful confrontation is to occur; substituting somebody with no first-hand knowledge of the report at issue doesn't solve the confrontation clause problem--it guarantees that no confrontation will occur.
The Fourth Department has previously held that fingerprint affidavits are inadmissible under Crawford (see People v Williams, 30 AD3d 980); hopefully, the Court of Appeals will grant leave and resolve the split.
Cop can give expert opinion testimony explaining why no drugs were found on defendant
People v Goris, 2007 NY Slip Op 01165 [available here]
Defendant was observed selling drugs, but when the police arrested him they found no drugs on his person, and a search of the immediate area turned up nothing. Over objection, a police officer was allowed to give "brief expert testimony to explain why the police did not recover any drugs from defendant's person, or after a search of the area, although they had just observed him selling drugs." (Goris, 2007 NY Slip Op 01165.) The First Department found no error, holding that the "testimony was particularly relevant since defendant argued that the failure to recover a drug stash undercut evidence of his guilt. The officer's testimony indicated that defendant kept the drugs in a location other than on his person, and provided a factual predicate for expert testimony regarding his possible use of a hiding place." (Goris, 2007 NY Slip Op 01165.) This drives me nuts. In order to allow expert testimony to invade the jury's sole province to determine the facts at issue, the testimony must be about something that is beyond the ken of the average juror. How is a lay person unable to understand that drug dealers might hide their drugs in a ground stash? Essentially, rulings like this give a police officer in a drug case inordinate power of the outcome of the trial; if the police find drugs on the person, an officer can opine that the amount of drugs is consistent with the intent to sell, and if no drugs are found, the officer can opine that the dealer is just really good at his craft. No matter what the facts are in a drug case, a police officer will give expert testimony that such facts are consistent with guilt.