People v. Williams ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: November 3, 2016                   107272
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                     MEMORANDUM AND ORDER
    BRANDON L. WILLIAMS,
    Appellant.
    ________________________________
    Calendar Date:   September 6, 2016
    Before:   Peters, P.J., McCarthy, Lynch, Rose and Clark, JJ.
    __________
    Torrance L. Schmitz, Vestal, for appellant.
    Weeden A. Wetmore, District Attorney, Elmira (Damian M.
    Sonsire of counsel), for respondent.
    __________
    McCarthy, J.
    Appeal from a judgment of the County Court of Chemung
    County (Rich Jr., J.), rendered October 31, 2014, convicting
    defendant upon his plea of guilty of the crime of criminal
    possession of a controlled substance in the fifth degree.
    In February 2014, an officer of the Elmira Police
    Department stopped a vehicle that matched a description of one
    that had been stolen and that was being driven by defendant.
    After defendant acknowledged that his driver's license was
    suspended, he was arrested for aggravated unlicensed operation of
    a motor vehicle in the second degree. Following his arrest,
    defendant was transported to the police station and subjected to
    a search, after which officers ultimately recovered marihuana and
    cocaine, which defendant had secreted on his person. Defendant
    was subsequently indicted on one count of criminal possession of
    -2-                107272
    a controlled substance in the fifth degree. Following the denial
    of his motion to suppress the drugs found on his person,
    defendant pleaded guilty as charged and was sentenced, as a
    second felony offender, to two years in prison with two years of
    postrelease supervision. Defendant appeals, arguing that County
    Court erred in denying his suppression motion.
    County Court properly denied defendant's motion to suppress
    the drugs as evidence. "[A] strip search must be founded on a
    reasonable suspicion that the arrestee is concealing evidence
    underneath clothing and the search must be conducted in a
    reasonable manner" (People v Hall, 10 NY3d 303, 310-311 [2008],
    cert denied 
    555 US 938
     [2008]; see People v Williams, 140 AD3d
    1526, 1528 [2016]). "To advance to the next level required for a
    visual cavity inspection, the police must have a specific,
    articulable factual basis supporting a reasonable suspicion to
    believe the arrestee secreted evidence inside a body cavity and
    the visual inspection must be conducted reasonably" (People v
    Hall, 10 NY3d at 311; see People v Cogdell, 126 AD3d 1136, 1138
    [2015], lv denied 25 NY3d 1200 [2015]).
    At the suppression hearing, police officer testimony
    established that, when he was pulled over, defendant was "swaying
    back and forth" in his seat as officers approached the vehicle
    and then was emitting a strong odor of marihuana. Officers did
    not find any drugs in the vicinity of defendant when he was
    arrested or when his clothing and pockets were searched, and
    defendant continued to smell of marihuana even after he was taken
    from the vehicle that he was stopped in. Moreover, a search of
    the vehicle did not uncover the source of the odor. Thereafter,
    police officers placed defendant in a search room at the police
    department to conduct a strip search. Defendant removed articles
    of clothing one by one, articles which were thereafter searched
    and none of which revealed the source of the odor of marihuana.
    The officers thereafter attempted to conduct a visual cavity
    search, which defendant refused to comply with. After defendant
    refused to comply and after officers attempted to secure
    defendant in handcuffs, defendant attempted to strike and kick
    the officers, leading to a physical altercation. During that
    altercation, one officer observed a white object protruding from
    -3-                107272
    defendant's buttocks. After defendant was subdued, an officer
    began the application for a search warrant in order to perform a
    body cavity search. In the meantime, and according to an officer
    assigned to observe defendant, defendant provided officers with a
    baggie containing what appeared to be marihuana that he had
    procured from his groin area. Thereafter, the same officer
    observed defendant holding a white object in his hand. Officers
    pinned defendant to the wall, pried his fingers open when he
    refused to open his hand and secured a plastic baggie containing
    a white substance later identified as cocaine.
    Defendant testified to a different narrative. According to
    him, officers openly discussed falsifying reports so as to
    justify a strip search. Defendant further claimed that he was
    punched in the face by a police officer after he was removed from
    the vehicle that he was driving. Finally, defendant claimed
    that, when he refused to submit to strip and visual cavity
    searches, officers wrestled him to the ground and forcefully
    removed a baggie of cocaine from his rectum.
    In regard to all disputed facts relevant to this
    suppression inquiry, County Court credited the testimony provided
    by the officers and discredited defendant's testimony.
    Considering the officers' testimony, the aforementioned
    individualized facts regarding defendant's behavior and odor
    provided reasonable suspicion to perform a strip search and then
    attempt a visual cavity search when the strip search did not
    reveal the source of the odor. The execution of the strip search
    was reasonable, particularly in light of the fact that defendant
    removed his own clothes in a designated search room. Contrary to
    defendant's contention, force was used to secure defendant after
    he refused to submit to handcuffing and attempted to strike and
    kick officers, but it was not used for the purposes of conducting
    a visual cavity search. Finally, the credited evidence
    established that no cavity search occurred, as police officers
    only recovered the evidence after it either fell out of
    defendant's body or was removed by him. Based on the foregoing,
    and affording appropriate deference to the court's credibility
    determination, the court did not err in denying defendant's
    suppression motion (see People v Williams, 140 AD3d at 1528;
    -4-                  107272
    People v Cogdell, 126 AD3d at 1139; People v Anderson, 104 AD3d
    968, 971 [2013], lvs denied 21 NY3d 1013, 1016 [2013]).
    Peters, P.J., Lynch, Rose and Clark, JJ., concur.
    ORDERED that the judgment is affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 107272

Judges: McCarthy, Peters, Lynch, Rose, Clark

Filed Date: 11/3/2016

Precedential Status: Precedential

Modified Date: 11/1/2024