State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 26, 2015 105900 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Appellant,

v MEMORANDUM AND ORDER

MICHAEL NICHOLAS, Also Known

as MICHAEL NICHOLAS 

CUMMINGS,

Respondent.

________________________________

Calendar Date: January 7, 2015

Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.

__________

Robert M. Carney, District Attorney, Schenectady (Kevin

Cheung of counsel), for appellant.

Mark J. Caruso, Public Defender, Schenectady (Lauren Mack

of counsel), for respondent.

__________

Lahtinen, J.P.

Appeal from an order of the County Court of Schenectady

County (Drago, J.), entered March 15, 2013, which, among other

things, granted defendant's motion to suppress.

During the afternoon on April 9, 2012, police stopped a car

in the City of Schenectady, Schenectady County, based on

information that there was an active arrest warrant for the

driver. Defendant, a rear seat passenger, was observed by police

with his hand in the open zipper of his pants. When he failed to

adhere to police directives to keep his hands in view, defendant

was removed from the car, placed face down in the street,
-2- 105900 

handcuffed and moved face down to an adjoining lawn of a high

school. During the removal, defendant's pants and underwear

ostensibly came part way down exposing a portion of his buttocks,

where an officer observed a white object. A detective arrived,

lifted defendant's underwear to see the object and summoned an

ambulance; when the ambulance had not arrived after 20 to 25

minutes, the detective put on rubber gloves and removed the

object from defendant's buttocks as he laid on the school lawn. 

The object was a condom containing 69 packets of heroin.

Defendant was indicted on several charges and moved to,

among other things, suppress the drugs seized from him. 

Following a Mapp hearing, County Court rendered a detailed

decision in which it found probable cause for the stop and that

the two visual body cavity inspections were reasonable. However,

the court suppressed the evidence upon its finding that the

detective had conducted a warrantless manual cavity search and

that such search was unreasonable under the circumstances. The

People appeal.

In People v Hall (10 NY3d 303 [2008], cert denied 555 US

938 [2008]), the Court set forth the applicable standards for the

three distinct and increasingly intrusive types of bodily

examinations of a strip search, a visual body cavity inspection

and a manual body cavity search. We are concerned here with the

third and most intrusive. As to such a search, "the removal of

an object protruding from a body cavity, regardless of whether

any insertion into the body cavity is necessary, . . . cannot be

accomplished without a warrant unless exigent circumstances

reasonably prevent the police from seeking prior judicial

authorization" (id. at 311; see People v More, 97 NY2d 209, 214

[2002]). Examples of sufficient exigent circumstances could

include that "the drugs were in imminent danger of being

destroyed, disseminated or lost, or that defendant was in medical

distress" (People v Hall, 10 NY3d at 313). 

Although there was conflicting proof as to whether the

object was actually in defendant's rectum or merely nesting in

his underwear, County Court concluded that the object was

secreted partially in defendant's body. "[W]e accord great

weight to the credibility determinations made by the suppression
-3- 105900 

court, given its peculiar advantage of having seen and heard the

witnesses" (People v Issac, 107 AD3d 1055, 1057 [2013]). The

record contains ample evidence to support County Court's

conclusion and we discern no reason to disagree with its

credibility determinations. Inasmuch as the record supports the

determination that the object was at least partially in

defendant's rectum and was removed without a warrant, it was

incumbent upon the People to establish exigent circumstances. 

This they failed to do. The detective indicated that he

was concerned that defendant could tamper with the evidence and

also that the object containing the contraband could rip,

resulting in a medical emergency for defendant. Given

defendant's position of being handcuffed face down with three

police guarding him, County Court was unpersuaded that defendant

tampering with the object constituted an acceptable exigent

circumstance. The court further noted that, had an emergency

existed, police would not have waited for 20 to 25 minutes before

removing the item. The detective acknowledged that he could have

made an oral application to a judge for a warrant. There was

insufficient proof that defendant's health was in immediate

jeopardy and, as observed by County Court, accepting as a medical

exigent circumstance the presence of an object such as this in a

defendant's body would essentially eviscerate the warrant

requirement whenever a defendant secreted suspected drugs in his

or her body. The remaining arguments by the People have been

considered and are either academic or unavailing.

Garry, Rose and Devine, JJ., concur.

ORDERED that the order is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court