AD1 rejects visual body cavity search under the facts

In some drug arrest cases, the police will know that a defendant has drugs on his person and, by process of elimination, determine that the only conceivable place for the drugs is a body cavity. In People v. Colon (1st Dept. 1/4/2011), however, the First Department concluded there was not evidence to support even a visual inspection of the defendant's buttocks. "To conduct '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 . . . [V]isual cavity inspections . . . 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' (People v Hall, 10 NY3d at 311)." Here, the defendant was searched, pursuant to a warrant, nine days after the facts that gave rise to the warrant. There was no indication that he would have drugs on his person at the time such that a reasonable inference could be drawn that the drugs were in a body cavity, since none were found in his clothing. The First Department unanimously reversed the defendant's conviction and dismissed the indictment. (LC)

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