        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

392
KA 11-00290
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JARRETT T. WHITE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered December 16, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree and criminal possession of a
controlled substance in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
third degree (Penal Law § 220.16 [1]) and criminal possession of a
controlled substance in the fifth degree (§ 220.06 [5]), defendant
contends that County Court erred in refusing to suppress the drugs
seized from his person because he was subject to an illegal search,
and that his statements to a police investigator should have been
suppressed as the fruits of that illegal search. We conclude that the
court properly denied that part of defendant’s omnibus motion seeking
to suppress the physical evidence and statements.

     In March 2010, defendant attempted to enter the Hall of Justice
in Rochester. The security measures at the Hall of Justice required
that all entrants be searched via metal detectors, and that their
personal belongings pass through an X-ray machine to search for
weapons and other contraband. During his entry to the Hall of
Justice, defendant set off the walk-through magnetometer, and a
subsequent scan of his person by a hand scanner operated by a Monroe
County Sheriff’s Deputy indicated that there was metal in the area of
defendant’s crotch. When asked if he had any metal on his person,
defendant gave an illogical and unlikely explanation, and began to act
in a nervous manner. Defendant was scanned twice more by the hand
scanner, which continued to indicate the presence of metal in the same
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                                                         KA 11-00290

location inside defendant’s pants. After a pat frisk revealed no
observable weapon on defendant’s person, defendant was handcuffed and
escorted to an adjacent private room by two deputies. There, one of
the deputies helped defendant pull down his pants “just below the
waist area,” and a “gold-covered foil package” containing drugs was
retrieved from a seam in defendant’s long underwear.

     The evidence at the suppression hearing established that
prospective entrants into the Hall of Justice were warned by postings
that “anybody entering the building [was] subject to be[ing]
searched,” and that, prior to submitting to the security procedures,
defendant would have been able to see individuals in line ahead of him
passing through the magnetometer and placing their belongings on the
X-ray machine. Thus, inasmuch as defendant had notice of the
impending security checkpoint and search, we conclude that he
relinquished any reasonable expectation of privacy and impliedly
consented to the search by seeking entry into the Hall of Justice (see
People v Hurt, 93 AD3d 617, 617, lv denied 19 NY3d 962; People v
Rincon, 177 AD2d 125, 127, lv denied 79 NY2d 1053; see also People v
Price, 54 NY2d 557, 563).

     We further conclude that defendant did not revoke his consent to
the search, and that his implied consent was limited neither to the
initial scans by the walk-through magnetometer and hand scanner nor to
the subsequent pat frisk. “ ‘The standard for measuring the scope of
a suspect’s consent under the Fourth Amendment is that of “objective”
reasonableness—what would the typical reasonable person have
understood by the exchange between the officer and the suspect’ ”
(People v Gomez, 5 NY3d 416, 419, quoting Florida v Jimeno, 500 US
248, 251).

     Here, defendant was warned before walking through the
magnetometers that he could be subject not just to a pat frisk, but to
a search. Given a reasonable person’s knowledge of the increased
security measures in government buildings in the past decade and the
notifications posted for entrants into the Hall of Justice, we
conclude that a reasonable person would have understood that the
impending search could involve more than a pat frisk if the initial
magnetometer scans indicated the presence of metal on his or her
person (see Hurt, 93 AD3d at 617-618; see generally Gomez, 5 NY3d at
419). We therefore further conclude that the deputies’ search of
defendant’s person did not exceed the scope of defendant’s implied
consent.

     Defendant’s contention that the opening of the foil package, once
it was removed from his person, was a separate, improper search
incident to an arrest is unpreserved for our review because defendant
failed to raise that contention in his omnibus motion or before the
suppression court (see generally People v Turner, 96 AD3d 1392, 1393,
lv denied 19 NY3d 1002). In any event, that contention has no merit.
As defendant correctly concedes, he was not under arrest when he was
taken to the adjacent room. Moreover, inasmuch as defendant impliedly
consented to a search of his person and belongings before entering the
Hall of Justice, and did not revoke said consent before the deputies
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                                                         KA 11-00290

opened the foil package, we conclude that the deputies’ opening of the
package to check if it contained a small weapon, such as a razor
blade, was not improper (see Hurt, 93 AD3d at 618; Rincon, 177 AD2d at
129).

     Finally, inasmuch as the search was lawful, there is no basis for
suppressing defendant’s subsequent statements to a police investigator
as the fruits of an illegal search (see People v John, 119 AD3d 709,
710, lv denied 24 NY3d 1003; People v Palmeri, 272 AD2d 968, 969, lv
denied 95 NY2d 967).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
