                          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
