Petition for Writ of Certiorari — New York v. Hall (No. 07-1568)
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IN THE
Supreme Court of the Gnited States
NEW YORK,
Petitioner,
- VETSUS
AZIM HALL,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF THE STATE OF NEW YORK
PETITION FOR A WRIT OF CERTIORARI
ROBERT M. MORGENTHAU
Distnct Attomey
New York County
MARK RYAN DWYER*
ERIC S. ROSEN
VINCENT RIVELLESE
Assistant District Attomeys
New York County
District Attorney's Office
One Hogan Place
New York, New York 10013
(212) 335-9000
* Counsel of Record for the Petitioner
JUNE 13, 2008
QUESTIONS PRESENTED
1. Does the Fourth Amendment permit the
police to conduct warrantless strip and visual body
cavity searches incident to arrest, for the purpose of
finding and preserving concealed evidence of the
crime?
2. In Schmerber v. California, 384 U.S. 757
(1966), this Court ruled that the Fourth Amendment
prohibited warrantless “intrusions into the human
body” absent a “clear indication” that evidence would
be recovered and exigent circumstances justifying
the warrantless search. Here, after arresting
respondent for the felony sale of narcotics, police
ordered him to remove his clothes and bend over for
a visual inspection of his anus. When he did so, the
officers noticed a string protruding from his rectum.
The police pulled this string, which was attached to
a bag of crack cocaine secreted inside that cavity.
However, the police never touched, probed, or
entered into respondent's rectum in any way. Did
this search and seizure constitute an intrusion into
the body requiring a warrant under Schmerber?
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ......... . ene
TABLE OF AUTHORITIES .00.00......cccccccsccessseseseeees iv
PETITION FOR A WRIT OF CERTIORARI............ 1
TS ee !
STATEMENT OF JURISDICTION o.0......ccccesseescse: 2
CONSTITUTIONAL PROVISION INVOLVED ....... 2
STATEMENT OF THE CASE .......00000.........ceeseeeceeeee: 2
REASONS FOR GRANTING THE WRIT
1. AS THE SPLINTERED DECISION OF
THE NEW YORK COURT OF APPEALS
QUITE FAIRLY INDICATES, WHETHER
THE FOURTH AMENDMENT PERMITS
WARRANTLESS STRIP AND VISUAL
BODY CAVITY SEARCHES OF
ARRESTEES TO RECOVER EVIDENCE
OF A CRIME IS A DIFFICULT AND
IMPORTANT QUESTION THAT
REQUIRES RESOLUTION BY _ THIS
ae gh oeeuss sanncensedscsssacndeccosswnedecnees 10
2. IN HOLDING THAT THE POLICE
INTRUDED INTO RESPONDENT'S
BODY BY PULLING ON THE STRING
PROTRUDING FROM HIS RECTUM --
1
AND THEREFORE THAT A WARRANT
WAS REQUIRED UNDER SCHMERBER
V. CALIFORNIA -- THE MAJORITY
OPINION OF THE NEW YORK COURT
OF APPEALS CONFLICTS WITH THAT
OF OTHER COURTS NATIONWIDE.
MOREOVER, THAT OPINION CREATES
A DANGEROUS LEGAL STANDARD
THAT CONTRAVENES THIS COURT'S
CONTROLLING PRECEDENT. .......0000 26
CN es evnicatbentidepeanantin 39
APPENDIX (separate volume)
Opinion of the New York Court of Appeals........... la
Opinion of the New York Appellate Division...... 38a
Opinion of the New York Supreme Court ........... 48a
TABLE OF AUTHORITIES
FEDERAL CASES
Amaechi v. West, 237 F.3d 356
(4th Cir. 2001) 12, 17, 25, 29
Archuleta v. Wagner, 523 F.3d 1278
i ss ped scsi pe oacnasaewcxecaioonts 15, 18-19
Bell v. Wolfish, 441 U.S. 520 (1979) 6-7, 13-26
Boren v. Deland, 958 F.2d 987
a daluwincugndcpawesinnwebs y's"
Brigham City, Utahv. Stuart, 547 U.S. 398
(2006)
Campbell v. Miller, 499 F.3d 711
Pe BE ao cin owlumnneen 15, 18-19
Chimel v. California, 395 U.S. 752 (1969)............... 11
Evans v. Stephens, 407 F.3d 1272
Sie i 1 REE Sete 15, 18-20
‘uller v. M.G. Jewelry, 950 F.2d 1437
(9th Cir. 199]) ......................... Se er ee 9, 20-22, 30
Guiles v. Ackerman, 746 F.2d 614
(9th Cir. 1984)
Harden v. Flowers, 2003 U.S. Dist. Lexis 7213
(N.D. Hl. 2003)......... Cie POPE ONT BM tte Oe EP ET ROE 19
Henry v. Ryan, 775 F. Supp. 247
nc hoa Sh ge 31
1V
Horton v. California, 496 U.S. 128 (1990) .......0....... 36
Illinois v. Lafayette, 462 U.S. 640 (1983)....... 3, 12-13
In re- Shaddie Clark Shabazz, 200 F. Supp. 2d
ps SI ois cath scntnsccbiosmebicieabeemmisaiakec ne 31
Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985) ...... 15
Justice v. Peachtree City, 961 F.2d 188
a 16, 20
Kennedy v. Los Angeles, 901 F.2d 702
ne i oe 2
Knowles v. Iowa, 525 U.S. 113 (1997) ............... 11, 14
Liston v. Steffes, 300 F. Supp. 2d 742
en ae 19
Mary Beth G. v. City of Chicago, 723 F.2d
bo Ee Se eee is. 27.2%
Maryland v. Bure, 494 U.S. 325 (1990)... 24
Masters v. Crouch, 872 F.2d 1248
I ee ea ee 15
New York v. Belton, 453 U.S. 454 (1981) ................ 37
Richmond v. City of Brooklyn, 490 F.3d 1002
er I ae ee 18-20
Salinas v. Breier, 695 F.2d 1073
to: ¢o eA Ceuenineenaneen Sa Fs 22
Sarnicola v. County of Westchester, 229 F.
ee ee Sk a: 18
Schmerber v. California, 384 U.S. 757
SERGI SS WSR ne Riek Gone ne ee passim
State v. Himmelwright, 551 F.2d 991
ao oo a schvmdiyensenin sovaes 32
Swain v. Spinney, 117 F.3d 1
ee cocsaukusus 12, 18-20, 25
United States v. Allen, 337 F. Supp. 1041
I ME gcd iccrivchtacijavernsendivesarsetsiaassvrenhi' 30
United States v. Barnes, 506 F.3d 58
a ci aag ii dousraiciesvebn 15
United States v. Cameron, 538 F.2d 254
I i a cvocaneueseiai 29
United States v. Cofteld, 391 F.3d 334
I IE eae ee 16, 20
United States v. Edwards, 415 U.S. 800 (1974).11-12
United States v. Elk, 676 F.2d 379
et eden te ta 30
United States v. Ford, 232 F. Supp. 2d 625
I ee asl oi caensh vvawikaabes’ 17
United States v. Holtz, 479 F.2d 89
cd 6 ee | ee OR TE
United States v. Klein, 522 F.2d 296
ge ARERR ere nga tenants ee ne een ee 12
United States v. Nelson, 36 F.3d 758
I oe ae 29
United States v. Nicolosi, 885 F. Supp. 50
I ce a se vedo 31
United States v. Oyekan, 786 F.2d 832
a i ayuinsalntunths 29
United States v. Robinson, 414 U.S. 218
(A EN EON Ne ten ROPE SIEF 2, 11-12, 14 24
United States v. Ross, 456 U.S. 798 (1982)............. 37
United States v. Williams, 477 F.3d 974
NN i ae rca ideale eeacreawel 16, 20
Watt v. Richardson Police Dep't, 849 F.2d 195
SPO III i ctiakais se nicanoad essa abyaon eiiveainioobien 15
Weber v. Dell, 804 F.2d 796 (2d Cir. 1986) ......... 7,15
Winston v. Lee, 470 U.S. 753 (1983).............ceeee 29
STATE CASES
Commonwealth v. Gilmore, 27 Va. App. 320
7,22... ne iene 21-22, 29
Commonwealth v. Moss, 30 Va. App. 219
A nse Vohevenciadumden ea tomboy 30
Commonwealth v. Thomas, 429 Mass. 403
I Oe ie Oa ee eee 18, 37
Delaware v. Doleman, 1995 Del Super. LEXIS
235 (Del. Super. Ct. 1995)...................0000 15, 18-19
Vil
Hughes v. Commonwealth, 31 Va. App. 447
Or Ce eh I oi iciscccetbecaones 9, 20-21, 32
In re Nontestimonial Identification Order
Directed To R.H., 171 Vt. 227 (Vt. 2001) ........... 31
King v. Commonwealth, 49 Va. App. 717
Va. Ct. Rate. GOOF ssivisvcsevsisceres, se 20, 22, 25, 30
McGee v. State, 105 S.W.3d 609
(Tox. Crim. Ape. O08) «.......005.0cecc00. 16, 20°21, 37
Paulino v. Maryland, 399 Md. 341 (Md. 2007)..15, 17
People v. Hall, 10 N.Y.3d 303, 886 N.E.2d 162
ORF I osetia 1, 18-19
People v. More, 97 N.Y.2d 209
OE PI sciavcjekaiieette eae 6, 32, 38-39
People v. Wade, 208 Cal. App. 3d 304 (1989).......... 37
People v. Walker, 27 A.D.3d 899
Ct T., 2. a. Be kc 37
People v. Williams, 157 Ill. App. 3d 496
uk; Ak: Ce ici eee 30
State v. Barnes, 159 P.3d 589
(Ariz. Ct. App. se Ee er 16, 32°33. do
State v. Bullock, 661 So. 2d 1074
(Lia. Age. Cit: FO occcccidciccceimenne
State v. Clark, 654 P.2d 355 (Haw. 1982) ...............29
State v. Fontenot, 383 So. 2d 365 (ha. 1980) .......... 29
Vill
State v. Jenkins, 82 Conn. App. 111
cscs cssksneestvivarecevesivessene 15, 18-19
State v. Jones, 887 P.2d 461
ES. ee
State v. Kangas, 1998 Ohio. App. LEXIS 5417
Cg ESS | re 32
State v. Kelly, 1993 Ohio App. LEXIS 3292
ESL ner,
State v. Mabon, 648 S.W.2d 271
ES 30
State v. Magness, 115 Ariz. 317
ES ) 12
State v. Nieves, 383 Md. 573 (Md. 2004)...... 18-19, 33
State v. Palmer, 803 P.2d 1249
Se 30
State v. Voichahoske, 271 Neb. 64 (Neb. 2006)....... 33
Taylor v. Commonwealth, 28 Va. App. 638
UT I IID oo coccssnccesescncssceecesescsessensnseeess 33
Taylor v. State, 239 Ga. App. 858
(Ga. Ct. App. 1999)....... Mid doh sietseeiceseinvevenneveseens 15
FEDERAL CONSTITUTIONAL PROVISIONS
se 2
US. Const. Amend. 4.........................0..0008 wines passim
1X
STATE STATUTES
N. J. Stat. Ann. § 2d:161a°3 (West 1998)... 20
Tenn. Code. Ann. § 40-7-121(a) (1998)... ce. 20
OTHER AUTHORITIES
Gabriel Helmer, Strip Search and the Felony
Detainee: A Case for Reasonable Suspicion,
81 B.U.L. Rev. 239 (2001) .......... esse 14, 15, 23
Lo
Deborah MacGregor, Stripped of All] Reason?
The Appropriate Standard for Evaluating
Strip Searches of Arrestees and Pretrial
Detainees, 36 Colum. J.L. & Soc. Probs.
RSI ERE a aR Pr 24
Michael G. Rogers, Bodily Intrusions in
Search of Evidence: Fourth Amendment
Decisionmaking, 62 Ind. L.J. 1181 (1987).......... 23
Eugene Shapiro, Strip Searches Incident to
Arrest: Cabining the Authority to
Humitiate, 83 N. Dak. L. Rev. 67 (2007)......22, 24
William Simonitsch, Visua/ Body Cavity
Searches Incident to Arrest: Validity
Under the Fourth Amendment, 54 U.
Miami L. Rev. 665 (2000)......0.00.0ccee. 22, 23, 33
Nadine Strossen, The Fourth Amendment in
the Balance, 63 N.Y.U.L. Rev. 1173 (1988)........ 18
In The
SUPREME COURT OF THE UNITED STATES
NEW YORK,
Petitioner,
"versus"
AZIM HALL,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
The State of New York respectfully petitions
for a writ of certiorar! to the New York Court of
Appeals in People v. Azim Hall, 10 N.Y.3d 303, 886
N.E.2d 162 (N.Y. 2008).
OPINIONS BELOW
The opinion of the New York Court of Appeals
is reported at 10 N.Y.3d 303, 886 N.E.2d 162 (N.Y.
2008), and is reproduced in the appendix at pages
la-37a. The opinion of the New York Appellate
Division, First Department, is reported at 39 A.D.3d
100, 829 N.Y.S.2d 85 (N.Y. App. Div. 2007), and is
reproduced in the appendix at pages 38a°47a. The
written order of the trial court (New York Supreme
Court, County of New York) granting respondent’s
motion to suppress is unreported and is reproduced
in the appendix at pages 48a-53a.
STATEMENT OF JURISDICTION
On March 25, 2008, the New York Court of
Appeals reversed the order of the Appellate Division,
First Department, granted respondent’s Fourth
Amendment motion to suppress physical evidence,
and dismissed the indictment (App. la).! This
Court’s jurisdiction is invoked under 28 U.S.C. §
1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the United States
Constitution provides, in pertinent part, that “The
right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrant shall issue, but upon probable cause .. ”
STATEMENT OF THE CASE
This case presents two important issues of
Fourth Amendment jurisprudence. both concerning
the power to conduct a search incident to arrest, that
have sharply divided the courts of this nation.
First, although this Court determined in
United States v. Robinson, 414 U.S. 218, 234 (1973),
and United States v. Edwards, 415 U.S. 800, 802-03
(1974), that a full warrantless search of a person is
permitted incident to any lawful arrest, this Court
! Page references preceded by “App.” are to petitioner's
separately-bound appendix.
2
has expressly reserved the question of whether a
strip search or visual body cavity search of an
arrestee is also permissible. See TIilinois v.
Lafayette, 462 U.S. 640, 646 n.2 (1983). This case
presents that issue, thereby giving this Court an
opportunity to resolve a federal constitutional
question that has resulted in a deep split amongst
both the federal courts of appeals and the states.
Second, in the context of a 1966 case involving
the drawing of blood from an arrestee by means of a
needle inserted into the arrestee’s arm, this Court
determined that the Fourth Amendment forbids
warrantless “intrusions into the human body” absent
a clear indication that evidence would be found and
exigent circumstances that justify dispensing with
the warrant requirement. Schmerber v. California,
384 U.S. 757, 769-70 (1966). In the more than forty
years since Schmerber, courts nationwide have
struggled to define what constitutes an “intrusion”
into the body. In particular, courts have sharply
split over whether the removal of an object partially
protruding from a body orifice constitutes an
intrusion into the body requiring a warrant. In this
case, the New York Court of Appeals ruled that by
pulling a string protruding from respondent's rectum
the police conducted an unlawful intrusion into his
body. This case will allow this Court to clarify what
constitutes an intrusion into the body under
Schmerber, thereby resolving a second issue that has
split both federal and state courts.
A. Material Facts
On the evening of February 10, 2005, two
Manhattan police officers, who were stationed on a
rooftop in a neighborhood plagued with drug dealing,
clandestinely watched respondent and Ross Meyers
sell drugs outside a neighborhood bodega (App. 2a,
39a, 48a). Specifically, two men approached Meyers
and handed him money (App. 2a, 39a, 49a). Meyers
accepted the money and talked briefly with
respondent (App. 2a, 39a, 49a). Then, he and
respondent went inside the bodega (App. 2a, 39a,
49a). Respondent retreated to the back of the
bodega, while Meyers remained by the entrance
(App. 2a, 39a, 49a). Minutes later, respondent
emerged from the back and handed something to
Meyers (App. 2a, 39a, 49a). Meyers, in turn, went
outside and gave “small white objects” to the waiting
men (App. 2a-3a, 39a, 49a).
Upon seeing the apparent drug sale, the police
left their rooftop perch to arrest the participants; the
buyers escaped, but the police arrested respondent
and Meyers (App. 3a, 39a, 49a). In a “pat-down’”
search at the crime scene, no contraband was
recovered (App. 3a). Respondent and Meyers were
brought to the precinct station house, where the
arrest was processed (App. 3a, 49a). There.
respondent was given a more thorough pat-down
search; still, no contraband was recovered (App.
49a). However, the police knew that drug dealers,
particularly in the area in which respondent had
been arrested, often secreted narcotics between their
buttocks or down their pants (App. 14a, 39a). In
fact, in “at least one out of two drug arrests, the
4
suspects had hidden drugs in such a manner’ (App.
14a, 39a-40a).
For this reason, respondent was led into a
holding cell and ordered to disrobe (App. 3a, 40a,
49a). Now standing naked inside the cell,
respondent was asked to bend over for a visual
inspection (App. 3a, 40a, 49a). When he did so, the
police noticed a three-inch long white string
protruding from his rectum (App. 40a, 49a). The
police believed that this string was attached to
narcotics (App. 3a, 49a). The police ordered
respondent to remove the string, but he refused
(App. 3a, 32a, 40a, 49a). One police officer then
secured respondent while another pulled the string
(App. 3a, 32a, 40a, 49a-50a). The string, which was
tied to a plastic bag containing crack cocaine, came
out easily; no police officer “put a hand or
implement” into respondent or “even touched him
below the waist,” and respondent was in no way
injured (App. 3a, 32a, 49a-50a). Respondent was
subsequently charged with two New York narcotics
felonies (App. 3a).
B. Proceedings Below.
Prior to trial, respondent moved to suppress
the bag of crack cocaine that had been recovered by
the police, arguing that the police conducted an
unlawful body cavity search by pulling the string
protruding from his rectum (App. 50a). The
suppression court agreed with respondent, granted
his suppression motion, and_ dismissed_ the
indictment (App. 53a). Characterizing the search as
a “body cavity search,” the suppression court
=
>
determined that under Schmerber v. California, 384
U.S. 757 (1966), and People v. More, 97 N.Y.2d 209
(N.Y. 2002), which apphed Schmerber to a body
cavity search conducted at the suspect’s apartment,
the Fourth Amendment required a warrant to
conduct a visual inspection of respondent’s anus and
likewise to pull the protruding string, unless
“exigent circumstances” justified dispensing with the
warrant (App. 50a-5la). The suppression court
concluded that the lack of exigent circumstances
here “dictateld]” that the “body cavity search” was
“unreasonable” (App. 51a).
A unanimous five-judge panel of the New
York Appellate Division, First Department reversed
the suppression order and reinstated the indictment,
ruling that the search at the precinct was not
“unreasonable” under the Fourth Amendment (App.
38a). The intermediate appellate court noted that
Schmerber required a search warrant for police
“intrusions within the suspect’s body” (App. 40a-41a)
(emphasis in original). The Appellate Division ruled
that “pullling] the string out of [his] rectum” did not
constitute an intrusion into respondent's body (App.
41a-42a).
Instead, the police conduct at the precinct
amounted to a “strip search” and “visual body cavity”
search governed by the “reasonableness” principles
pronounced by this Court in Be// v. Wolfish, 441 U.S.
520, 559 (1979), which considered the
constitutionality of warrantless visual body cavity
searches of pretrial detainees housed in a
correctional facility (App. 41a-42a). The
reasonableness balancing test promulgated in Beli
6
considered “(1) the scope of the intrusion, (2) the
manner in which the search is conducted, (3) the
justification for initiating the search, and (4) the
place in which the search is conducted” (App. 42a)
(citing Bell, 441 U.S. at 559). And as the Appellate
Division explained, in balancing those factors and
taking into account the legitimate security interests
of correctional facilities, this Court ruled that
warrantless visual body cavity searches of prison
detainees were permissible “even absent probable
cause, particularized suspicion or clear indication”
that evidence would be found (App. 42a-43a) (citing
Bell, 441 U.S. at 560).
The Appellate Division recognized that the
Bell rule pertained to pretrial detainees, and that
this Court had “not yet specifically considered the
circumstances under which a strip search incident to
arrest [was] justified” (App. 42a) (citing Illinois v.
Lafayette, 462 U.S. 640, 646 n.2 [1983]). However,
citing a number of cases from the Second Circuit
Court of Appeals, the court determined that such
warrantless visual searches were lawful where there
exists a “reasonable suspicion that the arrestee is
concealing” contraband (App. 43a) (citing Weber v.
Dell, 804 F.2d 796, 802 [2d Cir. 1986)).
Applying the four-factor Be// test to the facts
at hand, the Appellate Division held that the “visual
body cavity search initially conducted here was
justified and reasonable” (App. 46a). Even though
the “scope” ane “nature” of the procedure was
“degrading,” the “manner and place” of the search
were “reasonable” and the “visual body cavity
search” was justified by “the facts known to the
7
police, including their experiences with the common
practices of drug sellers in the neighborhood,’ and
their “observation of defendant selling drugs,
packaged in small packets, during which the seller
had to temporarily retreat to an unseen spot prior to
compieting the transaction in order to retrieve the
goods he sold” (App. 46a). Indeed, those factors gave
the police “reasonable suspicion” to believe that
respondent was “concealing ... contraband” (App.
46a). Lastly, the “observation of the protruding
string during the course of the procedure justified
the immediate actions taken to physically retrieve
the secreted narcotics” (App. 47a).
On federal constitutional grounds, the New
York Court of Appeals reversed the Appellate
Division’s decision (App. lla, 15a). Initially, five of
the seven judges held that the “relevant
constitutional precedent” required the “reasonable
suspicion standard” for investigatory strip searches
and visual body cavity inspections incident to arrest
(App. lla). Under this standard, the police could
conduct a strip search if they had reasonable
suspicion that an arrestee was “concealing evidence
underneath clothing,” and they could conduct a
“visual body [cavity] inspection” if they had a
“reasonable suspicion that the arrestee has evidence
concealed inside a body cavity” (App. la, 7a-8a,
lla).2 Under that legal standard, the majority
2 The Court of Appeals pronounced that there were
“three distinct and increasingly intrusive types of bodily
examinations undertaken” incident to arrest (App. 4a). A strip
search 1s one in which the arrestee disrobes, a visual body
cavity search is one in which the police visually inspect the
(Continued...)
8
concluded that the police here had the requisite
“reasonable suspicion” to conduct the initial strip
and visual body cavity search (App. 13a).
The two judges in the minority on that score
agreed that the “reasonable suspicion” standard
should apply to strip searches incident to arrest, but
opined that a higher standard of cause should be
adopted for “visual body cavity searches” (App. 16a).
They concluded that lke manual body cavity
searches, a visual body cavity search was an
intrusion into the body that either required a
warrant “based upon probable’ cause” or
“satisfaction” of the Schmerber clear indication and
exigent circumstances test (App. 16a, 21a) (citing
Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449 [9t» Cir.
1991]; Hughes v. Commonwealth, 31 Va. App. 447,
460 [Va. Ct. App. 2000)).
However, the Court of Appeals decided, by a
vote of four to three, that Schmerber “dictateld] that
a more stringent standard be applied to a physical
search of an arrestee’s body cavity” (App. 10a). In
that regard, the Court of Appeals believed that
Schmerber obliged the police to obtain a warrant
“before conducting a body cavity search” like the one
here, even though no “insertion into the body cavity
[was] necessary” (App. 12a). The four judges
{...Continued)
arrestee’s “anal or genital cavities,” and a “manual body cavity
search” includes some “degree of touching or probing of a body
cavity that causes a physical intrusion beyond the body's
surface” (App. 4a) (citing Blackburn v. Snow, 771 F.2d 556, n.3
[ist Cir. 1985)]).
concluded that, “when the police physically removed
the object that was attached to the string without
first obtaining a warrant, they conducted an
unreasonable manual body cavity search in violation
of the Fourth Amendment” (App. 15a).
The dissent wrote that the general rule
allowed the police to search an arrestee without a
warrant. The exception to that rule established in
Schmerber v. California required a warrant only for
“searches that intrude into the human body” (App.
32a°33a). Here, the dissent noted, Schmerber was
“inapplicable” because “no one intruded into’
respondent's body or caused him pain; the “removal
of the contraband in this case seemled] ... a lesser
violation of privacy than the lawful search that led
to its discovery” (App. 33a). Hence, the dissent
concluded, it made “little sense ... to require officers
to obtain a warrant in cases such as this, where
contraband is visible between the cheeks of the
buttocks and may be retrieved easily, without harm
to the individual” (App. 36a) (quoting State v.
Barnes, 215 Ariz. 279, 285 [2007] [Espinosa, J.
dissenting]).
REASONS FOR GRANTING THE WRIT
1. AS THE SPLINTERED DECISION OF THE
NEW YORK COURT OF APPEALS QUITE
FAIRLY INDICATES, WHETHER THE
FOURTH AMENDMENT PERMITS
WARRANTLESS STRIP AND VISUAL BODY
CAVITY SEARCHES OF ARRESTEES TO
10
RECOVER EVIDENCE OF A CRIME IS A
DIFFICULT AND IMPORTANT QUESTION
THAT REQUIRES RESOLUTION BY THIS
COURT.
A. Twenty-Five Years Ago, This Court Left
Unresolved The Question Of Whether The Fourth
Amendment Permits Warrantless Strip And Visual
Body Cavity Searches Incident To Arrest.
“Reasonableness” is the “ultimate touchstone
of the Fourth Amendment,” Brigham City, Utah v.
Stuart, 547 U.S. 398, 403 (2006), and it is well-
settled that a warrantless search of a_ person
incident to any lawful arrest is reasonable. United
States v. Robinson, 414 U.S. 218, 234-35 (1973); see
also United States v. Edwards, 415 U.S. 800, 802-03
(1974). Such a search is justified both by the need to
detect weapons and other dangerous items, and by
the need to “search for and seize any evidence on the
arrestee’s person in order to prevent its concealment
or destruction.” Chimel v. California, 395 U.S. 752,
755 (1969); see also Knowles v. lowa, 525 U.S. 1138,
116 (1997); Robinson, 414 U.S. at 234.
Immediately after this Court decided
Robinson and Edwards, some courts ruled that strip
and visual body cavity searches incident to arrest
could be conducted without a warrant and without
any particularized individual suspicion at all. See,
e.g., United States v. Klein, 522 F.2d 296, 300 (st
Cir. 1975): State v. Magness, 115 Ariz. 317 (Ariz. Ct.
App. 1977). And here, the contested evidence was
not lawfully recovered unless the strip and visual
body cavity search which followed the arrest was
1]
legal. However, this Court later explicitly reserved
the question of whether such searches were
authorized by HAobinson and its progeny (App. 7a,
2la, 42a). See Illinois v. Lafayette, 462 U.S. 640,
646 n.2 (1983) (Court had not yet addressed the
“circumstances in which a strip search of an arrestee
may or may not be reasonable”).
Thus, whether the search incident to arrest
contemplated in Robinson and Edwards includes
strip and visual body cavity searches of arrestees
remains an open question. See, e.g., Amaechi v.
West, 237 F.3d 356, 361 (4 Cir. 2001) (in deciding
reasonableness of body cavity search, wrote that
Robinson did not permit all searches incident to
arrest, “no matter how invasive”); Swain v. Spinney,
117 F.3d 1, 6 (1t Cir. 1997) (under Robinson not all
“searches of an arrestee’s body are automatically
permissible as a search incident to arrest”); Giles v.
Ackerman, 746 F.2d 614, 616 (9% Cir. 1984)
(Robinson inapplicable to visual body cavity
searches); Mary Beth G. v. City of Chicago, 723 F.2d
1263, 1271 (7t Cir. 1983) (Robinson “did not
contemplate the significantly greater intrusions that
occur[ J” in a visual body cavity inspection).
While J//inois v. Lafayette reserved the
question, this does not mean that this Court has
provided no guidance on this subject. In Bel/ v.
Wolfish, 441 U.S. 520 (1979), this Court considered
the constitutionality of a blanket policy requiring
visual body cavity searches of all pre-trial detainees
subsequent to visitations with persons from outside
the prison. Acknowledging that the Fourth
Amendment prohibited “unreasonable” searches,
12
~
this Court wrote that “reasonableness” required a
“balancing of the need for the particular search
against the invasion of personal rights that the
search entails.” /d. at 559. The Court ruled that the
detention center's security interests outweighed the
intrusion of a visual body cavity search, and
therefore, such searches could be conducted “even
absent probable cause, particularized suspicion or
clear indication” that evidence would be found. /d.
In doing so, this Court promulgated a four-factor
“reasonableness” test, balancing the 1) scope of the
intrusion, 2) the manner in which the search is
conducted, 3) the justification for initiating the
search, and 4) the place in which the search is
conducted. /d. at 559-60.
B. State and Federal Courts Are Divided Over
Whether the Fourth Amendment Permits
Warrantless Investigatory Strip and Visual Body
Cavity Searches Incident to Arrest.
As noted, the two primary justifications for a
post-arrest warrantless search at the stationhouse
are to maintain institutional security and to discover
concealed evidence of the crime. Anowles, 525 U.S.
at 116; Robinson, 414 U.S. at 234-35. Bell, which
permitted warrantless visual body cavity searches of
pretrial detainees, was decided in the context of
3 In his partial dissent, Justice Powell recommended
that visual body cavity searches of detainees be subject to a
“reasonable suspicion” standard (Be//, 441 U.S. at 563), thereby
foreshowing, if not actually precipitating, the New York Court
of Appeals’ application of such a rule in this case.
13
institutional security concerns, as its subjects were
not in the category of the newly arrested who will
often be in possession of fruits or evidence of the
recently committed crimes.
While Bel/ permitted warrantless visual body
cavity searches of pretrial detainees, a “ruling
applicable to incarcerated jail inmates is_ not
automatically applicable to those newly arrested”
(App. 42a). See, eg, Turner v. Safley, 482 U.S. 78,
89 (1987) (constitutional standards in prisons
different because even prison regulations that
“impingel ] on inmates’ constitutional rights” are
valid if they are “reasonably related to legitimate
penological interests”). And since Bell, federal and
state courts throughout the nation have struggled to
determine whether, and in what circumstances, the
Fourth Amendment permits warrantless strip and
visual body cavity searches incident to arrest. See,
e.g., Gabriel Helmer, Strip Search and the Felony
Detainee’ A Case for Reasonable Suspicion, 81
B.U.L. Rev. 239, 242 (2001) (“Be// test has provided
minimal guidance to lower courts, and these courts
continuously struggle to extrapolate” what is
demanded for strip and visual body cavity searches
of arrestees and detainees) [hereinafter Helmer,
Strip Search and the Felony Detainee}.
In considering situations analogous to Bell,
where institutional security was the paramount
reason for the strip or visual body cavity search of
the detainee, many courts have resolved ///rnois v.
Lafayettes undecided question in line with Justice
Powell’s partial dissent, see footnote 3, supra, and
have concluded that strip and visual body cavity
14
searches of lawfully arrested suspects, when done to
maintain institutional or jail security, are lawful
when the police have a “reasonable suspicion” that
the arrestee is concealing contraband or weapons
inside his body. See, e.g., Archuleta v. Wagner, 523
F.3d 1278, 1284-85 (10% Cir. 2008); United States v.
Barnes, 506 F.3d 58, 62 (1st Cir. 2007); Campbell v.
Miller, 499 F.3d 711, 718 (7 Cir. 2007); Evans v.
Stephens, 407 F.3d 1272, 1279 (11 Cir. 2005);
Masters v. Crouch, 872 F.2d 1248, 1255 (6t» Cir.
1989); Watt v. Richardson Police Dep't, 849 F.2d 195,
198 (5t Cir. 1988); Jones v. Edwards, 770 F.2d 739,
740-41 (8 Cir. 1985); Weber v. Dell, 804 F.2d 796,
802 (24 Cir. 1986); Giles v. Ackerman, 746 F.2d 614
(9th Cir. 1984). A number of states have likewise
adopted the “reasonable suspicion” standard in this
context. See, e.g., Paulino v. Maryland, 399 Md. 341,
356-57 (Md. 2007); State v. Jenkins, 82 Conn. App.
111, 123 (Conn. 2004); Tavior v. State, 239 Ga. App.
858 (Ga. Ct. App. 1999): Delaware v. Doleman, 1995
Del Super. LEXIS 235, *22 n.2 (Del. Super. Ct. 1995)
(unpublished decision).
But in considering situations like the one
presented here, where the arrestee was subjected to
a strip and visual body cavity search just to prevent
the concealment and _ potential destruction of
evidence, the federal and state courts have sharply
splintered. Broadly speaking, and as will be
explained, infra, the courts have largely devolved
into two opposing camps ~ those that permit
warrantless visual body cavity searches of arrestees
to discover evidence and those that do not. Yet
strikingly, even within the federal circuits and states
that have permitted warrantless investigatory strip
15
and visual body cavity searches, the legal standards
and given rationale for conducting such searches
vary considerably.
In that regard, some courts, in permitting
warrantless strip and visual body cavity searches of
arrestees to search for evidence, have simply
analyzed the propriety of such searches under Be//s
four-part reasonableness test, looking at the scope of
the intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in
which it is conducted. See, e.g., United States v.
Williams, 477 F.3d 974, 977 (8 Cir. 2007)
(investigatory strip search incident to arrest in
precinct parking lot reasonable); United States v.
Cofield, 391 F.3d 334, 336-38 (1st Cir. 2004)
(stationhouse strip search of defendant, who was
arrested for possession of hervin, reasonable);
Justice v. Peachtree City, 961 F.2d 188, 192-93 (11th
Cir. 1992) (strip search of arrestee at stationhouse
proper under Bel); McGee v. State, 105 S.W.3d 609,
616 (Tex. Crim. App. 2003) (visual cavity search of
defendant at fire station, after arrest for selling
drugs, reasonable under Bel).
Similarly, courts have employed the Be// test
and determined that the scope or manner of a given
search rendered it inherently unreasonable. See,
e.g., Amaechi, 237 F.3d at 361-63 (strip search in
public, which involved penetration of arrestee’s
vagina, unreasonable under Be// “scope of intrusion”
and “location” factors); United States v. Ford, 232 F.
Supp. 2d 625, 630 (B.D. Va. 2002) (search of
defendant's buttocks on _ side of highway
unreasonable under Be// location factor); Paulino v.
16
Maryland, 399 Md. 341, 355 (Md. 2007) (visual
cavity search of arrestee at carwash unreasonable
under Be// “location” factor).4
Yet to avoid the inherent difficulties and lack
of uniformity that come with applying a multi-prong
test, many of the state and federal circuit courts that
have permitted warrantless strip and visual body
cavity searches of arrestees to recover evidence, have
eschewed the Be// test and endeavored to provide a
more objective standard as to the reasonableness of
conducting such searches. See, e.g., Mary Beth G. v.
City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983)
(“reasonableness” standard requires “that the facts
upon which an intrusion is based be capable of
measurement against an objective standard”);
Nadine Strossen, The Fourth Amendment in the
Balance, 63 N.Y.U.L. Rev. 1173, 1184 (1988) (Fourth
Amendment balancing tests problematic because
they are “inherently subjective,” and “no objective
methodology exists for their implementation”).
In doing so, the’ highest court’ of
Massachusetts, while not requiring a warrant, has
adopted the “probable cause” standard for visual
body cavity searches of arrestees, regardless of
whether the search is conducted for security
purposes as in Bel/ or, like here, to recover secreted
evidence of the crime. See Commonwealth v.
' The intermediate appellate court here applied the
four-factor Be// test and found that under the circumstances.
the “visual body cavity search” was “justified and reasonable”
(App. 45a-46a).
Thomas, 429 Mass. 403, 408-09 (1999). However,
the majority of jurisdictions, including the First,
Seventh, Eighth, Tenth and Eleventh Circuits and
the state courts of Maryland, Delaware, Connecticut,
and now New York, have embraced the lesser
“reasonable suspicion” standard. See, e.g.
Archuleta, 523 F.3d at 1284-85; Campbel/, 499 F.3d
at 717-18; Richmond v. City of Brooklyn, 490 F.3d
1002, 1008-10 (8t» Cir. 2007); Evans, 407 F.3d at
1279;5 Swain, 117 F.3d at 7; Hall 10 N.Y.3d at 303;
Jenkins, 82 Conn. App. at 125; Mieves, 383 Md. at
573, Doleman, 1995 Del Super. LEXIS 235 at *22
n.2; see also Sarnicola v. County of Westchester, 229
F. Supp. 2d 259, 268-70 (S.D.N.Y. 2002)
(investigatory visual body cavity search justified by
“reasonable suspicion”); Harden v. Flowers, 2003
U.S. Dist. Lexis 7213 (N.D. Il. 2003) (unpublished
decision) (same): Liston v. Steffes, 300 F. Supp. 2d
742, 757 (D. Wis. 2002) (same).
And even though the aforementioned courts
have agreed on the “reasonable suspicion” standard,
they have split as to why this standard is required.
The Tenth and Eleventh Circuits, along with the
state courts of Maryland and Delaware, have simply
held that the Fourth Amendment “reasonableness”
mandate requires the police to have “reasonable
suspicion” before conducting a strip and visual body
5 In Evans, the Eleventh Circuit ruled that while the
police must have “at least” reasonable suspicion to conduct
investigatory visual body cavity searches incident to arrest, it
cautioned that perhaps the “actual standard” was “higher.”
407 F.3d at 1279
cavity search of an arrestee to find evidence of a
crime. Archuleta, 523 F.3d at 1284-85 (citing Foote
v. Spiegel, 118 F.3d 1416, 1425-26 [10t» Cir. 1997]);
Evans, 407 F.3d at 1279: Nieves, 383 Md. at 573:
Doleman, 1995 Del Super. LEXIS 235 at *22 n.2.
Conversely, the First, Seventh, and Eighth Circuits,
and the state courts of Connecticut and now New
York, have analyzed the propriety of such searches
under Bell, and from Sell, have concluded that
“reasonable suspicion” is required. Campbell, 499
F.3d at 717-18; Richmond, 490 F.3d at 1008-10:
Swain, 117 F.3d at 7; Hall, 10 N.Y.3d at 303;
Jenkins, 82 Conn. App. at 125
Hence, among the jurisdictions that permit
warrantless visual body cavity searches of arrestees
to recover evidence, there is significant confusion as
to which legal standard applies. In fact, even within
individual circuits, different legal standards have
been employed. For example, in recent decisions,
the First, Eighth, and Eleventh Circuits, like the
intermediate appellate court here (App. 45a-46a),
have analyzed strip and visual body cavity searches
of arrestees under both the “reasonable suspicion”
standard (Swain, 117 F.3d at 7, Richmond, 490 F.3d
at 1008-10, Evans, 407 F.3d at 1279), and the four-
factor Bel] test (Cofield, 391 F.3d at 336-38,
Williams, 477 F.3d at 977, Peachtree City, 961 F.2d
6 The five judges writing for the majority here (App.
2a), as well as every justice on the intermediate appellate court
(App. 47a), found that the police had “reasonable suspicion” to
conduct the strip and visual body cavity search of respondent
(App. l4a, 46a).
at 192-93). Similarly, in Texas, that state’s highest
court for criminal appeals, while agreeing that the
visual body cavity search of the arrestee was lawful,
split four to three as to whether the search was
governed by Be// or whether it was governed by a
“reasonable suspicion” standard. See McGee, 105
S.W.3d at 616-19.
Standing opposite to the jurisdictions that
permit warrantless searches, the Ninth Circuit
Court of Appeals and the courts of Virginia have
concluded that the Fourth Amendment requires a
warrant to conduct visual body cavity searches of
arrestees when those searches are not justified by
threats to institutional security (App. 2la). See
Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449 (9t» Cir.
1991); Burton v. Spokane, 2007 US Dist LEXIS
42101, *10 (E. D. Wash. 2007) (unpublished
decision); King v. Commonwealth, 49 Va. App. 717,
724-27 (Va. Ct. App. 2007); Aughes v.
Commonwealth, 31 Va. App. 447, 460 (Va. Ct. App.
2000); Commonwealth v. Gilmore, 27 Va. App. 320,
331 n. 5 (Va. Ct. App. 1998); see also McGee, 105
S.W.3d at 619-20 (Price, J., dissenting) (warrant
required to conduct visual body cavity searches of
arrestees).?7 Put differently, these courts have
concluded that investigatory visual body cavity
searches of arrestees fall completely outside the
“reasonableness” ambit of Be//.
* Other states have passed statutes requiring a warrant
for investigatory visual body cavity searches of arrestees. See,
e.g. N. J. Stat. Ann. § 2d:161a-3 (West 1998); Tenn. Code. Ann.
§ 40-7-121(a) (1998).
20
These courts have required warrants because
they liken visual body cavity searches to intrusions
into the body which, under Schmerber v. California,
supra, are permitted without a warrant only under
exigent circumstances (App. 16a-17a). See Fuller,
950 F.2d at 1449; Hughes, 31 Va. App. at 460;
McGee, 105 S.W.3d at 619-20 (Price, J., dissenting).
And, these same courts have found Be//, which
permitted warrantless visual body cavity searches of
pretrial detainees, inapplicable to investigatory
visual body cavity searches because the searches
conducted in Be// were performed for the paramount
governmental interest of maintaining institutional
security in residential detention centers and prisons,
a justification that is absent for investigatory
searches of arrestees (App. 20a). See Gilmore, 27
Va. App. at 331 n. 5.
Further, while this Court created the Bel/
reasonableness test for “convicted prisoners” and
“pre-trial detainees” -- 1.e., people who had lost
“some” of their Fourth Amendment rights upon their
commitment (App. 24a) -- the aforementioned courts
have ruled that arrestees, who have not yet even
been arraigned and entered into the prison system,
enjoy greater constitutional protections. See, e.g.,
Fuller, 950 F.2d at 1448; King, 49 Va. App. at 725:
Gilmore, 27 Va. App. at 331 n. 5; see also Salinas v.
Breier, 695 F.2d 1073, 1083 (7th Cir. 1982) (“there is
considerably greater constitutional power in the
police to search the bodies of persons in custody than
the bodies of persons not in custody”). Thus, for the
courts that require warrants, not only is Bel/
inapplicable for the two aforementioned reasons, but
2]
the visual body cavity searches constitute intrusions
into the body under Schmerber.®
This issue has split not only the courts, but also
legal scholars. Some argue for the Ninth Circuit’s
standard, concluding that the Fourth Amendment
requires that investigatory searches be subject to a
determination by a neutral and detached magistrate.
See, e.g., Eugene Shapiro, Strip Searches Incident to
Arrest: Cabining the Authority to Humiliate, 83 N.
Dak. L. Rev. 67, 108 (2007) [hereinafter Shapiro,
Strip Searches Incident to Arrest|; William
Simonitsch, Visual Body Cavity Searches Incident to
Arrest: Validity Under the Fourth Amendment, 54
U. Miami L. Rev. 665 (2000) [hereinafter Simonitsch,
Visual Body Cavity Searches]; Michael G. Rogers,
Bodily Intrusions in Search of Evidence: Fourth
Amendment Decisionmaking, 62 Ind. L.J. 1181, 1191
(1987). Others suggest that such strip and visual
body cavity searches incident to arrest fall outside
the warrant requirement and that the reasonable
suspicion standard should apply. See, e.g., Helmer,
Strip Search and the Felony Detainee, supra.
In sum, a deep divide has developed among the
federal and state courts with regards to the
propriety of conducting visual body cavity searches
of arrestees to recover evidence. While the majority
of jurisdictions have held that the Fourth
*’ The two concurring judges here, in writing that a
warrant should be required for investigatory visual body cavity
searches of arrestees. expressly relied on this reasoning (App
18a-23a).
Amendment permits such warrantless searches, the
Ninth Circuit Court of Appeals and the courts of
Virginia require a warrant absent’ exigent
circumstances. And even among the states and
circuits that allow warrantless visual body cavity
searches incident to arrest, the courts are split as to
what constitutes the appropriate legal standard for
evaluating the prepriety of such searches. Some
courts follow the four-factor Be// test, while others
have held that Be// demands “reasonable suspicion.”
Still others have applied the “reasonable suspicion”
standard, but have done so from outside the Bel/
paradigm. Lastly, courts, while approving of
warrantless searches, have even required the higher
standard of probable cause.9
What these differing opinions among the courts
and scholars highlight, and what the division in the
New York Court of Appeals suggests, is that the
guidance of this Court is urgently needed. See, e.zg.,
Deborah MacGregor, Stripped of All Reason? The
Appropriate Standard for Evaluating Strip Searches
of Arrestees and Pretrial Detainees, 36 Colum. J.L.
& Soc. Probs. 163, 206-07 (2003) (the “varied
® This confusion is hardly surprising given that this
Court's decisions in other areas are cited mn support of the
opposite conclusions reached by courts nationwide on the issue
now presented. Compare Maryland v. Bure, 494 U.S. 325
(1990) (post-arrest searches of property must be justified by
specific facts establishing that search was _ necessary),
Schmerber, 384 U.S. at 757 (intrusions into body require
warrant), with Bell, 441 U.S. at 520 (warrantless visual body
cavity searches of detainees reasonable): Robinson, 414 U.S. at
234 (full warrantless search incident to arrest permissible).
Nm
thd
approaches lower courts have taken to analyzing the
question of arrestees’ ... rights to be free from
unreasonable strip searches demonstrate the level of
confusion that exists in this area of the law. Such
confusion in a major area of civil rights can lead to
an increase in lawsuits and frustration on the part of
correctional officials and detainees.”); see also
Shapiro, Strip Searches Incident To Arrest, supra at
67 (“‘[olne of the more puzzling characteristics of
current Fourth Amendment jurisprudence has been
the inadequacy of judicial evaluation of [arrestees’]
strip searches”).
The need to resolve this conflict among the lower
courts is especially pressing because in Virginia
there is a direct conflict between the state courts and
the Fourth Circuit Court of Appeals, which has
jurisdiction over that state. Compare Amaechi, 237
F.3d at 361-63 (strip and visual cavity searches
analyzed under Se// reasonableness factors), with
King, 49 Va. App. at 724-27 (warrant needed for
investigatory visual body cavity search of arrestee).
C. This Case is the Perfect Vehicle for Deciding
This Extremely Important and Frequently Arising
Issue of Law.
Without question, a strip and visual body
cavity search subjects an arrestee to a “gross
interference” in his personal privacy. See Swain,
117 F.3d at 6 (citing Arruda v. Fair, 710 F.2d 886,
887 [1st Cir. 1983]). Such a search, regardless of the
manner in which it is conducted, is_ an
“embarrassing and humiliating experience.” Boren
v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir. 1992);
24
see also Kennedy v. Los Angeles, 901 F.2d 702, 711
(9th Cir. 1990); Mary Beth G., 723 F.2d at 1272. The
intrusive nature of these searches alone evinces that
the constitutional limits on such searches should be
dictated by this Court. Notwithstanding the obvious
importance of this issue, litigation concerning the
propriety of such searches arises very frequently
because the question has not been addressed in this
Court. The result, as noted, has been a deep split.
And this case presents an ideal opportunity
for this Court to resolve this split and decide
whether the Fourth Amendment permits
warrantless strip and visual body cavity searches of
arrestees. The New York Court of Appeals squarely
confronted the issue of whether it was
“constitutionally permissible for police to subject a
person arrested for a drug sale to a [warrantless]
visual body inspection” (App. la). In deciding that
issue, the majority opinion directly concluded “that
the Fourth Amendment does not prohibit a visual
cavity inspection if the police have at least a
reasonable suspicion to believe that contraband,
evidence or a weapon is hidden inside the arrestee’s
body” (App. 8a). The majority based this rule on the
Bell “balancing test” (App. 7a-8a). Thus, this case
presents no procedural hurdles that could prevent
this Court from reaching this central issue.
25
2. IN. HOLDING THAT THE POLICE
INTRUDED INTO RESPONDENTS BODY
BY PULLING ON THE STRING
PROTRUDING FROM HIS RECTUM -- AND
THEREFORE THAT A WARRANT WAS
REQUIRED UNDER SCHMERBER -- THE
MAJORITY OPINION OF THE NEW YORK
COURT OF APPEALS CONFLICTS WITH
THAT OF OTHER COURTS NATIONWIDE.
MOREOVER, THAT OPINION CREATES A
DANGEROUS LEGAL STANDARD THAT
CONTRAVENES THIS COURT'S
CONTROLLING PRECEDENT.
In Schmerber, this Court reaffirmed the well-
settled principle that there is an “unrestricted” right
to search the accused incident to a lawful arrest “to
discover and seize the fruits or evidences of crime.”
384 U.S. at 769. However, this Court determined,
the rules governing typical searches incident to
arrest have “little applicability with respect to
searches involving intrusions beyond the body’s
surface.” Jd. Rather, where “intrusions into the
human body are concerned,” police must have a
“clear indication” that evidence will be found inside
the body, and the police must first obtain a warrant
unless there are exigent circumstances that justify
dispensing with the warrant. /d. at 770.
The Schmerber case involved the warrantless
extraction of blood via a needle inserted into the
defendant's arm. The extraction was incident to
Schmerbers lawful arrest for driving under the
influence of alcohol. This Court opined that a
warrant was ordinarily required for such an
26
intrusion inside the body. /d. However, because an
arrestee’s blood-alcohol level “begins to diminish
shortly after drinking stops,” time was critical.
Therefore, the police were presented with exigent
circumstances that justified dispensing with the
warrant. /d.
At issue here is what constitutes an
“intrusion[ | beyond the body’s surface” requiring a
warrant under Schmerber. The four judges writing
for the majority held that by pulling the string that
was protruding three inches beyond the surface of
respondent’s rectum, the police intruded into
respondent’s body, and therefore, under Schmerber,
they should have first obtained a warrant (App. 15a).
As a result, the majority suppressed the recovered
drugs and dismissed the felony indictment. The
three judges in dissent argued that because no
“officer put a hand or implement in [respondent’s]
body,” “Schmerber [was] inapplicable ... for the
simple reason that no one_ intruded into
[respondent’s] body” (App. 33a).
Like the majority and dissent here, courts
nationwide have split over whether the removal of
an item partially protruding from a suspect’s body
cavity constitutes an intrusion into the body
requiring a warrant. By granting certiorari, this
Court will obtain an opportunity to settle this split
in jurisprudence, clarify what constitutes an
intrusion into the body under Schmerber, and
reverse this erroneous decision of the New York
Court of Appeals.
27
A. Courts Nationwide Have Split On The Question
Of Whether the Removal Of An Object Protruding
From An Arrestee’s Body Cavity Is An Intrusion
Into The Body Within The Meaning Of Schmerber.
As explained, in Schmerber, which involved
the insertion of a needle into the arrestee’s arm,
puncturing his skin in order to withdraw blood, this
Court forbade warrantless “intrusions into the body”
absent exigent circumstances.
From this, in the forty years since Schmerber,
courts have unanimously held that the insertion into
the body of a foreign object, such as an endoscope,
surgical instrument, or speculum, constitutes an
“intrusion into the body” under Schmerber. See, e.g.,
Winston v. Lee, 470 U.S. 753, 755 (1983) (Schmerber
applied to warrantless surgery to remove bullet
embedded in skin); United States v. Nelson, 36 F.3d
758, 761 (8 Cir. 1994) (warrantless endoscopic
examination unlawful under Schmerber); United
States v. Cameron, 538 F.2d 254, 258 (9t» Cir. 1976)
(enema and forced consumption of laxatives ruled
unlawful under Schmerber); State v. Clark, 654 P.2d
355, 361 (Haw. 1982) (penetration of vagina with
speculum to retrieve money, unlawful under
Schmerber).
The same is true for the digital penetration of
an arrestee’s body cavities. United States v.
Oyekan, 786 F.2d 832 (8th Cir. 1986) (digital “rectal
probe and pelvic examination” of arrestee
unreasonable under Schmerber): Amaechi, 237 F.3d
at 361-63 (digital penetration of arrestee’s vagina
unlawful); Gilmore, 27 Va. App. at 320 (insertion of
28
hand inside vagina to recover money, unlawful
under Schmerber); State v. Fontenot, 383 So. 2d 365
(La. 1980) (manual retrieval of bottle from inside
vagina during “pelvic examination” unreasonable
under Schmerber). This is because those types of
searches involve the actual police intrusion beneath
the body’s surface, like in Schmerber. Thus, for the
aforementioned searches, absent exigent
circumstances, the police must obtain a warrant.
However, where the search of an arrestee does
not involve the physical penetration of the human
body, the courts have been unable to agree upon a
rule. For example, as explained in Point I, supra,
the Ninth Circuit Court of Appeals and the courts of
Virginia hold that a mere visual inspection of an
arrestee’s body cavities constitutes an intrusion into
the body under Schmerber. See Fuller, 950 F.2d at
1449 (warrant required for visual body cavity search
of arrestee because Schmerber governs all invasive
searches “whether by a needle ... or a _ visual
intrusion into a body cavity”); Aing, 49 Va. App. at
724-27 (warrantless visual body cavity search falls
under Schmerber); Commonwealth v. Moss, 30 Va.
App. 219, 224-26 (Va. Ct. App. 1999) (applying
Schmerber to strip search). Similarly, courts have
held that an x-ray incident to arrest constitutes an
intrusion into the body requiring a warrant. See
United States v. Allen, 337 F. Supp. 1041 (E.D. Pa.
1972) (x-ray of arrestee falls under Schmerber):
State v. Palmer, 803 P.2d 1249 (Utah. Ct. App. 1990)
(same); People v. Williams, 157 Il. App. 3d 496 (IIL.
App. Ct. 1987) (same); State v. Mabon, 648 S.W.2d
271 (Tenn. Crim. App. 1982) (same); see also United
States v. Elk, 676 F.2d 379 (9th Cir. 1982) (in
29
context of border search, held that Schmerber
applied to x-ray search). But, as noted in Point I(B),
supra, the majority of federal and state courts have
held that visual searches and inspections, which
involve no instrumental or digital penetration of the
body, do not constitute an intrusion into the body
under Schmerber.
Likewise, the federal and state courts have
failed to come to agreement as to whether the
swabbing of the inside of an arrestee’s mouth to
obtain saliva for a DNA sample constitutes an
intrusion into the body under Schmerber. See
United States v. Nicolosi, 885 F. Supp. 50. 53
(E.D.N.Y. 1995) (because critical clement of
Schmerber was the collection of “physical evidence
below the skin” versus evidence “outside the skin,”
warrant required to swab arrestee’s mouth for
saliva); see also In re: Shaddie Clark Shabazz, 200 F.
Supp. 2d 578 (D.S.C. 2002) (same); Henry v. Ryan,
775 F. Supp. 247 (N.D. Ill. 1991) (same); but see In
re Nontestimonial Identification Order Directed To
R.H., 171 Vt. 227, 233-34 (Vt. 2001) (critical element
in Schmerber was “piercing” the skin, thus, no
warrant required to swab arrestee’s mouth).
Most pertinent here, the courts have split as
to whether the removal of an object which is
embedded within the body, but which protrudes
outside the body and can be removed without any
actual physical penetration, constitutes an
“intrusion into the body” falling under Schmerber.
On one side, and as the four judges in the majority
ruled here, are holdings that “the removal of an
object protruding from a body cavity, regardless of
30
whether any insertion into the body cavity is
necessary, is subject to the Schmerber rule” (App.
12a). See, e.g., State v. Barnes, 159 P.3d 589 (Ariz.
Ct. App. 2007) (2-1 decision) (removal of bag of
narcotics partially secreted in the defendant's
rectum was intrusion into body under Schmerben),
review dismissed, 2008 Ariz. LEXIS 38 (Ariz. 2008);
People v. More, 97 N.Y.2d 209 (N.Y. 2002) (seizure of
bag “partially protruding” from rectum fell under
Schmerber); Hughes, 31 Va. App. at 447 (removal of
a plastic bag protruding halfway out of rectum
constituted an “intrusive physical body cavity
search” under Schmerber); State v. Kangas, 1998
Ohio. App. LEXIS 5417 (Ohio Ct. App. 1998)
(unpublished decision) (implying that if cocaine had
been partially secreted in rectum, warrant would
have been needed to remove it); State v. Bullock, 661
So. 2d 1074 (La. App. 4th Cir. 1995) (removal of
cocaine partially protruding from vagina unlawful
under Schmerber).
Other jurists, like the three judges writing in
dissent here, have taken the opposite approach,
ruling that as long as the police do not penetrate the
surface of an arrestee’s skin, Schmerber does not
apply. See, e.g., State v. Himmelwright, 551 F.2d
991 (5th Cir. 1977) (during visual body cavity search,
pohce saw cocaine-filled condom protruding from
arrestee’s vagina; removal of condom did not elevate
search to unlawful manual body cavity search);
United States v. Holtz, 479 F.2d 89 (9th Cir. 1973)
(cocaine-filled condom, which protruded out of
arrestee’s vagina, properly removed without warrant
and did not fall under Schmerber); Barnes, 159 P.3d
at 594-95 (Espinosa, J., dissenting) (removal of bag
3]
protruding from rectum not intrusion into body
under Schmerber); State v. Nieves, 383 Md. 573 (Md.
2004) (search held unlawful for lack of reasonable
suspicion, but court concluded that removal of
protruding bag was not “a physical body cavity
search” requiring warrant); State v. Jones, 887 P.2d
461 (Was. Ct. App. 1995) (removal of tube protruding
from anus during strip search was not unlawful body
cavity search); State v. Kelly, 1993 Ohio App. LEXIS
3292 (Ohio Ct. App. 1993) (unpublished decision)
(removal of condom partially protruding from rectum
not body cavity search); see also State v.
Voichahoske, 271 Neb. 64 (Neb. 2006) (while not
directly confronting issue, removal of drugs
“protruding” from rectum was part of strip search);
Taylor v. Commonwealth, 28 Va. App. 638 (Va. Ct.
App. 1998) (same). These courts have determined
that as long as the police were in a lawful position to
see the object protruding from the body cavity, 1.e.
they conducted a lawful visual body cavity search of
the arrestee, it was then proper for them to seize
what they saw in plain view (App. 36a).
In short, review of this case is needed to
clarify what constitutes an intrusion into the body
under Schmerber. See Simonitsch, Visual Body
Cavity Searches Incident to Arrest, at 671
(highlighting that this Court, in Schmerber, did “not
take the opportunity to speak more on intrusions
beyond the body’s surface,” and specifically, “on what
an intrusion entails”). While the courts of this
nation have unanimously concluded that the
insertion of ar ‘nstrument or digit into an arrestee’s
body requires a warrant under Schmerber, the
courts have split on whether other types of searches
32
Le., the visual inspection of an arrestee’s body
cavities, the x-ray of an arrestee, and the collection
of DNA from a suspect’s mouth, constitute such an
intrusion. And specifically in this situation, forty-
two years after Schmerber, the courts are sharply
split on whether the removal of an object protruding
from a suspect, but still partially concealed within
his body, requires a warrant.
B. The Majority Opinion of the New York Court Of
Appeals Is Fundamentally Flawed, And It Creates A
New and Dangerous Legal Standard That Benefits
Neither Arrestees Nor The Police.
As explained, the police in Schmerber inserted
a needle into the suspect’s arm in order to gather
evidence of the crime. Simply put, the search in
Schmerter pierced the skin of the suspect. In
examining this search, this Court held that such an
“intrusion[ ] into the body” required a warrant
absent exigent circumstance».
The decision of the New York Court of Appeals
directly conflicts with the principles and rule
enunciated by Schmerber. In that regard, in holding
that the “Schmerber rule” applied here, the majority
ruled that the “removal of an object protruding from
a body cavity, regardless of whether any insertion
into the body cavity is necessary,’ required a
warrant absent exigent circumstances (App. 12a).
Thus, while Schmerber applied expressly to
insertions into the body, the majority here turned
Schmerber on its head, ruling that Schmerber
applied “regardless of whether any insertion into the
body cavity” was performed.
33
Put differently, as Justice Espinosa wrote in his
dissent in Barnes, 215 Ariz. at 284 fn. 8, which
analyzed an almost identical search:
the record establishes that no intrusion,
gentle or otherwise, occurred,
notwithstanding the majority’s novel
theory that removal of the plastic
baggie lIpartially embedded in
defendant's rectum] ‘had the effect’ of
exerting some type of ‘force’ within the
body. Schmerber, however, does not
rely on such delicate quantum
mechanics, nor should the
reasonableness of an otherwis° lawful
search.
Similarly here, there was no intrusion into the body,
and the majority’s expansion of Schmerber should be
struck down by this Court.
Pernaps more importantly, the Court of Appeals
decision here, as the dissent aptly recognized (App.
36a), creates a cumbersome legal requirement --
obtaining a search warrant -- that provides no
benefit even to arrestees. In that regard, under the
majority's rule, when the police have lawfully
conducted a strip and visual body cavity search of a
suspect, and have lawfully observed contraband
protruding from a cavity, they must then halt the
search and secure the arrestee while the police
obtain a search warrant from a judge. In the
meantime, for the hours during which the police
await the issvance of the search warrant -- which
will inevitably be issued because its basis is the
34
direct observation of contraband -- the arrestee must
be held under constant observation that will be more
degrading than the qu’ck, non-invasive removal of
that which the warrant will necessarily order
removed. And of course, during that lengthy time
period, there will be some danger of the unintended
ingestion of the drug being concealed. In other
words, the rule benefits no one, causing state
expense and inconvenience as well as humiliation
and danger to the arrestee.
Of course, penetration of the body with either a
hand or instrument to retrieve contraband raises
grave considerations for a person's privacy, dignity,
and health, and public policy dictates that a warrant
should be required. See Schmerber, 384 U.S. at 769-
70. But here, it “makes little sense ... to require
officers to obtain a warrant ... where contraband is
visible between the cheeks of the buttocks and may
be retrieved easily, without harm to the individual,
but may be partially secreted in the rectum” (App.
36a) (citing Barnes, 215 Ariz. at 285). Indeed, as the
dissent explained here, “it is {not] unreasonable for
the officers to take, with minimal force, what they
have already lawfully seen” (App. 36a). See, e.g.,
Horton v. California, 496 U.S. 128 (1990) (police
need not obtain a warrant to seize evidence that is in
plain view and that they are lawfully situated to
observe). The majority’s warrant requirement is
even more perplexing given that, in New York as
well as other jurisdictions, the police can lawfully
seize contraband found between the cheeks of the
buttocks, see People v. Walker, 27 A.D.3d 899 (N.Y.
App. Div. 2006): Thomas, 429 Mass. at 407-08:
McGee, 105 S.W.3d at 613; People v. Wade, 208 Cal.
35
App. 3d 304 (1989), but must now obtain a warrant
when that same contraband is partially concealed in
a cavity.
Lastly, the rule espoused by the dissent here,
which would permit the warrantless recovery of
discovered contraband as long as the officer does not
have to insert an implement or hand into the
suspect's body, is a bright-line rule that makes
sense. See, e.g., New York v. Belton, 453 U.S. 454
(1981) (Fourth Amendment doctrine should be
expressed in “readily applicable” terms, and should
not require the “drawing of subtle nuances and
hairline distinctions”). It permits the police
promptly and efficiently to complete necessary
searches that have little chance of injuring the
suspect, United States v. Ross, 456 U.S. 798 (1982)
(“When a legitimate search is under way, and when
its purpose and its limits have been precisely
defined, nice distinctions ... must give way to the
interest in the prompt and efficient completion of the
task at hand”), while it requires the police to obtain
judicial sanction before undertaking the _ highly
intrusive step of penetrating the suspect’s body.
C. There Is No Doubt That This Issue Presents a
Federal Question.
Finally, this issue undoubtedly presents a
question of federal constitutional law. In ordering
that the drugs recovered from respondent’s rectum
be suppressed, the majority held that “when the
police physically removed the object that was
attached to the string without first obtaining a
warrant, they conducted an unreasonable manual
36
body cavity search in violation of the Fourth
Amendment” (App. 15a).!° In fact, the majority
specifically noted that the “preeminent decision
examining the constitutional dimensions of searches
that involve police intrusion into a person’s body is
Schmerber,” and from this “stressed that Schmerber
requires the police to cbtain a warrant authorizing
the removal of the plastic bag in the absence of the
exigent circumstances justifying an immediate
seizure of the item” (App. 4a, 15a).
The single New York state case relied upon by
the majority, More, 97 N.Y.2d at 209, also involved a
direct application of Schmerber and the principles of
the Fourth Amendment. In More, during a body
cavity search conducted at the defendant’s
apartment, the police forcibly removed a plastic bag
protruding from his rectum. In suppressing the
recovered narcotics, the Court of Appeals explained
that the “dispositive issue” was “the validity of that
seizure under the Fourth Amendment of the United
States Constitution.” More, 97 N.Y.2d at 211. And
in analyzing whether the Fourth Amendment
required a warrant, the Court of Appeals held that
the search was “at least as” intrusive as the search
conducted in Schmerber, and therefore was governed
by the clear indication and exigent circumstances
requirements of Schmerber. Id. at 213. Notably, the
majority opinion here described More as holding that
10 Here, the Court of Appeals was clearly referring to
the Fourth Amendment of the United States Constitution, as
the Search and Seizure Clause of the New York Constitution is
found in Article 1 § 12.
“the removal of the object from the defendant's
rectum without prior judicial authorization violated
the Fourth Amendment” (App. 11a).
In short, there is no doubt that the New York
Court of Appeals’ decision turned directly on federal
constitutional law.
In sum, in the forty-two years. since
Schmerber, courts nationwide have struggled to
interpret what constitutes an intrusion into the body
requiring a warrant. And in this particular context,
where the police pulled a string protruding from
respondent’s rectum, the courts are split. By
granting certiorari here, this Court can clarify what
constitutes an intrusion into the body, and further,
resolve the split among this nation’s courts.
n
38
CONCLUSION
This Court should issue a writ of certiorari
here to review the decision of the New York Court of
Appeals.
Respectfully submitted,
ROBERT M. MORGENTHAU
District Attorney
New York County
One Hogan Place
New York, New York 10013
(212) 335-9000
MARK RYAN DWYER*
ERIC S. ROSEN
VINCENT RIVELLESE
Assistant District Attorneys
Of Counsel
*Counsel of Record for Petitioner
June 13, 2008
39
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.