I was reviewing recent decisions from the Appellate Divisions and two short criminal decisions caught my eye.
The first is a decision from the Third Department, People v Banks, 2007 NY Slip Op 01636. What interested me about this decision was the part of the decision that set forth the applicable law regarding warrantless strip searches for those in custody on a misdemeanor charge. The Court stated that:
(D)efendant argues that the strip search was conducted in violation of his constitutional rights. In the absence of a reasonable or founded suspicion that a person in custody is concealing weapons or contraband, a person in custody on a misdemeanor or other minor offense has a constitutional right to be free from warrantless strip searches (see People v Kelley, 306 AD2d 699, 700 , lv denied 1 NY3d 598 ; People v Jennings, 297 AD2d 644 ). At the Mapp hearing, one of the Amsterdam police officers testified regarding a policy of conducting strip searches of every arrestee remanded to the local correctional facility. Notwithstanding the unconstitutionality of such a policy (see Weber v Dell, 804 F2d 796, 802 , cert denied sub nom. County of Monroe v Weber, 43 US 1020 ), here, not only were the Amsterdam police advised by the Schenectady police of their suspicion that defendant was secreting something in his pants, the Amsterdam police observed defendant, while in their patrol car, attempting to reach in his pants, causing the officer to conclude that the information from the Schenectady police was accurate and that defendant was attempting to remove something and secrete it in the police car. We conclude that the Amsterdam police properly formed a reasonable suspicion that defendant had contraband on his person and that the strip search was therefore reasonable.
I think it's extremely important have this information easily and readily accessible via internet search, since I believe many criminal defense attorneys are unaware of to the circumstances under which strip searches can be legally conducted. And, in my experience, many jails routinely conduct strip searches on all of those taken into custody regardless of the charges pending against an inmate. Hopefully, this case will be of assistance to other lawyers who either read my blog on a regular basis or who stumble upon this post as a result of an internet search.
People v Pabon(Adres) 2007 NYSlipOp 50326(U), is a short, but informative decision from the First Department. In Pabon, the Court considered the issue of whether non-testifying coparticipant's response to a police officer's request, which consisted of handing over what the defendant had given her, was testimonial in nature. The Court concluded that it was and ordered a new trial:
As the District Attorney candidly concedes, defendant's conviction must be reversed based upon the improper admission of hearsay evidence violating defendant's constitutional right of confrontation (see Crawford v Washington, 541 US 36 ). The non-testifying coparticipant's response in handing over contraband after being asked by police to produce what defendant had given her was testimonial in nature, since the attendant circumstances objectively indicated that the primary purpose of the police interrogation was not to facilitate police assistance in the face of an ongoing emergency but "to establish or prove past events potentially relevant to later criminal prosecution." (Davis v Washington, 126 S.Ct. 2266 ; see and compare People v Bradley, ___NY3d___, 2006 NY Slip Op 09501, filed Dec. 19, 2006). Thus, admission of this critical evidence as to the coparticipant's demonstrative response constituted a violation of defendant's Sixth Amendment confrontation rights, a violation which, on this record, cannot be considered harmless beyond a reasonable doubt...