Define That term #194
Who Needs Law School When You've Got Hollywood?

Strip Searches For Misdemeanors and Testimonial Hearsay

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 [2003], lv denied 1 NY3d 598 [2004]; People v Jennings, 297 AD2d 644 [2002]). 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 [1986], cert denied sub nom. County of Monroe v Weber, 43 US 1020 [1987]), 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 [2004]). 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 [2006]; 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...


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Is the Pabon panel confusing something that is "testimonial" in the sense of being a response to police interrogation and a potentialy valid subject for both a Mapp and a Huntley hearing with "testimonial" in the sense of Crawford?
More importantly the act of handing over is not hearsay.
You're right, the decision is brief, but I don't think its all that informative.


I'd respectfully disagree re: whether it was hearsay, Slick. I pulled out my trusty evidence outline from law school and would note the following from the hearsay definitions section of that outline: "Statement--conduct, either verbal or non-verbal, that is intended as an assertion."

That's under the fed. rules, but I can only assume from the 3d Dept's decision that there is NY case law to that effect as well. (Perhaps I'll jump on Westlaw in a minute to confirm.)


Here's the relevant NY law:

People v. Caviness
38 N.Y.2d 227, 342 N.E.2d 496
N.Y. 1975

Hearsay, the exclusion of which is perhaps the best known feature of Anglo-American law (Fisch, New York Evidence, s 756), has been subjected to a variety of definitions. Rule 63 of the Uniform Rules of Evidence, approved by the American Law Institute and American Bar Association, defines hearsay evidence as ‘(e)vidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated.’ This enunciation must be read in connection with the connotation accorded to ‘statement’ in rule 62, that it ‘means not only an oral or written expression but also non-verbal conduct of a person intended by him as a substitute for words in expressing the matter stated’ (Comment, Uniform Rules of Evidence, rule 63), and follows Wigmore in defining hearsay as an extrajudicial statement **499 which is offered to prove the truth of the matter stated (5 Wigmore, Evidence (3d ed), s 1361; see, also, Richardson, Evidence (Prince-10th ed), s 220; McCormick, Evidence (2d ed. s 245, p. 584; 1 Mottla, New York Evidence, s 187; Morgan, Hearsay and Non-Hearsay, 48 Harv.L.Rev. 1138, 1144).


Yes - a communicative gesture can be hearsay. Handing over an item is not necessarily a "gesture" or communicative.

However, rereading the opinion, it looks like there was some oral communication that accompanied the handing over that was wrongly elicited and accepted as testimony - most likely the content of the officer's question or possibly something the possessor said when handing it over.

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