Fourth Amendment: People v. Mothersell

New York State Court of Appeals

Fourth Amendment

Strip Searches

People v. Mothersell
No. 43
Appealed from the Fourth Department

Background: The contraband the defendant stands convicted of possessing was recovered from his person by means of a strip-search conducted on the authority of a warrant purporting to authorize the search of all persons present at the time of its execution. The defendant now contends, as he did before the county court and before the Appellate Division, Fourth Department, that there was not a sufficient predicate for issuance of the warrant and that, even if it was issued properly, it did not authorize the strip search performed. The court denied the suppression motion, finding that although the search at issue was “more intrusive than merely a strip search,” and involved “the conducting of a visual body cavity search,” it was authorized by the all-persons-present warrant and was conducted reasonably. Upon the denial of his motion, the defendant entered a plea to criminal possession of a controlled substance in the fifth degree.
The Fourth Department panel affirmed the ensuing judgment of conviction, explaining that the warrant application established probable cause to believe the apartment was being used for the sale of controlled substances and that anyone present was involved in the ongoing illegal activity.

Ruling: The court agrees with the defendant. In his suppression motion, the defendant specifically alleged there was no adequate factual basis for the all-persons-present warrant and that, “[e]ven if the warrant were to be viewed as allowing [him] to be seized and searched during [its] execution, it was a violation of [his] rights under the Fourth Amendment to the U.S. Constitution and Article 1, section 12 of the New York Constitution to be subjected to a body cavity search based solely on the ‘all persons present’ warrant and his mere presence at the target residence.” The prosecution responded that the search warrant was issued validly and executed properly, and also characterized the search as a “strip search” that did not involve a cavity search.
The only statement in the warrant application even purporting to justify the issuance of an all-persons-present warrant is the one in which the deponent offers on the basis of her past experience that it is “not uncommon that persons found in the subject residence could reasonably be expected to conceal cocaine.” The court notes that the conclusion that the “all-persons-present warrant is not valid, should not be taken as signifying a departure from Nieves’s initial holding that warrants of this sort are not categorically unconstitutional.” The court believes it is clear that surveillance of a location may yield a factual basis to infer with the requisite force that the place is devoted to an ongoing illicit purpose, such as the manufacture or marketing of narcotics and that all of those present at the time of the contemplated search probably will be in possession of contraband or other specified evidence of illegality. The order of the Appellate Division is reversed, the motion to suppress is granted and the indictment is dismissed.

Ameer N. Benno for the appellant, and James P. Maxwell for the respondent