S.D.N.Y.: Strip search of armed robbery arrestee for weapons was valid

Defendant’s strip search at the precinct house was valid. He and his cohorts were arrested for suspicion of armed robbery, and the patdown produced no weapons. Based on the CI’s information that they were all armed, and the fact that officers had not found weapons during patdowns in the past that produced weapons at the precinct house on a full search, a strip search at the precinct house was permissible. United States v. Gonzalez, 2009 U.S. Dist. LEXIS 59742 (S.D. N.Y. March 2, 2009):

While it does not appear that Detectives Badyna and Marinez had any reason to believe that they would find drugs on Gonzalez’s person, both testified that, based on their years of law enforcement experience, arrestees could hide weapons or other contraband on their person that pat-down searches would not detect. Gonzalez’s agitation and refusal to cooperate with the strip search and the bagginess of his clothing strengthened an already-reasonable suspicion that his person contained additional evidence of criminality, a1ong the lines of that found in the Accord, or weapons. (Tr. 28-30, 101-103, 167-172). See, e.g., United States v. Asbury, 586 F.2d 973, 976-77 (2d Cir. 1978)(stating that factors leading to reasonable suspicion justifying a strip search include “defendant’s excessive nervousness, unusual conduct, [or] an informant’s tip”).

Moreover, the strip search of Gonzalez was limited in scope and occurred in a private bathroom. While four officers were present for the search, and Gonzalez was handcuffed for its duration, these conditions resulted from Gonzalez’s physical resistance to the officers and their efforts to conduct the search. With regard to the scope of that search, after the removal of Gonzalez’s pants, Detective Badyna merely removed an item protruding from Gonzalez’s buttocks in plain view. No officer reached into any bodily cavity or otherwise touched any private area of Gonzalez’s body. (Tr. 89, 103-105, 172, 194).

In the Third Circuit, “An officer’s burden of production in justifying a traffic stop is to: (1) identify the ordinance or statute that he believed had been violated; and, (2) provide specific, articulable facts that support an objective determination of whether any officer could have possessed reasonable suspicion of the alleged infraction based upon those facts. [United States v. Delfin-Colina, 464 F.3d 392,] 399 [(3d. Cir. 2006)].” The officer had the authority to order the occupants out of the car and then probable cause came into being when a tin of cocaine fell on the ground as defendant got out. United States v. Truley, 2009 U.S. Dist. LEXIS 59368 (W.D. Pa. July 13, 2009).*

A vehicle lawfully impounded is still subject to search when readily mobile under the automobile exception and inventory exception, and Gant has no application to that. United States v. Arriaza, 641 F. Supp. 2d 526 (E.D. Va. 2009).*