NY3: Tasering defendant to remove drugs from his mouth raised a Fourth Amendment question of excessive force to search

Tasering defendant to remove drugs from his mouth raised a Fourth Amendment question of excessive force to search. The trial court erred in denying his motion to suppress without a hearing. People v. Atkinson, 2013 NY Slip Op 7769, 111 A.D.3d 1061, 975 N.Y.S.2d 227 (3d Dept. 2013):

As for the cocaine recovered from defendant’s mouth after he was tased more than once, defendant raised a question as to whether that evidence was seized from him through the use of excessive force, which requires an analysis “under the Fourth Amendment’s ‘objective reasonableness’ standard” (Graham v Connor, 490 U.S. 386, 388 [1989]; accord People v Smith, 95 AD3d 21, 26 [2012]). Defendant’s affirmation described his version of the arrest and search, and his motion papers asserted that use of a taser constituted excessive force under the circumstances. The People failed to substantively respond to this argument. As the motion papers raised a factual dispute concerning the use of a taser and whether it might be considered excessive force, giving rise to a potentially unreasonable search and seizure that may require suppression of the evidence, a hearing was required (see CPL 710.60 [3]; People v Mendoza, 82 NY2d 415, 426-427 [1993]; compare People v Smith, 95 AD3d at 26, with People v Matherine, 166 AD2d 322, 322-323 [1990], lv denied 76 NY2d 1022 [1990]). We therefore hold this appeal in abeyance pending the completion of a suppression hearing on this issue (see People v Mabeus, 47 AD3d 1073, 1075 [2008]; People v Cole, 187 AD2d 873, 874 [1992]).