NY: “All persons present” warrant did not justify search of those without probable cause or a strip search

All persons on the premises warrant did not justify the search of the defendant without showing probable cause. Ergo, the strip search of all persons present was also invalid. People v. Mothersell, 2010 NY Slip Op 2675, 14 N.Y.3d 358, 926 N.E.2d 1219, 900 N.Y.S.2d 715 (2010), rev’g People v. Mothersell, 59 A.D.3d 995, 873 N.Y.S.2d 406 (4th Dep’t, 2009):

Our conclusion that this 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. Indeed, we think it 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 (a “drug factory”) or their use (a “shooting gallery” or “drug house”), and that all those present at the time of the contemplated search will probably be in possession of contraband or other specified evidence of illegality. Although the predicate for this kind of warrant cannot, consistent with the essential constitutional purpose of protecting persons from unreasonable searches, be less than exacting, the warrant may still have utility. Its utility, however, may not permissibly arise, as it apparently has in practice, from any relaxation of the requirement of probable cause as to each person targeted for search or seizure.

While the warrant’s invalidity is dispositive of defendant’s entitlement to suppression, we briefly address defendant’s second point in view of the hearing testimony indicating that strip searches are commonly performed solely on the authority of all-persons-present warrants.

We have held that a post-arrest strip search must be based upon reasonable suspicion that an arrestee is hiding contraband beneath his or her clothing, and that a search involving visual examination of an arrestee’s anal and genital cavities — a distinctly elevated level of intrusion, which must be separately justified — may not be performed except upon a “specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity” (People v Hall, 10 NY3d 303, 310-311, 886 N.E.2d 162, 856 N.Y.S.2d 540 [2008], cert denied U.S. , 129 S Ct 159, 172 L. Ed. 2d 241 [2008]). In this connection, we stressed in language particularly resonant here that “visual cavity inspections … cannot be routinely undertaken as incident to all drug arrests or permitted under a police department’s blanket policy that subjects persons suspected of certain crimes to these procedures. There must be particular, individualized facts known to the police that justify subjecting an arrestee to these procedures (see generally People v McIntosh, 96 NY2d 521, 525, 755 N.E.2d 329, 730 N.Y.S.2d 265 [2001]). Our precedent on this point is unequivocal: the police are required to have ‘specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion (People v Cantor, 36 NY2d 106, 113, 324 N.E.2d 872, 365 N.Y.S.2d 509 [1975]), although they are allowed to ‘draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person’ (United States v Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 [2002] [internal quotation marks omitted].” (id. at 311 [emphasis added]).

Thus, even where there is probable cause for an arrest, and a suspect has been arrested — something that had not yet occurred at the time of the search of defendant — there must, in addition to the predicate for the arrest, be grounds to justify the very significant intrusion of a strip or visual body cavity search 1. It is not enough that there is probable cause to suppose that a person possesses contraband or that pursuant to a warrant there may exist grounds for a non-strip search; where a strip search is to be performed, there must also exist “particular, individualized facts known to the police that justify subjecting an arrestee to these procedures” (id.), i.e., specific facts to support a reasonable suspicion that a particular person has secreted contraband beneath his or her clothes or in a body cavity. Such a predicate did not exist at the time that the present warrant was sought and, accordingly, these extraordinary intrusions could not have been within any authority the warrant was capable of conferring.