Gonzalez v. City of Schenectady

Suisse classified settlement Credit Docket No. 11-5403. eomp[en- as other

payment “[w]ages, tips, United States Court of Appeals, Form Gerstenbluth’s W-2. sation]” Circuit. Second sufficient Gerstenbluth has not offered evi- to suggest pay- dence that the settlement Jan. Submitted: 2013. anything ment was else. Aug. Decided:

CONCLUSION above, For reasons set forth we judgment AFFIRM the of the District granting summary judg- IRS dismissing complaint against ment Suisse. Credit GONZALEZ, Plaintiff- Jonathan

Appellant, SCHENECTADY; OF CITY John Malo- ney, individually capacity in his employee City

as an of the of Schenec- tady, York, Department; New Police Daley, individually and in his

Sean capacity City employee as an

Schenectady, York, New Police De- Peters, partment; individually Eric capacity employee in his an as Schenectady, York, New Department; County Police of Sche- nectady, Defendants-Appellees. especially plaintiff But tax consequences: where the defendant is an em- who settles ployer or employer, exempt pay former would not FICA taxes on the settlement payment ostensibly ADEA settlement from FICA taxes amount —because award (as urges), merely drop especial- "payment Gerstenbluth could create the claim”— ly employees plaintiff prevails anomalous results. Two obtain- whereas the who at trial ing damage pay identical from would We recovery. awards their em- FICA taxes on the ployers, through justification asymme- one and the can settlement other think of no for this trial, potentially disparate after could suffer trical treatment. LeBow, Associ- Brian LeBow and

James NY, PLLC, York, for ates, Appellant. New Carter, Con- Joseph Murphy, Michael Laird, Case, Blackmore, Maloney & boy, NY, P.C., Albany, Appellees.

JACOBS, Judge, Chief Before: CHIN, Judges. Circuit

POOLER JACOBS, Judge: DENNIS Chief brought against suit Gonzalez Jonathan Schenectady and County the and Schenectady under police three officers alleging § 1983 and law arrest U.S.C. state and of a cause conduct without the body cavity violation of visual search In an area known Fourth Amendment. activity, told a confiden- Gonzalez (who wire), a wearing tial informant was get you you I can what- “What do need? arrested, you ever need.” Gonzalez was station, police subjected to the and taken to a visual search. Gonzalez required was off his clothes and take wall, a he his against spread where stand legs spread Officers saw and his buttocks. which protruding plastic bag, a contained crack cocaine. pos- with criminal charged

Gonzalez was and, after of controlled substance session motion, losing suppression his was convict- jury ed and two-and-a- by a sentenced imprisonment half two years’ followed The New years’ post-release supervision. Court, Division, Appellate York the Department, Third reversed conviction the visual ground unlawful, relying on a New search was case, People Appeals York Court after that was decided place. took in the brought suit Northern Gonzalez York, New under 42 District of U.S.C. alleging false station, arrest and unlawful At Officers Peters and search, naming City, County, Maloney elicited background Gonzalez’s in- formation, and the three officers then involved with the told him to take his granted search. The district court clothes off. sum- When Gonzalez un- was dressed, mary judgment Maloney in favor of defendants on instructed Officer him to wall, against stand ground qualified spread immunity. legs, Gonza- his spread his appeals, reasons, lez buttocks so following and for the in- could.see side. The affirm. officers observed a plastic we “little

bag sticking out ... of [his] rectum.” alleges Gonzalez that one of the officers BACKGROUND then “put fingers his rec- [Gonzalez’s] May On Schenectady Police tum penetrating [his] rectum” and re- Department conducting buy-and- moved a bag containing drugs. He claims operation using bust a confidential infor- (as opposed to storage) wearing mant who was a wire. The confi- caused him to bleed for approximately a dential informant parking drove to a lot year afterwards. Defendants assert an area of Schenectady known as a drug pulled Gonzalez it out himself. mart. With him were a woman and her Gonzalez charged pos- criminal boyfriend Matt. pair got out of the car of, session a controlled substance. The

while the confidential stayed information trial court denied his suppress motion to inside. drugs search, the in found focusing exclusively

In a almost. on conversation heard whether there police via the was wire, Gonzalez, cause to Gonzalez arrest approached Matt and and asked, concluding that there “What’s was. The court up?” Matt said made he was only a passing remark “trying get legality to about the something.” Gonzalez re- “Subsequent search itself: sponded: you to [Gonza- “What do need? I can get arrest, lawfully a you you lez’s] whatever strip need.” Because conducted buy search in did fact reveal that dealer, pos- and bust was targeting [he] different said, sessed cocaine.” set,” the woman “We are all and

Gonzalez away. walked juryA convicted Gonzalez of Criminal Possession of a Controlled in Substance Officers Maloney John and Sean Daley, Degree the Third and Criminal Possession here, defendants had observed the encoun- of a Controlled Substance in the Fourth ter but did not hear the conversation. Degree, and he was sentenced to two-and- Cowell, Detective Christopher who had lis- years’ a-half imprisonment years’ and two in, tened radioed to tell them that Gonza- post-release supervision. just lez attempted had drugs. to sell Gon- zalez then walked to the bus station to On December the New York buy a Court, ticket to the Bronx to Division, visit his Appellate Third station, mother. At the bus two Department, conviction, other reversed the con officers—Robert Dashnow and defendant cluding that “there was no articu specific, Eric approached Gonzalez with lable factual basis supporting a reasonable Peters — guns drawn, told him get on the ground suspicion conducting cavity visual . station, outside the and searched him. Af- inspection here the evidénce relat [A]nd finding ter nothing, they placed him in a ed to the inspection sup should been have van, Daley and Officer began Gonzalez, to question pressed.” People v. 57 A.D.3d him again. (3d and search him 1222, 870 Dep’t N.Y.S.2d 529 as a

2008). Department moving party judgment Peo- is entitled to Third cited The Miller, of law. at 300. matter 10 N.Y.3d ple summary judg- (2008), assessing motion for support in 886 N.E.2d ment, all “required -resolve a Court is needed rea- its conclusion permissible all factu- ambiguities draw they would find con- suspicion sonable party against al body cavity. inferences favor traband in Gonzalez’s summary judgment granted].” [was whom a summons New York Gonzalez filed Ashcroft, Terry v. July against Supreme Court Cir.2003) (internal quotation marks omit- Schenectady, County ted). Maloney, Daley, Schenectady, and Officers argu- and Peters under U.S.C. I arrest visual ing that the qualified The doctrine of immuni Fourth Amend- search violated Gonzalez’s ty government from suit protects officials free right to be from unreasonable ment clearly if “their conduct does not violate seizures.1 Defendants re- searches and statutory established constitutional to the moved case Northern District of /.). rights which would (Hurd, person a reasonable New York district court known.” Fitzgerald, have Harlow summary case on judgment dismissed the L.Ed.2d U.S. of- concluding November qualified issues on immu immunity to qualified ficers wete entitled (1) nity plaintiff are: whether has shown “arguable for the arrest because there was making out facts violation of a constitution It probable cause.” also concluded (2) so, al if right; right whether that immunity to qualified were entitled established”; “clearly even if the for the because the law on established,” it “clearly whether was not established occurred, “objectively officer reasonable” for the having when the search Hall 2008) (in believe conduct at issue was lawful. years been decided two after Wolcott, v. Taravella Town against City search. The claims (2d Cir.2010). 129, 133-34 County were dismissed because Gonzalez liability.2 alleged only vicarious established, be clearly To “[t]he sufficiently contours of the must be DISCUSSION clear that a un reasonable official would de he is violates doing reviews novo de derstand what summary right.” cision on a motion for v. judgment. Creighton, Anderson Mkts., Inc., 640, v. Mario P & C Food F.3d U.S. L.Ed.2d 107 S.Ct. (2d (1987). Cir.2002); way, qualified see also Miller v. 523 immuni “ Ábramson, L.L.P., Wolpoff ty ‘objec & 321 F.3d shields official conduct that is (2d Cir.2003). Summary judg tively legally light if appropriate genuine legal ment is there is no rules that were established ” Sec., dispute any as to material fact and the the time it was taken.’ X-Men Inc. alleged 1. Gonzalez also state law claims before the district court decided claims distress, negligent neg- infliction emotional summary judgment motion. ligence, intentional infliction of dis- emotional tress, prosecution, impris- malicious and false appeal does dismissal Gonzalez except onment. He withdrew all of these against City County. the claims prosecution imprisonment malicious and false Patctki, (2d Cir.1999) v. 196 F.3d officers knew them in light of the specific (alterations omitted) Anderson, (quoting elements of each crime. While an officer 3034); 483 U.S. S.Ct. see also “need not proof have concrete of each ele- Taravella, 599 F.3d at 134-35. ment of a crime to probable establish arrest,” cause for an Brewton v. York, New 550 F.Supp.2d

II (E.D.N.Y.2008), probable cause means §A 1983 claim for false arrest is “more than suspicion,” bare Brinegar v. substantially the same as claim for false States, United 338 U.S. arrest under New York Weyant law. (1949). 93 L.Ed. 1879 And it cer- . Okst, (2d Cir.1996). 101 F.3d tainly means more than suspicion of some “The probable existence of cause to arrest generalized misconduct: probable “no justification constitutes and is a complete cause exists to arrest a suspect’s where arrest, defense to an action for false actions are too ambiguous to raise more whether that action brought under state generalized than a suspicion of involve- (internal law or under quota 1983.” Id. ment in activity.” criminal United States omitted); tion marks Broughton see also Valentine, Cir.2008). State, 451, 456-58, 37 N.Y.2d only facts known to the offi 335 N.E.2d 310 (1)

cers at the time of the arrest were that Gonzalez was an area known for drug A sales, and Gonzalez approached Matt question The first quali as to get offered to him “whatever [he] immunity fied is whether the officers vio question need[ed].”3 The is whether rights lated Gonzalez’s him. by arresting these supported circumstances is, That whether the officers had probable cause to arrest Gonzalez-for criminal pos cause to arrest him at the time of the substance, session of a controlled or for “In general, probable arrest. cause to ar substance, criminal sale of a controlled or rest exists when the officers have knowl for an attempt. edge reasonably trustworthy informa tion of facts and circumstances that are person sufficient to warrant a of reason Gonzalez was convicted of Criminal Pos- able caution in the person belief that the session of a Controlled Substance in the be arrested has committed or is commit Degrees.. Third and Fourth A person is ting Weyant, a crime.” 101 F.3d at 852 guilty of Criminal Possession of a Con- added). (emphasis inquiry The is' limited trolled Degree Substance the Third to “whether the facts known the arrest “when knowingly unlawfully he and pos- ing officer at objec the time of the arrest ... a drug sesses narcotic with intent to tively provided probable cause to arrest.” 220.16(1). § sell it.” N.Y. Penal Law A Couch, (2d Jaegly v. person guilty is of Criminal Possession of a Cir.2006). Controlled Substance in the Fourth De-

To ascertain the gree existence of “when knowingly unlawfully he and cause, probable we look at the facts as the possesses ... one or more preparations, arresting ... an possesses requisite "[W]here officer probable has acted cause.” Peo- on the Pacer, basis of a radio 652, 653, communication from a ple v. 203 A.D.2d personal fellow knowledge officer who has (3d 1994). Dep’t N.Y.S.2d 636 transmitted, the facts presumptively he or she n Mike, con- v. 92. N.Y.2d ple or substances mixtures compounds, (1998); ag- an ... N.Y.S.2d N.E.2d 1189 see drug [with] narcotic taining a one-eighth People Crampton, ounce or 45 A.D.3d weight also gregate 220.09(1) 2007). Dep’t § 845 N.Y.S.2d 877 more.” Id meaning of Gonza- most natural The instructive: Mike case The (that get he could Matt lez’s statement approached off-duty po- Defendant two need[ed]”) is that Gonza- [he] “whatever inquired they lice officers and whether no substance at controlled possessed lez purchasing were interested in un- moment,- and that if Matt needed type drugs. quantity and specified “get” some, have to it. Gonzalez would if asked officers defendant One possi- did preclude The statement any bags;” [sic] had “dime defendant drugs keeping bility that Gonzalez was responded only had he “twenties.” not be ex- body cavity, since it would a Ultimately, got into the defendant offi- it for deliv- that he would retrieve pected vehicle led them to the drive- cers’ there; neither did the ery then and but way building. of a Defendant told the had on indicate 'that he his statement money, give officers to him some and he might Matt name. person whatever go building get into would never saw Gonzalez make a The officers drugs. officer who had to offered transaction, anything did see nor unwilling purchase drugs go to drugs, possessed that Gonzalez as Showing along arrangement. with this mon- simply get to knowing to where opposed' he ey belonged to officer and People Eldridge, 103 them. A.D.2d Cf. admittedly that defendant afraid would (1st Dep’t 480 N.Y.S.2d 481 simply it. Because of abscond with 1984) (overturning finding probable of no to either unwillingness part officer’s officers observed defendant cause where money accompany with the defendant envelopes containing a glassine white ' the building, pro- into the transaction area). high drug in a substance no ever ceeded further and without hav- vehicle, ing exited the defendant was placed offering under to arrest sell probable without cause to Even believe drugs. possessed drugs, the officers Gonzalez Mike, had to 92 N.Y.2d might have cause arrest Appeals for Criminal Gonzalez Sale of Controlled 706 N.E.2d 1189. The Court Substance, which that the in that case requires defendant to held evidence “was “knowingly unlawfully that defendant [sold] have ... insufficient establish had drug.” ability carry a narcotic Penal the sale.” N.Y. Law the out Id. 1189; § Penal 706 N.E.2d 220.39. Under New York Law N.Y.S.2d “ 220.00, sell, Braithwaite, exchange, People means to also 162 Misc.2d ‘[s]ell’ see 613, 614-16, another, of to give dispose (N.Y.Sup.Ct. or to or N.Y.S.2d 284 offer added). 1994) (finding the same.” was agree (Emphasis to do that the evidence insuf- support York has to for Criminal Appeals The New Court of held ficient a conviction that, “in order to un- of a because support conviction Sale Controlled Substance offering theory, anything an there must offer here was but definite. “[t]he der sale ‘if I of a to sell— couched in such as can be evidence bona fide offer It was terms so’; ie., ‘you ‘you intent want an ounce or get’; that defendant had both the like $800’; I spend get Peo- to ‘once ability proceed willing to the sale.” like with I ‘you long buy place know how don’t to take later. Id. at price’; and ”). a ounce.’ N.Y.S.2d 489 N.E.2d 240. drugs did not “offer” to sell to

Gonzalez Warren, As in contingencies “several Matt because what Gonzalez said was con- between” [stand] Gonzalez’s off-the-cuff siderably of a “bona fide” offer. short Cf. statement and a sale of drugs. The offi- People Rodriguez, 184 A.D.2d cers probable therefore lacked cause to (conclud- (1st 1992) Dep’t 585 N.Y.S.2d 391 believe that Gonzalez had attempted to cocaine, ing that an offer to sell followed commit either crime. ” undercover, “asking officer for.‘two’ reaching cigarette and the for a defendant B sufficient). cocaine, containing box The to be free from ar Matt, : away Once Gonzalez walked from rest without probable cause was there was no reason to believe that he had established at the time of Gonzalez’s ar made a bona fide offer. York, rest. See Jenkins v. New probable There was therefore no causé (2d Cir.2007). 478 F.3d 86-87 Gonza to arrest Gonzalez for Criminal Sale of a lez’s false arrest claim therefore turns on Controlled Substance. whether probable the officers’ cause deter mination objectively reasonable. See id. “An objec officer’s determination is might The officers have also tively if ‘arguable’ reasonable there was probable had to cause arrest Gonzalez for probable cause at the time of the arrest— attempting either one of these two crimes. is, if ‘officers of compe reasonable person guilty attempt “A of an to com disagree tence could on prob whether the when, mit a crime intent to commit a with able (quoting cause test was met.’” Id. crime, engages he in conduct which tends Miller, Lennon v. 423-24 to effect the commission of such crime.” “ Cir.1995)). However, ‘[arguable’ proba attempt, N.Y. Penal Law 110.00. For an. ble cause should not be misunderstood to it must be shown that the defendant “com probable mean ‘almost’ cause.... If offi mitted an act or acts that carried the cers of competence would have project dangerous forward proximi within agree possessed by that the information ty to the end criminal to be attained.” the officer at the time of arrest not add did Warren, 831, 832-33, People v. 66 N.Y.2d cause, up probable it the fact that came 489 N.E.2d 240 N.Y.S.2d close does not immunize the officer.” Id. (citing People Stefano, Di 38 N.Y.2d 345 N.E.2d 548 analysis N.Y.S.2d cause set (1976)). A defendant cannot be parsing convicted out above entails a careful of Gon for Attempted Criminal Sale of -a Con zalez’s statement and a close examination contingencies trolled Substance if “several of the elements of a number of different agreement between the ... charged [stand] criminal statutes. Officers Warren, contemplated purchase.” making moment-by-moment decisions can N.Y.2d at expected pro 489 not be to undertake such a N.E.2d 240. court ject. arrived at that While Gonzalez’s statement its notwithstanding result in Warren satisfy any own does not the elements of crime, defendant had met with an undercover he was in an area known for officer and quality, quantity, person obviously discussed the sales and he said it to a price and of the purchase trawling drugs. (The.police cocaine that was for could in- among other consid- prison population, al were not talk- Matt and Gonzalez

tuit that absinthe, or Cuban erations. prostitutes, ing about experienced the Significantly, cigars.) California, 384 U.S. In Schmerber analyzed conscientiously judge state trial (1966), 16 L.Ed.2d 86 S.Ct. during the question cause

the following a suspect hospitalized was the and concluded proceeding criminal A at 1826. car accident. Id. 86 S.Ct. to arrest probable cause there was indeed smelled alcohol on policeman at the scene Gonzalez. breath, inferred from suspect’s the and that the sus- there was that and other observations therefore conclude We 768-69, cause and that the drunk. Id. at 86 S.Ct. “arguable” probable pect was immunity made the qualified hospital, At the the officer are entitled 1826. officers under a doctor to take a false arrest claim arrest and instructed for Gonzalez’s 1826. sample. Id. at 86 S.Ct. 1983.4 blood that there Supreme Court first held Ill for and for a probable cause arrest 769, 86 search incident to arrest. Id. at. of Gonzalez the station The search However, the Court held S.Ct. 1826. to Gonzalez’s Fourth question raises a as doctrine the search-incident-to-arrest unrea- right to be free from Amendment drawing of justify did not the the alone It is useful to define sonable searches. blood; police needed “a clear suspect’s the (1) analysis: proceeding before terms in fact such evidence will be indication that suspect is search” occurs when “strip 669-70, 1826. No found.” Id. at 86 S.Ct. (2) clothes; a “visu- to remove his required though, because of required, warrant body cavity al search” is one which exigent circumstance that the blood- suspect’s body cavities police observe the dissipate. would soon alcohol concentration (as by having the touching without them Id. over, squat cough, suspect to bend naked); body cavity a' “manual

while Wolfish, 441 99 S.Ct. In Bell v. U.S. any- police put when the search” occurs (1979), 60 L.Ed.2d body cavity, or take thing suspect’s into a was asked to decide whether a blan- Hall, 10 anything People out. See requiring visual policy ket N.Y.3d pretrial being for all detainees N.E.2d 162 facility who had housed a correctional Citing seen visitors was constitutional. A Schmerber, held that the consti- the Court tutionality depended of this scheme governing types “[1] The law these searches is far from settled; rules scope particular intrusion, ^[2] alter with circumstances, and the circum- the manner in which it is conducted, ^[3] stances are myriad. key precedents justification initiating it, ^[4] ar- in which it is conducted.” Id. kaleidoscopically place turn on whether the misdemeanor, 1861. The Court concluded that rest is for a or a suspect the scheme was reasonable because placed gener- “[a] whether the disposes are undertaken in bad faith also of Gonzalez’s officials’ actions This conclusion against Jones v. imprisonment or without a reasonable basis. state law false claim (2d Cir.2006); Parmley, F.3d see because "New York Law ... the officers Spitzer, grant[s] government qualified Blouin ex rel. Estate Pouliot officials immu- also Cir.2004). nity except on state-law claims where (S.D.N.Y. Lake, facility unique place fraught a wood F.Supp.2d detention is 2005); Monticello, security dangers.” Id. Village with serious Bolden v. of (S.D.N.Y.2004); F.SupP.2d 407 and Mur In we held in Weber v. Dell v. County Orange, cia 22 F.Supp.2d of precludes Fourth Amendment (S.D.N.Y.2002). holding, In so Judge performing strip/ officials from prison McMahon noted that “the Second Circuit body cavity searches of arrestees spoken directly has not to appropriate other charged misdemeanors or validity test for the. a strip of search inci- a minor unless officials have offenses Samicola, dent to a arrest.” suspicion that the arrestee is reasonable 270; Murcia, F.Supp.2d at accord concealing weapons or other contraband F.Supp.2d at 494. charged, particu- based on the crime arrestee,

lar characteristics of the 2008, the In and/or York Appeals New Court of the circumstances the arrest. Hall, People decided 10 N.Y.3d 540; Cir.1986) N.Y.S.2d 886 N.E.2d 162 In (emphases added). police Weber, observed Hall on a street cor- suspect placed ner cell, repeatedly money receive in a some- decreasing vacant the concerns from one, go a nearby bodega, into regarding jailhouse safety. Id. at 799. return a drugs few minutes later with to hand to applied This rule was later in Shain v. the customer. Id. at (2d Cir.2001). Ellison, 273 F.3d 56 540, 886 N.E.2d 162. The officers arrested plaintiff degree had arrested for first been him strip-searched him at the station harassment, a misdemeanor. Id. at 60. prior placing any to prison- him with other Weber, Relying on we held that “it was ers. Id. When the officers told him to persons established 1995 that over, they bend a string coming saw out of charged with a misdemeanor and remand- his rectum. ,ed Id. Wben Hall refused to facility a ... to local correctional have a it, remove it officers removed them- strip to be free of a search absent selves and found that it was attached ato suspicion they carry- reasonable are bag of crack cocaine. Id. ing weapons.” contraband Id. at 66. began by defining The Hall court here, Judge

Prior to the search at issue terminology at the beginning outlined McMahon of the District of Southern New It Section. then held as follows: York had decided a number of cases expanded drug-relat for Summarizing Weber arrests the relevant constitutional Westchester, Judge McMahon ed felonies. In Samicola County held precedent, search must be founded on reasonable it is clear that a a ^[1] strip “particularized suspicion” reasonable suspicion concealing that the arrestee is required strip search all suspects, clothing evidence underneath and the whether were arrested for misde search must be conducted a reason- F.Supp.2d meanors or felonies. 229 able manner. To advance to the next (S.D.N.Y.2002). She observed that level required for a ^[2] visual cavity in- justification strip spection, specific, automatic must have a “[a]n on an drug- supporting searches based arrest for a articulable factual basis suspicion related crime would be inconsistent with reasonable to believe the ar- legal concept suspicion restee secreted evidence inside totality inspection based on the of the circum the visual must be reasonably. object stances.” Id. at 273-74. She ruled to the conducted If an in Bradley Village visually same effect or other .information Green detected Id. at object arrestee would have contraband. cause that an is provides hidden inside the arrestee’s body, ^[3] 1520-21. that a warrant be dictates Schmerber in in a plaintiff placed Florence was conducting body cavity a obtained before population. The Court not- general prison emergency situation unless search ed, require “This case does not the Court More, the our decision exists. Under that would types to rule on the of searches from a object protruding of an removal where, for ex- be reasonable instances any body cavity, regardless whether held as- ample, a detainee will be without body cavity is neces- into the insertion jail signment general population to the rule sary, subject to the Schmerber is other de- without contact with substantial accomplished without a and cannot be at 1522. tainees.” Id. circumstances exigent unless

warrant police from seek- reasonably prevent B ing prior judicial authorization. dispute officers do not that 540, 886 856 N.Y.S.2d Id. right violated Gonzalez’s to be the search say, The court went on to N.E.2d 162. searches; po free from unreasonable their point unequivo- on this is precedent “Our not right sition is that violated was ‘specif- police required cal: the are have clearly need not deter established. We which, along articulable facts ic and alleged mine whether the facts make out a deductions, reasonably any logical prompt- right prior violation of a constitutional ” intrusion.’ Id. at ed th[e] clearly determining right whether that was (alteration N.E.2d 162 N.Y.S.2d Callahan, established. See Pearson v. Cantor, (quoting People v. original) 223, 236, 172 L.Ed.2d U.S. S.Ct. N.Y.2d (2009) (dispensing with the rule an (1975)). However, no case cit- N.E.2d 872 Katz, nounced in 533 U.S. Saucier court that an officer by ed the Hall said (2001), 121 S.Ct. 150 L.Ed.2d 272 individualized facts to particular, needs to first required that courts determine body cavity search. conduct visual a constitutional viola whether there was im proceeding qualified tion. to the before In Florence v. Board Chosen Free- — munity analysis). especially This is true County Burlington, U.S. holders of here, fully where the issue was not briefed -, 132 S.Ct. 182 L.Ed.2d 566 government. Id. S.Ct. (2012), Supreme again confront- (cautioning that courts should not rule general prison strip ed the issue of constitutional, issues where “the brief Florence, policies. In a mistake in a com- woefully ing questions of constitutional is puter system led to believe that inadequate”). outstanding there was an warrant for the

plaintiffs arrest. Id. at 1514. He was C pulled pursuant over and arrested to that jail, are not lia performed Defendants-Appellees warrant. Id. In officials right at issue visual search under a blanket ble under 1983 unless Court, established, clearly meaning policy. Supreme building Id. The Wolfish, right sufficient “[t]he [are] on Bell v.. held a blanket contours official would policy conducting body cavity ly visual clear that a reasonable doing that what he is violates searches on new inmates was understand constitution- al, Creighton, right.” even for misdemeanor arrestees where Anderson L.Ed.2d suspect there is no reason to U.S. deciding support whether a the view that “In the search of (1) established, clearly we ask: Was Gonzalez violated a established fed clarity? with reasonable eral' constitutional rule. the law defined Hall was decided (2) Supreme Court or the Second after the search at issue in this It Had case. a not a ruling affirmed the rule? and Would Court or Circuit though have understood Court. And wording reasonable defendant in Hall promising law that the conduct was seems existing from the “[o]ur Gonzalez— Fulton, Cnty. precedent point 160 on this Young unequivocal: unlawful?” v. of Cir.1998). required The answer the are to have ‘specific 903 which, along any to all three is no. and articulable facts deductions, logical reasonably prompted search, we had At the time of the ” intrusion,’ id. at th[e] N.Y.S.2d that the Fourth Amendment is never held added) (al (emphasis 886 N.E.2d 162 by suspicionless (strip a search violated original) (quoting teration in People v. search) cavity a body search or visual of Cantor, 106, 113, N.Y.2d felony drug person possession. arrested for (1975)) 509, 324 N.E.2d 872 one case — not Although repeatedly we have held that the cited in Hall said that an officer needs police may suspicionless not conduct a particular, individualized to conduct a facts a strip body cavity person or search of body cavity visual search.5 misdemeanor, a arrested for similarly distinguish- Shain 'v. Ellison is disagree as to officers could whether ' degree able: the arrest was for first applied felony rule to those arrested for harassment, a misdemeanor. 273 F.3d crimes, drug given propensity drug the of (2d Cir.2001). A reasonable officer who dealers to conceal contraband in their study made á of See, precedents these ramified e.g., Mary v. cavities. Beth G. of (7th Cir.1983) distinguish could arrests for such offenses Chicago, 723 F.2d as harassment from arrests for felonies— (describing violations” as one of “narcotics crimes, especially involving drugs. any felonies the “kinds of unlike traffic or other event, likely in offenses, longer good Shain is no law might give minor rise to a light v. of Florence Board Chosen Free- reasonable belief that the. arrestee of — County Burlington, in holders U.S. concealing body cavity”). an item a (who -, -, Judge McMahon seems to have had a S.Ct. cases) (2012), repeatedly full share of these has L.Ed.2d 566 which held that misde- subject meanor arrestees could be to visual emphasized applied that we have never the body cavity being placed rule from to searches of searches before Weber Shain felony general prison in as the suspects drug population, arrested for crimes. Westchester, Shain, plaintiff Shain was. 273 F.3d at Cnty. See Samicola 60,65-66. (S.D.N.Y.2002); Mur F.Supp.2d Cnty. Orange, F.Supp.2d cia v. expect police we can officers to be While (S.D.N.Y.2002). applicable familiar with black-letter law situations, commonly encountered Appeals’ The New York Court of deci- subjected personal liability People sion in 10 N.Y.3d 856 cannot be (2008), § anything under 1983 based on less. N.Y.S.2d 886 N.E.2d 162 does Cantor, People upon the trial 5. the case relied in Hall for this nouncement” court reflecting novelty. proposition, Crespo, its 29 Misc.3d does not mention the words 1203(A), "strip "body (N.Y.Sup. or search.” The 2010 WL at *8 search” Ct.2010). "pro- rule in Hall was characterized as a conducting suspicionless fact an otherwise visu- many permutations of There are so body cavity person constitutional issues al search of a arrested upon that bear a unlawful; can be for misde- a search: the arrest drug for a offense felony, a for a offense or meanor or the defendants this case are therefore not; search, strip a a can be qualified immunity.7 entitled to one; search, a manual or visual can to the person arrested be headed IV cell; single general prison population or Gonzalez also claims malicious place private of the search can be or §A claim prosecution under for the private; impetus less than prosecution for malicious looks to rele policeman’s tip, search can or be .a vant common law. Janetka v. state See hunch, or or experience observations or (2d Cir.1989). Dabe, description, or a neighborhood, law, plaintiff New York must Under =above;and some or all of the other consid- underlying proceeding that the show policeman well. The is not erations as terminated in his favor to make out a expected precedents to know all of our or prosecution malicious claim. See id. at Court, to Supreme those of the or distin- prosecution 189. “Where the did re dicta, guish holding put togeth- from or to in it acquittal, sult an is deemed have precedents line-drawing, er for or to dis- accused, ended in favor of the for these trajectories. cern follow doctrinal trends or purposes, only disposition when its final

.Otherwise, immunity qualified would be such as to indicate the innocence of the ' only cop professor to a available who is Murphy Lynn, accused.’’ 118 F.3d in procedure spare of criminal her time. (2d Cir.1997). expected cannot be to know Here, the officers found crack co personal liability such at risk of things rectum, eliminating any caine in Gonzalez’s savings, equity, policeman’s the home was, fact, guilty doubt that Gonzalez college personal liability funds. And such possession at least criminal of a controlled only liability imposed by is the. kind of (absent claim). prosecution substance. His malicious § 1988 a Monell That tells claim therefore fails. something us about the threshold of liabili- ty in these cases.6 CONCLUSION

We conclude a reasonable officer— reasons, familiar foregoing judgment even one with the For cases described not have dismissing above—would understood that of the district court all of Gon- premise against alleges 6. a suit individ- 7. Gonzalez also the defendants —that government employee ual is in substance a rights violated his Fourth when Amendment against employer wrong. suit his Doubt- they conducted manual —is political less in some of this Cir- subdivisions pulled bag of crack Cocaine out of government supplies cuit the defense counsel pulled bag Gonzalez’s anus. Who out is pays judgment person- if an officer is disputed, assuming but even it was the offi- , ally § liable under 1983. But this Circuit cers, they clearly would not have violated includes scores of counties and hundreds of so; by doing they established law once saw municipalities; towns and and there are thou- anus, bag protruding from Gonzalez’s political sands of subdivisions in the nation. it, had cause to search him for indemnify employ- Not all will of them their and we have never held that such a search judgments; many ees for cannot even requires a warrant. 10 N.Y.3d at Cf. defense; barely afford to furnish a some can 886 N.E.2d 162. keep open. the school established, clearly in their as it was foreshadowed the officers against claims zalez’s right, prior as a federal constitutional AFFIRMED. capacities is individual arrest. Gonzalez’s Judge, dissenting: POOLER, Circuit I. majority opinion its

I in the concur right whether a controlling law and its con- To determine was clear- statements “(1) I, II,1 ly I re- established2 we look to whether the to Part and IV. clusions as however, III, question Part was defined with ‘reason- as to spectfully dissent specificity’; rule re- áble whether the decisional I that the relevant because believe applica- law of the Court and the body cavity searches was garding (2d Cir.1997) majority’s Sahenectady, 115 F.3d 111 Although agree conclu- I II, arguable probable (concluding probable cause cause existed where of- sion in Part instance, previously drug I must stress: this is a exists in this ficers knew ábout sales from address). Arguable probable cause exists plaintiff's specific apartment close case. competence case, where "officers of reasonable general preva- In this 'location’s legality action disagree [their] on the could lence in sales can therefore not be Walczyk particular factual context.” [in this] enough arguable probable to create cause or Cir.2007) (inter- Rio, high drug who live in else all residents omitted). quotation marks Where the nal high areas would be vulnerable to arbi- crime at the time “only Nonetheless, known to-the officers facts trary agree arrest. I that we arrest,” (1) the location was were that may arguable probable exist- conclude cause (2) drug Gonzalez said for sales and known because the officers in this ed in this instance (em- drugs, Maj. Op. get see at 155 he could couple reputation case could the location’s added), arguable proba- phasis question of with Gonzalez’s statement. question. If the ble cause is indeed a close rely on the had not been able to resolving question qualified officers of immu factor, get Gonzalez said he could alleged second that nity, a court must decide whether the competence drugs, officers of reasonable of a was a violation constitutional conduct illegality disagree on the of their right could not right and whether the at issue was action. "clearly the time defen established” at of Katz, alleged rely something misconduct. Saucier v. on more than dant’s Officers must 194, 201, 2151, 121 S.Ct. reputation to find rea 533 U.S. the location's in order Here, (2001). disputes City no one suspicion. v. L.Ed.2d sonable See Holeman London, 184, Cir.2005) (2d right Gonzalez’s to be that the search violated New 425 F.3d searches; the defen (stating driving route in free from unreasonable that in circuitous only right enough, position is that the violated high-crime area at 4:30 a.m. not dant's alone, suspi clearly After Gonzalez standing support was not established. to cion); -get floor McCargo, arrested he was told to on the v. 46 E.3d United States searched, (2d Cir.2006) ("Reasonable yielded pat down suspi- but the and was nothing. and taken requires considerably showing Plaintiff was handcuffed less of a cion cause.”). police headquarters, where conduct repu- to If a location's than enough cavity stated "high not to a full search. Officers tation as a crime area” is ed subjected only to this search suspicion, a location’s Gonzalez was advance reasonable a narcotics of "high drug certainly he was arrested on reputation as a area" because cause, Schenectady According Police enough suggest probable fense. to the cannot be to policy, police required Although Department’s Gonza officers without more information. around, completely, put turn reputation to undress are allowed to take location’s lez wall, feet, consideration, spread his and use hands on the see United States v. Mu- his into hammad, (2d Cir.2006), spread Before tak hands to his buttocks. 463 F.3d 122-23 his boxers, identified coupled ing his officers had not be with some other indica- off it must tion, scene, id., Only spreading any after his flight contraband. such as from see n buttocks, bag and removed a particular officers located prevalence sales at a parties disagree arguable drugs. The as to whether conclude that with address in order to bag. removed the City t he or Gonzalez probable cause existed. See v. officers Martinez II. support court the existence- of ble circuit whether question; Here, question the relevant is whether a reasonable defen preexisting law under heightened standard for an anal would have understood that dant official cavity search of a arrestee was unlawful.” Shechter his or her acts were clearly by this or the foreshadowed Circuit City of N.Y., 79 Comptroller v. Court, Supreme at the time of Gonzalez’s Cir.1996) (internal (2d quotation marks New York 2006.3 The State omitted). “If was not the law that time Appellate initially Division found that the established, an official could not clearly heightened officer’s not met the rea had reasonably expected anticipate justify be sub- suspicion sonable standard to Gon search, indicating sequent legal developments, nor could he zalez’s visual Appellate Division believed the rule fairly that the law for- be said ‘know’ clearly v. People established. Gonza previously identified as bade conduct lez, 57 A.D.3d 870 N.Y.S.2d Fitzgerald, unlawful.” Harlow v. 457 U.S. (N.Y.App.Div.2008). The district court 800, 818, 102 S.Ct. 73 L.Ed.2d 396 differently, concluded stating the law (1982). requiring stringent a more standard say This not to that an action is clearly searches had not been clearly only if established the court has until People established N.Y.3d explicitly held that the behavior is unlaw- 303, 310-11, 886 N.E.2d Creighton, ful. Anderson 483 U-S. (2008)subsequent to Gonzalez’s arrest. 97 L.Ed.2d 09-cv-1434, Schenectady, Gonzalez v. No. a law repeatedly We have held is consid- (N.D.N.Y. *4 WL if ered established decisions of the 2011). majority agrees Nov. “clearly Court or this Court court, the district to the extent it for- particular ruling eshadow the issue.” states, governing types law these “[t]he Varrone settled; searches is far from Bilotti rules Cir.1997) (internal quotation marks omit- circumstances, alter with and the circum- ted) added). (emphasis However, See also id. at 79 myriad.” major- stances are the (quoting) Coughlin, ity Shabazz v. apply Regard- fails to the correct test. (2d Cir.1988) 697, (stating Supreme in less of whether the or “the ab- Court this rule, directly Circuit held this it un- specific authority directly sence of a doubtedly previous foreshadowed to Gon- point” to we look whether this Circuit or arrest, thus, I disagree zalez’s must Supreme presaged the "Court had par- the majority’s the conclusion in Part III. ruling). ticular special We have taken apply “clearly care to foreshadowed” Supreme Both the Court and this Cir standard in the context of the Fourth cuit that police have held searches within Amendment, Varrone, 78; see 123 F.3d at body require a special heightened stan Shabazz, 701, see also 852 F.2d at which In California, dard. Schmerber v. capable precise “is not definition or 757, 1826, U.S. 86 S.Ct. 16 L.Ed'2d 908 mechanical application.” Wolfish, (1966), Bell v. Supreme Court held intru 1861, 441 U.S. body’s 99 S.Ct. beyond sions surface are forbid (1979). L.Ed.2d by den Fourth Amendment the ab majority question 3. The bag states that the himself removed the his here from buttocks. Gonzalez, regards strip According search or visual to the one of the officers According Appellees, bag search. to the Gonzalez removed the from his buttocks. conducted in a reasonable man the evidence be [still] indication that of clear sence S.Ct; (citing at 86 S.Ct. ner.” Id. at found. Id. will be Schmerber, case, 771-72, the Court held at 86 S.Ct. In that 384 U.S. 1826). a drunk driver did to search for reasonableness re cause The test of the drawing intrusive justify the more quires scope to consider “the courts “[Ijnterests in human Id. blood. suspect’s intrusion, the manner in which it particular which the Fourth privacy and dignity conducted, justification initiating in any such forbid protects Amendment it, it is conducted.” place and the which mere chance that desired on the trusions Id. at 99 S.Ct. 1861.5 Id', at 769- might be’obtained.” evidence Bell, and others Following this Circuit Ry. also Skinner 86 S.Ct. 1826. See cavity wary uphold body searches were Ass’n, 489 U.S. Labor Execs. constitutional, under the test for reason as 1402, 103 L.Ed.2d 639 hesitated, stating ableness. The Circuits (“The guarantees Amendment [Fourth] and de that such searches are invasive security per- dignity, and privacy, Gallo, grading. See Hartline v. 546 F.3d invasive arbitrary certain against sons (2d Cir.2008); Mary Beth G. v. of the Government acts officers (7th Chicago, 723 F.2d direction.”) Thus, acting at their those Cir.1983) in (recognizing “strip searches absence of a clear indication4 “[i]n inspection of the anal volving the visual found, these will be in fact such evidence genital ‘demeaning, areas as dehuman require law human interests fundamental terrifying, izing, undignified, humiliating, evi- suffer the risk that such officers to signi unpleasant, embarrassing, repulsive, is an may disappear unless there dence ”); see fying degradation and submission’ Schmerber, 384 U.S. immediate search.” (1st Fair, also Arruda v. 86 S.Ct. 1826. Cir.1983). fact, In Bell, 520, 99 S.Ct. 441 U.S. depiction, stating that agreed with this body extended this rule Supreme Court were the “most intru body cavity searches There, held cavity the Court searches. Dist. searches. Vemonia Sch. sive” of all detainees policies requiring pretrial Acton, 646, 672, 115 S.Ct. 515 U.S. MJ after visual given be 2386, 132 As stated L.Ed.2d may be constitutional. having seen a visitor case, the Fourth Amendment a related However, Bell Id. at 99 S.Ct. 1861. that, in- general “[s]uch consensus was pretrial detainees retain recognized still an in- bodily integrity implicates vasion of rights. Amendment Id. some Fourth deep-rooted personal dividual’s most 545, 558, 1861; see also 99 S.Ct. id. Missouri v. expectations privacy.” of (“we that convicted have held S.Ct. 1861 — 1552, -, 133 S.Ct. McNeely, U.S. forfeit all constitutional prisoners do not (2013) (internal quo- L.Ed.2d 696 conviction by reason of their protections omitted). tation marks of prison”). Vigilant and confinement Thus, decades, Schmerber, two this Circuit for over interests and privacy these cavity for misde- “searches must understood concluded these Court speak did not to the issue 5. The Court in Bell a "clear 4. Court clarified indication” necessity suspi- subject particularized for were to the same mean "the of whether arrestees sought might be found cion that the evidence standard. body United of the individual.” within Hernandez, Montoya 473 U.S. v. de States 87 L.Ed.2d 381 sion”); Ellison, unjustified they unless Shain v. 64- meanants would be F.3d (2d Cir.2001); Cnty. Her- Wachtler v. standard. Weber heightened satisfied the (2d kimer, Cir.1994); (2d Cir.1986). F.3d Walsh Dell, In F.2d v. (2d Franco, 849 F.2d 68-69 Cir. Weber, the Supreme we stated 1988). Shain, For example, we held “it of the Constitution the had not “read out clearly per- established in 1995 that application that a provision general charged sons with a misdemeanor and re- justified be as reasonable under the search facility manded to a local correctional ... at 800. Nor had it circumstances.” Id. strip have a to be free of a search officials from all Fourth prison “free[d] suspicion, absent reasonable are Thus, constraints.” Id. we Amendment carrying .or weapons.” contraband . strip held that a search of misdemeanor county’s 66. We concluded the arrestee is unlawful unless there is “rea- body cavity “visual search” of a misde- suspicion sonable that the arrestee is con- absent, suspicion meanant vio- weapons or other contraband cealing based Amendment. lated Id. Fourth charged, particular crime on the char- Despite rulings reject- these consistent arrestee, the cir- acteristics and/or ing constitutionality arrest.” cumstances Id. at 802.6 searches, appellees majority per- and the Weber, Following years this Circuit in arguing sist that the rule was not clear- repeatedly body has affirmed the rule foreshadowed, ly because in this case Gon- searches, particularly for misde- felony, zalez was arrested for a and the meanants, justified by must be individu- exclusively Second deal Circuit cases Hartline, suspicion. alized reasonable See fails, Appellees argument misdemeanors. Weber, (quoting 546 F.3d at 100-01 804 however, because this Court and Su- 802) (citing persuasive authority F.2d at preme Court had both foreshad- proposition for the that “it is reason- [not] heightened that the standard applied owed strip every able to inmate booked regardless person’s of a status. charge” on a reasoning related Shain, recognized, long In we “we had “strip that otherwise searches will become stressed intrusive nature of cavi- commonplace”); Kelsey Cnty. see also ty searches.” Id. at 63. addition to Schoharie, Cir.2009) 567 F.3d guiding principle, this we stated that (reiterating “long-standing the Circuit’s heightened applied whether our standard precedent strip covering searches for those open arrestees was at least an arrested for misdemeanors” collecting issue, 64,7 id. at and intimated that if this cases) (citations omitted); N.G. v. Connect- question, Circuit was asked that we would (2d Cir.2004) icut, (not- likely resolve it in given favor Gonzalez’s ing that “all the circuits to have considered that status should not person’s affect a rights, issue have reached the same eonelu- id. at n. Although explie- 3.8 essence, Hartline, reliability. required 6.In this standard more indicia of 546 F.3d at unparticularized suspi- than an "inchoate and 100. ” Ohio, Terry cion 'hunch.' 392 U.S. state, Though we did also is no "[t]here 88 S.Ct. 20 L.Ed.2d 889 concluding pretrial basis for that detainees .Instead, suspicion standard re- the pose any security lesser risk than convicted quires suspicion, specifically individualized Shain, inmates.” 273 at 64 n. 2. F.3d person targeted strip directed to the for the search, and reasonable cause footnote, to believe that rely 8. aIn we stated that "we do not drugs or other contraband are concealed in solely pretrial on detainee” Sham's status as a particular place the to be searched with some in order to find that this' search violated the

167 by Applying at 79. held, suggestion analysis, was echoed the itly this in Tennessee v. Gar- Supreme the Court’s district court observed that this “Circuit ner, 85 U.S. has blanket policies subjecting held all (1985), undermined the which L.Ed.2d newly-arrested misdemeanor detainees in a felon and a misde- distinction between facility a local correctional to visual Thus, “untenable.” this Court meanant as cavity searches are unconstitutional.” Supreme suggested the Court both . Murcia, F.Supp.2d at 493. Mur- con- body cavity that all searches must be cia court'also stated that Supreme the according heightened to a standard ducted that, Court wrote in “[i]n Gamer the con- a, arrestee status. regardless person’s of text of Fourth Amendment searches and brief, in their “the Appellees As admit the distinction n seizures ... felo- between types of searches distinction between nies and misdemeanors minor and often evolving” Appellees’ in this direction. (internal arbitrary,” quotation Id. Br. 16. omitted).9 concluded,' It marks cases, by the Southern Guided these Coupling Supreme words '[the Court’s] of York came to this exact District New strong with the Second' Circuit’s state- that, language It held of conclusion. protections ments about constitutional and this Circuit fore strip searches of misde- accused stringent that the standard for shadowed meanants, for the [allows conclusion] applies felony ar the law this Circuit does not misdemeanants. See restees as well as policy mandating strip countenance a Westchester, Cnty. Sarnicola of searches' of all arrestees simply (S.D.N.Y.2002); F.Supp.2d 259 Murcia v. they because stand accused of felonies. Cnty. Orange, F.Supp.2d Having correctly Id. at 494. determined (S.D.N.Y.2002); Dodge Cnty. Orange, rule, “clearly we foreshadowed” the (S.D.N.Y.2002).9 F.R.D. 65 In Mur- held, court then ‘individualized rea- “[t]he cia, court, majority the district like the suspicion’ apply rule to ac- sonable should here, acknowledged that “the Second Cir- cused felons as well as misdemeanants spoken directly appro- cuit has not to the facility.” upon arrival at a local correctional validity strip test for the of a priate Id. search.” Samicola, again court the lower once

However, majority, it unlike the correct- came to same conclusion. It stated if ly asked this rule was foreshad- spo- although au- this “Circuit despite specific ha[d] owed “the absence of directly test for the thority directly point.” appropriate 123 ken Vqrrone, York, Shain, 2012); F.3d at 66 n. June McBean v. New Fourth Amendment. (S.D.N.Y.2009); 260 F.R.D. Harri Mead, WL No. 05 CV ston holdings 9. The tries to disclaim these majority (E.D.N.Y. 2008). Sep. at *3 single judge were because decided of New Howev in the Southern District York. cited to Gamer for 9. The district court also er, I know of no case law which holds that proposition “[m]any crimes classified judge weight singularity undermines the nonexistent, misdemeanors, at common as judge Regardless decision. felonies,” and "numerous misde- law are now judges in our district courts not alone. Other (cid:127) dangerous more involve conduct meanors Farrelly, have observed this rule. See Sims v. Murcia', F.Supp.2d many . than felonies.” WL at *8 No. 10 Civ. at 494.. (S.D.N.Y. 2, 2013); Aug. Sorrell v. Inc. Vill. of (E.D.N.Y. Lynbrook, 2012 WL at *6 (2008), Appeals incident to a the New York Court of strip a search validity of cavity of a arrest, court in Mur- found that an anal search district also felony [the Ap- a felony heightened that the Court arrestee had to meet recently opined cia] More, rea- particularized In officers arrested a apply standard. peals would felony proximity test to in suspicion searches defendant his home close sonable More, the sixteen drugs. “[i]n well” because appeared arrestees as what to be Weber, the following Second Circuit years N.Y.S.2d N.Y.2d per- strip firmly yield- has held “pat-down” N.E.2d 967. The initial infrac- but, for minor lawfully arrested drugs, regardless, sons no ed evidence violations) (misdemeanors must cavity tions police conducted an anal search. individualized reasonable justified by an Appeals be The New York Court of held Id. weapons or contra- suspicion concealed inci- body cavity search of defendant Samicola, F.Supp.2d at 269- band.” dent to his arrest was unreasonable also observed that invalid, 70. The lower court from his rectum drugs seized previously had stated Supreme the Fourth suppressed must be because that a ‘felon’is more assumption that “the a “clear indication” requires Amendment un- found, [is] than a misdemeanant dangerous that contraband will be order to Gamer, (citing at 270 n. 4 search, tenable.” Id. “beyond the more intrusive make 1694). Thus, 212-13, U.S. at body’s surface.” Id. forecast, already rule had been finding 967.10 N.Y.S.2d N.E.2d preroga- “no constitutional it stated that Hall, Appeals In the New York Court of for creating distinction [exists tive again held that a manual once “because strip to] arrests in order search a height- search is more intrusive” particularized in the absence of individuals exist, regardless ened standard must of a suspicion carry- are Hall, person’s felony status. 10 N.Y.3d at Id. at 270. ing drugs or contraband.” 540, 886 N.E.2d 162. 856 N.Y.S.2d cases, In court drew these district stated, court principles from the and inferences made required To to the next level advance Supreme and the Court for our Circuit cavity inspection, police a visual nearly two decades to deduce the fore- specific, must have a articulable factual conclusion that the individual- shadowed supporting suspicion basis a reasonable suspicion apply ized reasonable rule should to believe the arrestee secreted evidence regardless so intrusive of a to searches inside a and the visual in- person’s status. reasonably. spection must be conducted object visually If an detected or other court was not alone in its district More, provides probable information cause that People In v. deduction. N.Y.2d object is hidden inside the arrestee’s 738 N.Y.S.2d N,E.2d (2002), body, Schmerber dictates that a warrant People and then 10 N.Y.3d 303, 310-11, conducting 886 N.E.2d be obtained before Robinson, then, People have continued to was unreasonable. 10. Since state courts example, recently, 1234(A). hold that rule. For more 2013 WL at *3 Misc.3d applied that rule was in a case with a similar ("There (N.Y.Sup.Ct.2013) no evidence pattern People fact to the case at hand. any particular- that the was based on [search] Robinson, Court of New York ized facts that led to believe that this proba- County although police had found that concealing particular defendant evidence ble cause to the defendant after observ- arrest clothes.”). beneath his cocaine, ing police’s strip him sell

169 Appeals, and the New York Court of emergency unless an situa- cavity search tion exists. that the rule on recognizing Br. “evolving” Appellees’ this direction. noted that “visual Id. The court at 16. We have held that such foresha- routinely under- ... cannot be inspections to all arrests or dowing requires taken as incident the rule to be deemed police department’s a permitted under Varrone, clearly established. See 123 F.3d subjects persons sus- policy that blanket 78-79; Fischer, 100, at Scott v. 616 F.3d proce- crimes to pected [this] of certain (2d Cir.2010). Accordingly, 105 where the 540, 311, 856 N.Y.S.2d 886 Id. at dure[ ].” Supreme clearly and this Court Court N.E.2d 162. issue, a ruling foreshadowed on the Despite Supreme precedent acknowledged other courts have also this of this Circuit’s case law over two decades outcome, we should conclude that the rule searches, the court rejecting cavity district clearly established. still contend that the Appellees stated and Hall, clearly established until rule was III. 540, at 856 N.Y.S.2d N.Y.3d Hall, Regardless 162.11 the rule N.E.2d Moreover, in the absence of “[e]ven . already clearly established therein was binding right clearly a is estab- precedent, Supreme pres- Court and suggested if lished of the are contours majority As aged by this Circuit. sufficiently clear that a reasonable official states, repeatedly po- have held that “we , doing would understand that what he is may suspicionless strip not conduct a lice right. violates that must unlawfulness Even if search.” no federal Fulton, Young v. apparent.” Cnty. be explic- stated the rule as prior case to Hall (2d Cir.1998) 899, (citing arrestees, wa- itly applying to 3034) Anderson, 640, 483 U.S. at 107 S.Ct. terfall of decisions from Schmerber (internal quotation marks and alterations to Shain to Murcia made Hall’s Weber omitted). “Officials held to have con- are a fait ac- and Samicola’s ultimate results knowledge of law.” structive established of this de- compli reflections Circuit’s —as addition, Coughlin, Salahuddin Ap- even veloping case law. (2d Cir.1986). are in the district court pellees accord with present stringent majority correctly ... dictates that a more standard be

11. The clarifies the question just a physical is not whether there was clear- applied to a search of an arrestee's ly Moreover, established rule but whether there was opined body cavity”). that case right. constitutional established adopted rule that the state court had itself federal Therefore, Hall is not determinative. But stated, previously "[in in More. The Hall court majority notice is that Hall what the fails to addressing decision a search o]ur most recent reaffirming pre-existing only it law stated was More, person’s body[,] People into Supreme Court. The New York court N.E.2d N.Y.2d 738 N.Y.S.2d recognized, "the rule announced in Schmer- (2002).... recognized We that a search unequivocal involving ber ... searches in- at as intrusive as the of this nature was least body’s require beyond the surface” trusions procedures [and] in Schmerber ... blood test Hall, some stricter standard. 10 N.Y.3d object from we held that the removal of (cit- N.E.2d prior judicial the defendant’s rectum without Schmerber, ing 384 U.S. Amend- authorization violated the Fourth 1826). new Hall thus clarified it was not a N.Y.S.2d ment.” 10 N.Y.3d at a directive from the Court’s rule but (internal quotation 886 N.E.2d 162 holding in Id. at Schmerber. omitted). marks and alteration ("Schmerber 886 N.E.2d 162 N.Y.S.2d testified repeated- searching have where' the officer majority admits “we history may a sus- that the defendant had a of secret- not conduct ly police held that ing Id. at 868 N.Y.S.2d body cavity search” and contraband. strip or picionless Here, target not a expect police officers to “Gonzalez was that can also “we police’s buy operation.” It fur- bust Gonza- black-letter law.” be familiar with * lez, states, n. 1. There- dispute officers do not WL ther “[t]he fore, had no may police to we assume the that the search violated Gonzalez’s Gonzalez, information his background searches.” free from unreasonable be trade, However, history connection to the or his it somehow concludes that still Thus, disagree secreting to as to contraband. the offi- could as “reasonable officers requisite to those arrested information for the applied that rule lacked whether cers to be considered rea- felony drug agree. crimes.” I do not search officer, objectively unjustifiably familiar sonable and still conducted An law, certainly suspicionless search. with our case would have conducting understood that Gonzalez’ssus- Here, only thing giving police suspi body cavity search was unlawful. picionless secreting contra cion that Gonzalez was having in this addition to cases Circuit that band was"“defendant’s statement he consistently cavity affirmed that said, get” “I can drugs, having get could require heightened particularity, pro- Hall However, you you whatéver need.” nounced, precedent point on this “[o]ur [as 1) explain 'did not what kind of statement unequivocal,” arrestees] 3) 2) amount; drugs; when the what 10 N.Y.3d at 856 N.Y.S.2d Appellate occur. As sale-would Divi demonstrating N.E.2d thus that offi- stated, sion in this case rep “[Gonzalez’s] knowledge of the presumed cers with law ‘get you resentation that he could whatev were on notice. you vague er need’ was as to whether he pat actually possessed In addition the initial search and narcotics at the time protruding object. provide no a specific, down revealed and did articulable particularized suspicion— prompt cavity inspec more basis to the visual Without Gonzalez, sought likely that the evidence was to be tion.” 57 A.D.3d at fact, found Tn within Gonzalez’s officer N.Y.S.2d 529. Gonzalez’s use of —no cavity could search the future suggests opposite have concluded wás tense corn elusion, other drugs person reasonable. Unlike circumstances he had no on his object” where -a hard wás if get requested. “small detected and therefore could it search, Schmerber, strip in a initial defendant’s Gonza- See 384 U.S. at (“the strip any lez’s initial search did not reveal S.Ct. 1826 Fourth Amendment ... objects. People Clayton, any hard such forbidfs] intrusions on the mere Cf. might A.D.3d 868 NY.S.2d 303 chance that desired evidence be ob- tained.”) Therefore, (NY.App.Div.2008). as

Schmerber, more, absent some clear indi- Moreover,, accepting strip even cation of Gonzalez harboring drugs or oth- search of the defendant in accordance was paraphernalia, er was a that, too, police procedure, does not plaintiffs clear violation Fourth Amend- excuse who should have known that rights, ment such that no officer find could perform strip search of the defendant it reasonable. unjusti- suspicion absent reasonable Hartline,

The facts here F.3d at 100-01 distinguishable are also fied. See (“even if Clayton, departmental policy from 57 A.D.3d there were a analysis. Fourth Amendment See McNee- all arrestees without searching strip (“We ly, 133 at 1565. have never S.Ct. particularized any assessment making however, retreated, recognition from our circumstances, question is the relevant any compelled intrusion into the hu- arrest of [the] still: Do the circumstances body implicates significant, man constitu- that she suspicion support a reasonable interests.”) tionally protected privacy her secreting per- contraband on son?”). Therefore, protections these stand re- gardless person’s of a arrestee status. unlawfulness Accordingly, where the' proscription against unreasonable Anderson, “apparent,” 483 U.S. searches, held as consistent searching officers and the S.Ct. Amendment, and core rule of the Fourth “vague” informa- suspicion was based on ignored simply should not be because of an tion, person objectively arbitrary person’s distinction as to a sta- position the officer’s should have- known suggests body tus. To hold otherwise that conduct was unreasonable and that commonplace searches are so immunity therefore not qualified should we do not treat them as the ultimate inva- apply. Vemonia, search. See sive U.S. (stating 115 S.Ct. 2386 these are the IV. searches”). “most intrusive Such a conclu- privacy gross personal violation of unacceptable any society sion is government’s outweighed cannot be privacy, dignity, bodily integrity takes only interest where mere chance existed seriously. ob- the desired evidence would be curtain drawn tained. “There is no iron V. prisons

between the Constitution and reasons, I respectfully For these dissent McDonnell, country.” of this Wolff majority’s opinion. as to Part III of the 539, 555-56, 94 41 L.Ed.2d U.S. S.Ct. (1974). Included in those constitution- rights al “when it comes to the Fourth

Amendment,” is the rule that “the home is among equals.”

the first Florida v. Jar- — dines, U.S.-, 1413- QUAKER HILLS, LLC, Plaintiff- It is at the 185 L.Ed.2d 495 Appellee-Cross-Appellant, ” “ ‘very As a per- Amendment’s core.’ Id. home, it body son’s is the ultimate must be CO., PACIFIC INDEMNITY Thus, at the nucleus of the Amendment. Defendant-Appellant- body just an invasion into the as much— Cross-Appellee. if not than practice even more—extreme (Lead), Docket Nos. 11-3670 entry into a home. an intrusive See Unit- 11-3780(XAP). Martinez-Fuerte, ed 428 U.S. States S.Ct. L.Ed.2d 1116 Appeals, United States Court of are (explaining Second Circuit. “ordinarily stringent afforded the most Argued: Nov. 2012. fact, protection”). Fourth Amendment Aug. Decided: recently has reaffirmed its com- inquiry mitment to the reasonableness rule, as touchstones of the

Schmerber

Case Details

Case Name: Gonzalez v. City of Schenectady

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 28, 2013

Citation: 728 F.3d 149

Docket Number: 11-5403-cv

Court Abbreviation: 2d Cir.