Is a Police Search With Consent by the Tenant Legal in New York ?
In People v. More, 97 N.Y.2d 209, 764 N.E.2d 967, 738 N.Y.S.2d 667 (2002), the search of the defendant was conducted in an apartment bedroom after the police obtained consent to enter by the tenant.
During the strip search of the defendant, a plastic bag containing crack cocaine was recovered by the police who observed it protruding from the defendant's rectum.
The drugs that were recovered from the defendant's body were suppressed by the court in More.
The More Court held that the record did not contain any evidence to support a finding that the police were confronted with an emergency situation in which a delay, to obtain a warrant, would result in the destruction of evidence.
In More, "no police officer testified that, despite the available means of incapacitating defendant and keeping him under full surveillance, an immediate body cavity search was necessary to prevent his access to a weapon or prevent his disposing of the drugs."
Furthermore, there was no evidence that the drugs, wrapped in plastic, could have been absorbed into the defendant's body.
In short, the police, upon lawfully entering the defendant's apartment, saw a crack pipe and a quantity of crack-cocaine in open view on a table.
The defendant and a female companion were seated on a nearby couch. The defendant and the woman were then arrested, handcuffed, and patted down for weapons.
No weapons were recovered.
"The police then separated defendant and the female in order to strip search them. Defendant initially cooperated by taking off most of his clothes, but at some point he protested and scuffled with the officers. During the search, which took place in a bedroom, the police removed a plastic bag, an outer portion of which they saw protruding from defendant's rectum. The bag contained several individually wrapped pieces of a white rock-like substance, which later tested positive for cocaine. Drugs were also recovered from defendant's female companion." (Id. at 212.)