On May 23, 2013, this Court conducted a combined Dunaway, Huntley, Mapp, and Voluntariness hearing.^[FN1] Police Officers Michael Susana and Andrew Smith testified for the People. The defendant did not present any evidence. The parties rested on the record. The defendant's motion is granted in part, as follows.

From the late evening of August 16, 2012, to the early morning of August 17, 2012, Police Officers Michael Susana, currently a member of the New York Police Department (hereinafter "NYPD") for approximately eleven years, and Andrew Smith, currently a member of the NYPD for approximately eight years, were assigned to the Street Narcotics Enforcement Unit (hereinafter "SNEU") of the 6th Precinct. Specifically, they were part of a team of officers conducting a narcotics surveillance operation out of an observation post located in the vicinity of Sheridan Square. Susana testified that he has been assigned to SNEU for approximately three years, that he has made over three hundred narcotics-related arrests, and that he is familiar with the area of Sheridan Square, which is a drug-prone location with a high concentration of crack/cocaine sales. At approximately 11:50 p.m. on August 16, 2012, Susana, who was located inside of a building on [*2]Sheridan Square, began to watch the defendant through a floor-to-ceiling window.^[FN2] The defendant was a male black, wearing "bright" red clothing, carrying a portable wooden stool. Susana testified that, based on his training and experience, he believed the defendant to be engaged in the sale of narcotics. Specifically, the defendant repeatedly approached multiple individuals, engaged those individuals in brief conversations, and motioned for those individuals to follow him to another location. A few minutes later, in each instance, the defendant then returned to the general area where Susana had first observed him. Susana observed the defendant engage in this type of behavior for approximately one hour. At approximately 12:50 a.m. on August 17th, Susana observed an individual, whom he later learned to be William Padeloford, approach the defendant.^[FN3] The pair engaged in a brief conversation after which the defendant motioned for Padeloford to follow him. Padeloford followed the defendant down the steps of a nearby subway station. The pair stopped before the first landing, where Susana was still able to observe them, and again engaged in another brief conversation. Susana then observed Padeloford give the defendant U.S. currency in exchange for a small item. While the defendant immediately left the subway stairs, Padeloford remained behind for approximately twenty seconds, examining the small item. Susana was unable to identify the small item, but believed it to be crack/cocaine. Susana made a radio transmission, alerting his field team that he had just observed what he believed to be a drug transaction. During that transmission, he provided descriptions of both the defendant — male black, wearing all red and carrying a wooden stool — and Padeloford — male white, wearing a green hat, blue shirt, and jeans — and the location of each of the individuals. In response to Susana's radio transmission, Smith — who recognized Susana's voice — observed both the defendant and Padeloford in the location indicated by Susana.^[FN4] No one else in the general vicinity matched the descriptions provided by Susana. Padeloford was apprehended and patted down, and a piece of crack/cocaine was recovered from a crack pipe in his possession. The defendant was apprehended, handcuffed, and patted down, and U.S. currency and a bag of crack/cocaine was recovered from his pocket. Within two minutes of having received Susana's radio transmission, Smith radioed back that he had the defendant and Padeloford in custody. A few minutes later, Susana observed both individuals in custody, in a police van.

Later, at the 6th Precinct, Susana was instructed by a Sergeant to conduct a strip search of the defendant. Susana testified that it was NYPD procedure to conduct such a search, and that the defendant could not be transported to Central Booking without having been searched in this manner. Susana escorted the defendant into the men's bathroom and informed him that he would be strip searched. The defendant, who was very agitated, stated, in substance, that it was not going to happen, and that Susana would have to fight him in order to accomplish the search. As the defendant was not complying with Susana's commands, Susana restrained him on the ground and forcibly removed his clothes. When Susana pulled down the defendant's shorts and underwear, he [*3]observed a wad of toilet paper protruding from the defendant's buttocks. Susana removed the wad from the defendant's buttocks and placed it on the ground. Inside of the wad were fifteen bags of crack/cocaine. As Susana pulled down the defendant's shorts and underwear the remainder of the way, a smaller wad of toilet paper fell from the defendant's genital area. Inside the smaller wad were five additional bags of crack/cocaine. Susana testified that as the strip search progressed, the defendant became more compliant. Subsequent to the strip search, as the defendant was getting dressed, he stated to Susana, in substance, not to worry, that he would go to the grand jury and beat the case.

The People have met their burden of proving the lawfulness of the seizure of a bag of crack/cocaine and U.S. currency recovered from the defendant at the scene of his arrest. The uncontradicted hearing testimony establishes that those items were recovered pursuant to a search [*4]incident to a lawful arrest. See People v. Wilson, 46 AD3d 254 (1st Dept. 2007); People v. Simon, 55 AD3d 378 (1st Dept. 2008). Accordingly, the defendant's motion to suppress those items is denied.

Crack/cocaine recovered from the defendant pursuant to a strip search at the precinct

The People have not met their burden of proving the lawfulness of the seizure of the two wads of toilet paper containing crack/cocaine from the defendant during a strip search at the precinct. Accordingly, the defendant's motion to suppress those items is granted.

A strip search may only be conducted when the police possess "reasonable suspicion that the arrestee is concealing evidence underneath clothing." People v. Hall, 10 NY3d 303, 310-11 (2008). In other words, the police must be in possession of "particular, individualized facts" that "justify subjecting an arrestee" to a strip search. People v. Mothersell, 14 NY3d 358, 367 (2010). In the instant matter, the People failed to demonstrate that the police possessed the requisite reasonable suspicion. Rather, Officer Susana testified only that he was instructed by a Sergeant to conduct a strip search of the defendant. There was no evidence that the Sergeant's decision was based on any particularized facts that led the police to believe that this particular defendant was concealing evidence beneath his clothes. See People v. Hunter, 73 AD3d 1279 (3d Dept. 2010); People v. Lowman, 49 AD3d 1262 (4th Dept. 2008). That the defendant protested after Susana informed him that he intended to perform the strip search did not, in and of itself, give rise to reasonable suspicion, as it is evident that the officer had already made the determination to conduct that search. See People v. Martinez, 268 AD2d 266 (1st Dept. 2000); People v. Pierre, 8 AD3d 904 (3d Dept. 2004); People v. Kelley, 306 AD2d 699 (3d Dept. 2003). Even accepting Officer Susana's assertion that the strip search of the defendant was in accordance with NYPD procedure, that, too, did not entitle the police to perform a strip search of the defendant absent reasonable suspicion. Accordingly, the defendant's motion to suppress two wads of toilet paper containing crack/cocaine recovered from his rectal and genital areas pursuant to a strip search is granted.

Huntley

The defendant moves to suppress statements made to Officer Susana at the 6th Precinct on August 17, 2012. The People have met their burden of proving beyond a reasonable doubt that the defendant's statements were spontaneous and, thus, freely, knowingly, and voluntarily made. See People v. Huntley, 15 NY2d 71 (1965).

The hearing evidence establishes by uncontradicted testimony that Police Officer Susana informed the defendant that he was about to be subjected to a strip search. The defendant immediately stated, in substance, that it was not going to happen and that the officer would have to fight him. His statements, therefore, were not in response to any police questioning and, thus were genuinely spontaneous. See People v. Norman, 77 AD3d 497 (1st Dept. 2010); People v. Burton, 57 AD3d 261 (1st Dept. 2008); see also People v. Vasquez, 235 AD2d 322 (1997); People v. Davis, 234 AD2d 88 (1st Dept. 1996); People v. Tarleton, 184 AD2d 463 (1st Dept. 1992). Moreover, Susana's statement to the defendant that he would be subjected to a strip search was not the functional equivalent of custodial interrogation. See People v. Dealma, 291 AD2d 207 (1st Dept. 2002); see also People v. Blunt, 273 AD2d 146 (1st Dept. 2000). While the Court concludes, therefore, that the defendant's statements were freely, knowingly, and voluntarily made, it does not reach the issue of whether those statements are admissible at trial, particularly in light of the unlawfulness of the strip search, as discussed supra. In any event, the defendant's motion to suppress statements made to Officer Susana is denied.

Voluntariness

Due to their failure to provide notice pursuant to C.P.L. § 710.30(1), the People concede that they may not use an additional statement made by the defendant — that he would go to the grand jury and beat the case — as part of their case-in-chief at trial. Nevertheless, they ask this Court to determine the voluntariness of that statement. This Court finds that the statement was voluntarily made.

The People have the burden of proving that the defendant's statement was voluntary beyond a reasonable doubt. See People v. Anderson, 42 NY2d 35 (1977). A statement is voluntary when, under the totality of the circumstances, the statement was not the product of promises, threats, force, or any other coercive behavior. See People v. Anderson, 42 NY2d 35 (1977); People v. Kimes, 37 AD3d 1 (1st Dept. 2006); People v. Soto, 253 AD2d 359 (1st Dept. 1998). In the instant matter, there is simply no evidence that the defendant was induced to make the statement by coercive behavior of any kind. Accordingly, the defendant's statement may be used by the People in the event that the defendant testifies on his own behalf at trial. See People v. Maerling, 64 NY2d 134 (1984).

This constitutes the Decision and Order of the Court.

Dated:New York, New York

May 31, 2013

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J.S.C.