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What you need to know for 02/22/2018

Illegal search by Schenectady police affirmed in drug case

Illegal search by Schenectady police affirmed in drug case

Evidence in a 2012 Schenectady drug case was properly excluded, an appeals court ruled Thursday, fin

Evidence in a 2012 Schenectady drug case was properly excluded, an appeals court ruled Thursday, finding city police needed a search warrant to recover 67 packets of heroin visible though partially secreted in the suspect’s rectum.

The ruling was issued in the case of a Poughkeepsie man who was a passenger in a vehicle stopped in Schenectady in April 2012.

According to the ruling, police stopped the car because they had information that the driver was the subject of an active arrest warrant. The defendant in the drug case, Michael Nicholas, now 48, was in a rear seat. Police spotted him with his hand in the open zipper of his pants. Police ordered him to show his hands, he refused, so they removed him from the car and placed him face-down in the street. He was then handcuffed and moved to a nearby lawn.

As he was being removed, Nicholas’ pants came down, exposing part of his buttocks. An officer then spotted a white object. A detective arrived, lifted Nicholas’ underwear and called for an ambulance.

After about 20 to 25 minutes, the ambulance having not arrived, the detective put on rubber gloves and removed the object, a condom with 69 packets of heroin inside, according to the ruling. Nicholas was charged and later indicted on multiple charges, but his public defender moved to have the drugs excluded as evidence in the case. Schenectady County Court Judge Karen Drago agreed, finding the removal was a warrantless manual cavity search that was not reasonable under the circumstances.

That ruling resulted in Nicholas’ release, as prosecutors could not proceed without the drug evidence. The Schenectady County District Attorney’s office appealed the decision, leading to Thursday’s ruling.

The Appellate Division of state Supreme Court cited previous cases that found police cannot remove something protruding from a body cavity without a warrant, except under specific circumstances. Those circumstances were not present in the Nicholas case, the court ruled.

The court noted the detective indicated concern the suspect could tamper with the evidence or that it could rip and result in a medical emergency. But Drago said in her ruling that Nicholas couldn’t tamper with the drugs because he was face down and guarded by police. Drago also found no emergency existed because if one did exist, police wouldn’t have waited 20 to 25 minutes to remove it.

The detective also acknowledged he could have asked for a warrant.

The appeals court found there was insufficient proof Nicholas’ health was in immediate danger. The ruling also echoed Drago’s initial ruling that, were the court to find the defendant’s health in danger in the Nicholas case, it would essentially take away any warrant requirement for drugs secreted in a suspect’s body.

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