Pubdate: Sun, 28 Dec 2008 Source: Times Union (Albany, NY) Copyright: 2008 Capital Newspapers Division of The Hearst Corporation Contact: http://www.timesunion.com/forms/emaileditor.asp Website: http://www.timesunion.com/ Details: http://www.mapinc.org/media/452 Author: Robert Gavin Bookmark: http://www.mapinc.org/find?237 (Drug Dogs) Bookmark: http://www.mapinc.org/topics/strip+search COURT: STRIP SEARCH WRONG ALBANY - A state appeals court has unanimously reversed the 2007 conviction of a man found with cocaine in his buttocks, finding Schenectady police wrongly strip searched him before his arrest. Jonathan Gonzalez was arrested after he allegedly approached a wired informant and asked, "What do you need? I can get you whatever you need." Gonzalez was taken to a police station, where he was required to disrobe for a body cavity search. He was "repeatedly ordered to bend over and spread the cheeks of his buttocks," the Appellate Division ruling stated. After Gonzalez eventually agreed, investigators "spotted a small plastic bag, later determined to contain cocaine, protruding out of his rectum," the ruling stated. After a judge allowed the cocaine evidence into his trial, Gonzalez was convicted of two drug possession counts in January 2007. He was sentenced to two-and-a-half years in prison and another two years post-release supervision. The Appellate Division reversed the conviction in its decisions released Wednesday, finding no specific basis supporting a reasonable suspicion for making the cavity search. The midlevel court's ruling said police were "not justified" in conducting the cavity inspection and the evidence should have been tossed from the case. The ruling said Gonzalez's statements "may have been indicative of his involvement in the drug trade," but added, "his representation that he could 'get you whatever you need' was vague as to whether he actually possessed narcotics at the time and did not provide a specific, articulable basis to prompt the visual cavity inspection." In another decision, the Appellate Division unanimously reversed a lower court's decision that would have blocked cocaine evidence from another Schenectady case, this one involving a traffic stop and police dog. The defendant, Damien Devone, was a front-seat passenger in a car when the driver, identified as Troy Washington, was spotted by Schenectady and State Police talking on a cellphone, the ruling stated. After they pulled the car over, a state trooper discovered Washington did not have his license, could not produce registration or explain where he was headed. Washington allegedly said the car was registered to his cousin - yet did not know the cousin's name. When asked about the whereabouts of the cousin, Washington then pointed to Devone, the ruling stated. A police computer search revealed the car was not registered to Devone, though it was not reported stolen, either. Still, the "evasive and incorrect answers to routine questions" led the investigators to have the police dog walk around the car, the ruling stated. It resulted in "an alert by the dog for the presence of narcotics in the car," the ruling stated. When the trooper opened the door and the dog scratched at an armrest console, police found cocaine, the decision stated. Washington and Devone tried to get the drug evidence blocked, arguing they were unlawfully searched. While a lower court agreed, the Appellate Division has allowed the evidence into the case. "In light of the diminished expectation of privacy in a car as opposed to a home and the fact that 'a canine sniff' is far less intrusive than a full-blown search," the ruling stated, "we find that the presence of a founded suspicion is sufficient to permit a canine sniff of the exterior of a car that has been lawfully stopped and not unreasonably delayed." - --- MAP posted-by: Larry Seguin