The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge
Before the court is Shonyeah Douglas's ("Douglas") petition for habeas corpus relief pursuant to 28 U.S.C. § 2254.
On January 26, 2002, Douglas, Taretha Johns, and Phiekou Irvin, were driving in the Town of Phelps in a 1992 Dodge Shadow. (T., at 81, 86)*fn1 While patrolling the Thruway, Officer Jordan Bonafede observed that the Dodge Shadow lacked a license plate light or rearview mirror.
(T. at 81-82). Officer Bonafede pulled the car over and approached the vehicle on the passenger side. Douglas, sitting in the passenger seat, rolled down the window for Officer Bonafede, who testified that he immediately could smell burned marijuana in the car. (T. at 84). Officer Bonafede asked for, and received, identification from the passengers, and called for backup. (T. at 83-84, 86). Officer Michael Jurek arrived as backup, about 15 to 20 minutes later. At the scene, Officer Jurek activated his overhead lights automatically engaging the video equipment in his patrol car recording the traffic stop on video. (T. at 132). The Officers then removed the passengers from the vehicle to search the passengers and the cars. (T. at 86). Officer Bonafede patted down Douglas, searching for weapons and contraband. (T. at 86). From that search, he found a pair of earrings in Douglas's pocket. (T. at 96). In the car, the officers found traces of marijuana. (T. at 97). At that this point, Officer Bonafede testified that although he still needed to discuss the situation with Douglas, he thought the traffic stop was over and stopped the video camera which had been recording the stop. (T. at 95). Officer Bonafede asked Douglas about the earnings. (T. at 96). Following the discussion and the vehicle searches, Officer Jurek placed Irvin, who had admitted to smoking marijuana, under arrest. (T. at 88).
While Officer Jurek was dealing with Irvin, Officer Bonafede observed Douglas placing something in his pants, near his groin. (T. at 88 ). Douglas, according to Officer Bonafede, would not remove his hands from his inner thigh to allow Officer Bonafede to search him. (T. at 89). While trying to get Officer Jurek's attention to help with the search, Officer Bonafede observed Douglas throw the bags he had taken from his pants and run across the four-lane thruway, out of sight. (T. at 90). Once Douglas had fled the scene, the Officers re-engaged the video equipment. (T. at 96).
Douglas disputes portions of Officer Bonafede and Jurek's testimony. According to Douglas, Officer Bonafede attempted to pull Douglas' pants down in an effort to strip search him. (T. at 208) The petitioner asserts that, panicking at the at thought of being strip searched, he ran across the highway. (T. at 209). The issue of whether or not Bonafede pulled Douglas' pants down was not argued at length during the state court suppression hearing. The most significant mention of the subject came on cross-examination, when Bonafede was asked: "Did [Douglas'] pants ever fall to his ankles or anything like that while you were doing that?" (H. at 31).*fn2
Bonefede responded "Not to my knowledge" and then proceeded to note that Douglas was wearing three layers of clothing. (H. at 31-32).
Douglas' testimony at the trial*fn3 in this case appears to contradict the claim that Officer Bonafede actually pulled Douglas' pants down exposing him to public view. Although he uses the phrase "strip search," Douglas' testimony at trial suggests, at best, that Officer Bonafede attempted to search inside Douglas' pants. Douglas testified:
A: ... The other trooper, Jurek, I believe his name is, he puts me in the car. And
Bonafede comes to me and he said, pull your pants down. You know, I'm not pulling down my pants. I feel that's a violation. Why do you feel you have to strip search us? Why don't you arrest us and take us down. I'm in the car. I'm at the car trying to explain it to him, I've been locked up before and I never seen nobody get strip searched. So at that point he said, you don't want to get strip searched? And I said, no. So he like forced -- grabbed my pants, you know, just trying to overpower me with my pants, and I'm just holding my pants, why you trying to strip search me, and he just trying to get my pants loose. And once I break loose, I start running. I got scared at that point as far as him grabbing my drawers.
A: I ran straight across the highway ...