The opinion of the court was delivered by: Lippman, Chief Judge
The contraband defendant stands convicted of possessing was recovered from his person by means of a strip-search conducted on the authority of a warrant purporting to authorize the search of all persons present at the time of its execution.
Defendant now contends, as he did before the County Court and the Appellate Division, that there was not a sufficient predicate for issuance of the warrant and that, even if properly issued, it did not authorize the strip search performed on him. We agree with both of these contentions.
In his suppression motion defendant specifically alleged that there was no adequate factual basis for the all-persons-present warrant and that "[e]ven if the warrant were to be viewed as allowing [him] to be seized and searched during [its] execution, it was a violation of [his] rights under the Fourth Amendment to the US Constitution and Article 1, section 12 of the New York Constitution to be subjected to a body cavity search based solely on the 'all persons present' warrant and his mere presence at the target residence." The People responded that the search warrant was validly issued and properly executed. They characterized the search of defendant as a "strip search" that did not involve a cavity search.
In ruling upon the first branch of the motion, the court relied on the affidavit submitted in support of the warrant application, the sole basis for the warrant's issue. According to the affidavit, two controlled purchases of cocaine had been made by known and reliable informants at the target premises, the first floor front apartment at 114 Isabella Street, a two-story residential building. The first purchase was reportedly made from a male resident of the apartment, referred to only as "Tom," on February 2, 2006; the second purchase, from an "unknown male," took place weeks later, "during the week ending 25 February 2006." The amount of cocaine purchased on each occasion is not stated. Based on these two transactions, the motion court found that "not only was [probable cause established] to believe that the residence of 114 Isabella Street, First Floor Front Apartment, was being used for the sale and distribution of drugs but also that anyone present therein was involved in the ongoing illegal activity" and, accordingly, that the applicable standard for issuance of an all-persons-present warrant as set forth in People v Nieves (36 NY2d 396 ) had been met. The court directed a hearing upon the disputed factual issue raised in connection with the motion's second branch, namely, whether there had been a body cavity search, as defendant alleged, or merely a strip search, as the People contended.
At the hearing, one of the officers who executed the warrant testified that he searched defendant solely pursuant to what he understood to be the warrant's authority; he acknowledged that he had no independent basis for an arrest and, in fact, said that defendant was not under arrest at the time of the search.
He also stated that he had taken part in the execution of hundreds of all-person-present warrants and that persons were routinely strip-searched pursuant to such warrants and required to facilitate the examination of their anal and genital cavities. The officer said that defendant was subjected to such a search, during which he was required to lift his scrotum and then to bend over to expose his anal cavity. The incriminating evidence was discovered in the course of the latter exercise.
The Court denied suppression, finding that although the search at issue had been "more intrusive than merely a strip search," and involved "the conducting of a visual body cavity search," it was authorized by the all-persons-present warrant and had been reasonably conducted.
Upon the denial of his suppression motion, defendant entered a plea to criminal possession of a controlled substance in the fifth degree. The Appellate Division affirmed the ensuing judgment of conviction, stating "the warrant application established probable cause to believe that the apartment was being used for the sale of controlled substances and that anyone present was involved in the ongoing illegal activity" (59 AD3d 995, 995-996 [internal citation and quotation marks omitted]).
In support of this conclusion, the Court cited several Appellate Division decisions in which all-persons-present warrants had evidently been upheld on predicates not dissimilar to the one at bar (see People v Neish, 232 AD2d 744, 746 , lv denied 89 NY2d 927 ; People v Williams, 284 AD2d 564, 565 , lv denied 96 NY2d 909 ). The present appeal from the Appellate Division decision and order affirming defendant's conviction is before us by leave of a Judge of this Court (12 NY3d 857 ).
Preliminarily, while the People argue that the issues defendant would have us review are not preserved, both of the issues defendant has briefed to us were clearly raised and argued on the suppression motion and before the Appellate Division, which, it may be noted addressed both issues on the merits without invoking its interest of justice jurisdiction. Nor is it the case that we are being asked by defendant to differ with the motion court's now affirmed factual findings; the plainly reviewable issue posed is rather whether those facts will support the legal conclusion that the search of defendant was constitutional.
The Fourth Amendment to the Federal Constitution as made applicable to the states by the Fourteenth Amendment, and Article I, Section 12 of our New York State Constitution speak with one voice in requiring that warrants "particularly describ[e]... the persons... to be seized." It is plain that the warrant here at issue does not particularly describe anyone. That, however, is not where the present inquiry ends because CPL 690.15 (2) states that "[a] search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein," and in People v Nieves (36 NY2d 396) this provision was upheld as against the claim that it was facially unconstitutional.
At the time of Nieves, the constitutionality of CPL 690.15 (2), enacted only five years before, had been seriously questioned (id. at 404) and it was evident that the statute as written was potentially overbroad in its application (id.). We nonetheless reasoned that there could be circumstances in which a showing of probable cause to search a place would also afford probable cause to infer that everyone present at the place had upon their persons the items specified in the warrant, and thus, that the statute was capable of application without constitutional offense. We recognized, however, the exacting nature of the showing necessary to justify the inferences essential to the statute's constitutionally permissible use, and summarized the "carefully circumscribed," indeed "severely limited," grounds upon the search of an individual identified in the authorizing warrant only as "a person present" could be performed:
"The facts made known to the Magistrate and the reasonable inferences to which they give rise, must create a substantial probability (see People v Baker, 30 NY2d 252, 259) that the authorized invasions of privacy will be justified by discovery of the items sought from all persons present when the warrant is executed. If this probability is not present, then each person subject to search must be identified in the warrant and supporting papers by name or sufficient personal description" (id. at 405).
This standard was not met in Nieves. The any-person-present warrant there at issue was premised upon facts indicating that the place to be searched, a restaurant, was being used to conduct illegal gambling transactions and to store the records of those transactions. But the locus of the search had not been shown limited to criminal activity and, accordingly, the requisite probability that anyone at the restaurant would be there for an illicit purpose and would have upon his or her person evidence probative of the alleged ongoing illegality was not made out. Indeed, notwithstanding our recognition in Nieves of the possibility of a valid ...