Lawsuit alleges 2017 cavity search unconstitutional

ALBANY — A former Albany man acquitted at trial of drug charges is suing a city police sergeant and two detectives in U.S. District Court, alleging he was subjected to an invasive and unconstitutional cavity search on Philip Street in 2017.

The plaintiff, Ronald Hester, is expected to testify at a trial beginning March 4 alleging that as a result of the June 6, 2017 anal cavity search, he has suffered “severe mental anguish… felt embarrassed and ashamed, belittled, and lost sleep for many nights,” according to a pretrial brief filed by his attorneys, Kyra E. Ganswith and David G. Burch Jr.

“His manhood was violated which has lasting effects,” the attorneys stated. “Mr. Hester had to spend thousands on legal counsel to defend his rights and even moved to another state because he could not be in Albany anymore.”

Hester is seeking compensatory damages for mental anguish and emotional distress he contends he suffered, as well as punitive damages for the officers’ alleged actions.

In turn, Stephen J. Rehfuss, the attorney representing the three police officers, said the cavity search was lawful and based on reasonable suspicion; he contends none of the officers did anything wrong. Rehfuss argued that Hester told police he had crack cocaine and marjiuana outside his underwear. In a pretrial motion, the attorney asked U.S. District Court Judge Mae D’agostino to not allow jurors to learn about Hester’s acquittal on the charges but to allow them to learn about his prior felony conviction, should he testify.

Jurors will be asked to decide two questions: whether now Lt. Brian Plante committed an illegal visual cavity search in violation of the Fourth Amendment’s protections against unreasonable searches and seizures, and whether Detectives Jason Kelley and John Regan failed to intervene to stop Plante from conducting that search.

Attorneys for Hester say that on June 6, 2017, Hester stopped in an apartment on Philip Street, near Madison Avenue, to borrow $50 from a friend. They say the apartment was owned by an acquaintance of Hester who had been under Albany police surveillance for weeks (an informant had made several crack cocaine purchases there over five weeks).

While Hester was in the apartment, members of the police department’s Criminal Response Unit acting on a search warrant entered the apartment and found drugs, as well as a gun on an air mattress near Hester. Officers arrested Hester, handcuffed him and took him into a kitchen for the strip search ordered

by Plante, a sergeant at the time.

Hester protested the search and alleges it happened after Plante threatened to use a Taser on him, the attorneys stated.

“Sgt. Plante conducted the visual cavity search in front of two other people arrested in the apartment and numerous officers,” the plaintiff ’s brief said. It said Kelley and Regan “watched the search and did not intervene.”

Ganswith and Burch say the officers had no right to search their client. They say Hester did not fidget, walk funny or show any indication he was hiding drugs or a weapon in the sensitive location. They say no evidence indicated Plante had received approval from a supervisor to conduct the cavity search.

“Drugs beneath the front of someone’s underwear briefs is not in the anal cavity they decided to search,” the brief said. “Rather, it seems that would be under someone’s clothing which warrants a strip search only. The officers blatantly disregarded this difference and admitted they often do in narcotics searches in sworn affidavits. A visual cavity search is very invasive, a step above a strip search, and under Albany Police Department’s ownpolicy which mirrors the law.”

As a result of the search, Hester felt “embarrassment, shame, physical discomfort, and belittlement, each of which significantly affected Mr. Hester’s overall health and mental wellbeing,” the brief said.

Refhuss said officers took 5.6 grams of crack cocaine in a plastic tie-off and marijuana

wrapped in a lottery ticket from Hester. Meanwhile, Hester denies there were drugs on his person.

“The discovery of narcotics and a loaded firearm, coupled with (Hester’s) statement that he was concealing narcotics in his underwear, substantiated the officers’ suspicions and justified their actions in conducting a visual cavity search,” Rehfuss said in the defense brief. He said there was no duty for officers to intervene during a lawful search.

Hester’s lawsuit initially included claims against Albany

County District Attorney David Soares’ office, acting Supreme Court Justice Roger Mcdonough and several other officers and at least one other prosecutor — all of which were dismissed. Senior U.S. District Judge Lawrence Kahn, who previously had the case, dismissed three other claims Hester lodged against the three remaining defendants for an allegedly invalid warrant, exceeding the scope of their warrant and allegations of false arrest and false imprisonment.

The trial is expected to last two days.