Outcry over Sheriff's Department search methods

By BRENDAN J. LYONS
Times Union
May. 14, 2008

ALBANY -- Two years ago, Tunde Clement stepped off a bus at the city's main terminal downtown.

Clement, a black man, was carrying a backpack and coming from New York City. That may have been enough to pique the interest of undercover sheriff's investigators scanning the crowd with their eyes.

They cornered Clement and began peppering him with questions.

He was quickly handcuffed and falsely arrested. He was taken to a station to be strip-searched and then to a hospital, where doctors forcibly sedated him with a cocktail of powerful drugs, including one that clouded his memory of the incident.

A camera was inserted in his rectum, he was forced to vomit and his blood and urine were tested for drugs and alcohol. Scans of his digestive system were performed using X-ray machines, according to hospital records obtained by the Times Union.

The search, conducted without a search warrant, came up empty.

In all, Clement spent more than 10 hours in custody before being released with nothing more than an appearance ticket for resisting arrest -- a charge that was later dismissed.

For years, the Albany County Sheriff's Department's controversial tactics at the downtown bus depot have drawn harsh criticism from defense attorneys and civil rights advocates. Seven years ago, the state's highest court issued a searing rebuke of their methods while overturning the conviction of a passenger who'd been arrested carrying three ounces of cocaine.

The Court of Appeals said it was improper for the investigators to board buses from New York City and flash their badges, waiting for passengers to react.

The operations have continued and have been mostly successful, from the department's perspective. But not always. An arrest two years ago involving a man found with a kilo of cocaine in his backpack was subsequently thrown out by an Albany County judge, who ruled the cops had no legitimate reason to approach and question the man.

During the hearing that led to that dismissal, Terence L. Kindlon, the defendant's attorney, accused a sheriff's investigator of lying and embellishing his testimony by using precise language -- "I sensed 'criminality was afoot' " -- directly from the Court of Appeals ruling, according to a court transcript.

Kindlon, an Albany defense attorney since the early 1970s, says the bus station searches have endured no matter what courts have decided since the early 1980s.

Twenty years ago, Kindlon and another defense attorney, Joseph Donnelly, who is now deceased, hired a private investigator to stake out the bus station and monitor the detectives working there.

"Donnelly and I were hearing that just about every black man who came through the bus station was being literally grabbed and dragged into the men's room and searched," Kindlon said. "Occasionally, of course, they would get lucky and find some drugs. But the vast, overwhelming majority of black men searched were clean."

At that time, the bus station details were being manned by the Albany Police Department, which later discontinued the practice. But Sheriff's Inspector John Burke, a longtime city vice detective, took over the bus station operation when he retired from the Albany force and took a job with the Sheriff's Department.

Sheriff's officials scoff at suggestions they violate anyone's rights.

"There's not too many cases that have been thrown out," said Sheriff James L. Campbell. He said a 2001 court ruling forced "a change in the way we had to do it. ... What we started doing is studying their mannerisms when they get off (a bus) and how they're walking."

Burke, who runs the sheriff's Drug Interdiction Unit, said investigators need a reasonable suspicion to stop and frisk someone. That could be something as subtle as a passenger walking out an entrance door, leaving a bag unattended or going into a bathroom stall and not pulling down his or her pants, he said.

"It's not profiling," Burke said. "We look for indicators."

Records show many people arrested by sheriff's investigators are minorities, including four people arrested last year.

Yet the case of Tunde Clement is like no other on record, and raises questions about how many liberties the drug investigators are taking with suspects they handcuff.

Clement, a convicted drug dealer with a lengthy criminal record, is serving time in state prison for a separate offense. He has filed a federal civil rights lawsuit against the sheriff's department and Albany Medical Center Hospital. He claims that when officials strapped him down and injected him with drugs, against his will and with no medical need or emergency, he was a victim of assault and battery. His rights under the First, Fourth and 14th amendments also were violated, according to the federal complaint filed by John Queenan, his attorney.

The allegations come at a time when Burke's Drug Interdiction Unit recently was accused by an Albany detective of being negligent, reckless and poorly supervised. The detective's thumb was shot off by a sheriff's investigator during a bungled drug raid in Berne last summer, and his career is in question. An internal affairs investigation of the incident reached the same conclusion about the unit's poor supervision and recommended discipline against Burke and other members of the unit, according to confidential sources.

No action was taken.

For reasons never outlined in court records, Burke's investigators zeroed in on Clement that Monday morning in March 2006, cut him off and started asking questions as he tried to exit the bus terminal.

Clement, whose criminal record consists mostly of drug convictions, tried to brush past. He told cops he didn't have to answer questions.

They pushed him against a wall, frisked him, searched his backpack and charged Clement with resisting arrest after finding no drugs or weapons, records show.

Under the law, the sheriff's investigators needed "reasonable suspicion" to stop Clement that day.

They also needed to charge him with more than just resisting arrest, which requires a person to commit some other underlying crime. Their mistake would lead a City Court judge to throw out the misdemeanor charge nine months later.

Minutes after being led from the bus station in handcuffs, Clement was taken to a sheriff's department holding cell in the bowels of the county's sprawling downtown Judicial Center. He was forced to strip naked, squat and cough as investigators wrongly concluded he was hiding drugs inside his body, according to a federal complaint.

The investigators claimed to have seen something "white" protruding from Clement's rectum during the strip-search, according to hospital records. But it's not clear why Clement, who was arrested for a misdemeanor, was strip-searched in the first place.

Upstairs in the county Judicial Center, it was midmorning on a Monday and a smattering of judges were on the bench or in their chambers, available at a moment's notice to consider any search warrant applications. A request was never made.

Instead, just before noon, Clement -- fully shackled and still in custody for a minor offense -- shuffled into Albany Medical Center Hospital with a phalanx of cops at his side, hospital records show.

He was locked in a gurney and listened anxiously as a group of doctors and nurses debated the cops' request to have Clement forcibly sedated so his body could be searched for drugs.

The doctors asked Clement to sign a consent form, but he refused.

The medical records show one of the doctors placed a call to the hospital's risk management director to assess the liability exposure of what they were about to do.

In some cases, prisoners or people under arrest can be forcibly sedated without a court order if they are in imminent danger, such as when a bag of drugs bursts open inside them and they begin to have a seizure or fall unconscious. But the hospital's records indicate Clement was behaving normally and showed no signs of any medical emergency.

"Spoke to Shirley of Risk Management," a physician wrote, documenting the medical decision-making that afternoon. "OK to treat, sedate & remove FOB (foreign object body) against (patient's) will despite his personal refusal."

The following month, Clement received a $6,792 bill from Albany Med for the procedures. Hospital records indicate the final diagnosis as "hemorrhoids."

A spokeswoman for Albany Medical Center declined to comment two weeks ago on its policies regarding forcible sedations of people in police custody. The spokeswoman also declined comment on why the hospital didn't require police to obtain a search warrant that day.

Nationwide, evidence obtained during forcible sedations of people by medical facilities has been challenged in various courts. But most of those cases, including one in San Francisco in which a hospital refused to forcibly search a woman's body for drugs, involved instances where police had search warrants.

Elmer Streeter, a spokesman for St. Peter's Hospital, said the hospital considers a patient's ability to give consent paramount.

"There is some leeway given to doctors, and the leeway is again what is a potential harm to the patient," Streeter said. "It does not seem that with a conscious and alert patient that people would take action without the patient's consent. ... If a court order were to exist that might force us to override it."

While Clement's case is arguably one of the more egregious on record, Kindlon said there are examples of civil rights violations at the bus station that date back decades.

In 1992, Kindlon represented a Boston man who won a $200,000 verdict against Albany police after he was roughed up and falsely arrested during a bus station stop.

"If the cops do a bad search and find nothing, there is usually no legal consequence," he said. "Any such 'victim' is glad just to get away with his skin still on."

"If the cops find drugs, since the penalties are so severe, the defendant is almost always eager to make a deal," he said. "The cops realize, very quickly, they can get away with anything they want."