New York City is home to a plethora of fantastic and popular nightclubs. LAVO, 1OAK, Webster Hall, Cielo, the Sullivan Room, subMercer, Pacha, RdV, Bossa Nova Civic Club, Tenjune, the Village Underground, Bembe, Club Macanudo, the Woods, bOb Bar, and the 40/40 Club are just a few of the clubs that New Yorkers and people from around the world visit to dance and have a great time in the city. Undercover narcotics officers have prowled nightclubs and attempted to buy drugs from dealers operating inside the clubs for a long time. However, as nightclubs in New York come under more pressure from law enforcement authorities to ensure that their establishments are drug-free, more and more people are being arrested as a result of searches by private security guards and bouncers patrolling the nightclubs. For example, one popular dance club in Manhattan, Webster Hall, has instituted a policy of routinely frisking people seeking admittance at the front door to ensure that they are not attempting to bring any drugs inside. We are aware of one recent incident in which a female bouncer at the entrance to Webster Hall reached into the bra of a woman trying to enter the club, and in so doing, discovered MDMA (ecstasy) inside her bra. This woman was then referred to the police at the 9th Precinct, who arrested her and gave her a Desk Appearance Ticket for a violation of Penal Law Section 220.03 (a Class A misdemeanor punishable by up to one year in prison).
Notably, the security guards at private clubs are not normally required to adhere to the Fourth Amendment rules about unlawful searches and seizures. Obviously, the Fourth Amendment instructs that police officers are not allowed to frisk someone without sufficient cause to do so, and any evidence obtained by an unlawful police seizure is inadmissible in court per the doctrine known as "fruit of the poisonous tree". Thus, because private security guards at clubs are not generally constrained by the Fourth Amendment, a prosecutor can admit into evidence drugs that were obtained from a search by a private security guard that would have been inadmissible if performed by a police officer.
However, these club-search cases are very defensible in a number of ways. First, there can be serious chain of custody issues in these cases; a skilled defense attorney may be able to demonstrate that the private security guards failed to properly secure or keep track of the drugs once seized, or that they were intermingled with drugs seized from some other patron. In those cases, the prosecution may be unable to reliably attribute certain drugs to certain individuals, as required at a trial. Moreover, these private security guards often have not received nearly the same degree of training as police officers, and they also may not be as accustomed to being as diligent with respect to their paperwork. Accordingly, the credibility and reliability of the testimony of these bouncers and security guards may be very contestable at trial.