Commonwealth v. Amado , 474 Mass. 147 ( 2016 )

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SJC-11914
COMMONWEALTH vs. ADERITO P. AMADO.
Plymouth. December 8, 2015. - April 19, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Controlled Substances. Search and Seizure, Protective frisk,
Probable cause, Body examination. Constitutional Law,
Search and seizure, Probable cause. Probable Cause.
Practice, Criminal, Motion to suppress.
Indictment found and returned in the Superior Court
Department on July 18, 2011.
A pretrial motion to suppress evidence was heard by
Frank M. Gaziano, J., and the case was tried before Merita A.
Hopkins, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Susan E. Taylor for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
HINES, J. After a jury trial, the defendant, Aderito
Amado, was convicted of trafficking in fourteen grams or more of
2
cocaine, in violation of G. L. c. 94C, § 32E (b). The Appeals
Court affirmed the conviction in an unpublished memorandum and
order issued pursuant to its rule 1:28. We granted the
defendant's application for further appellate review to consider
whether the search of the defendant's genital area during a
patfrisk for weapons was a strip search and, if so, whether it
satisfied the probable cause requirement articulated in
Commonwealth v. Morales, 462 Mass. 334, 342 (2012). We conclude
that although the police properly initiated the motor vehicle
stop, the subsequent search, which involved pulling the
defendant's clothing away from his body, shining a flashlight
inside the clothing, and removing an object from his buttocks,
was an unlawful strip search on two grounds. First, the search
of the defendant's buttocks area exceeded the permissible scope
of a patfrisk for weapons where it occurred after the police had
dispelled the safety concerns prompting the exit order and
patfrisk. Second, the search met the criteria of a strip search
as we have defined it, and the search was unlawful because the
police lacked probable cause to believe the defendant was
concealing drugs on his person and it was otherwise
unreasonable. Thus, the judge erred in denying the motion to
suppress the evidence obtained during the search. We reverse
the denial of the motion to suppress and remand the matter to
the Superior Court for further proceedings.
3
1. Motion to suppress. a. Background. On June 2, 2011,
at approximately 9:40 P.M., four officers of the Brockton police
department were on patrol on North Main Street, driving in an
unmarked vehicle. They observed a green Acura automobile
pulling out of a nearby gasoline station. At least one of the
officers recognized the defendant as the front seat passenger
and recalled that he had been arrested a few weeks earlier for
unlawful possession of a firearm.1 The police made a U-turn in
the gasoline station and followed the automobile. One of the
officers noticed that the registration plate was not properly
affixed. The driver of the automobile made two quick turns in
what appeared to be an effort to avoid police scrutiny. The
police activated their blue lights and pulled over the
automobile. All four of the police officers got out of their
vehicle and approached the automobile with two officers on each
side. As the police officers approached, one of them observed
the defendant reach his left arm behind his body. One of the
officers, Detective George Almeida, alerted the others, stating,
"We got movement up front." A second officer observed the
defendant bring his left arm back down to the front of his body.
One of the police officers requested a driver's license and
registration from the operator of the automobile; another
1
Aderito Amado had been arrested after the police searched
a vehicle and found a handgun near the passenger seat where he
was sitting.
4
illuminated the passenger compartment with his flashlight. The
officers noted that despite "open[]" and "engag[ing]"
communications in the past, the defendant on this occasion was
extremely nervous; he avoided eye contact, his hands trembled,
and he was breathing rapidly. Concerned for his safety,
Detective Brian Donahue ordered the defendant out of the
automobile. As the defendant emerged, Donahue did not observe
any bulges or protrusions in the defendant's clothing suggesting
a weapon. Donahue then conducted a patfrisk, felt what he
surmised to be a roll of cash in the defendant's front pocket,
and asked for the amount. The defendant responded that the roll
contained $500 in cash. When Donahue continued the patfrisk by
running his hand up the defendant's inner thigh, he felt an
object behind the defendant's testicles. Based on its shape and
feel, Detective Donahue did not suspect that the object was a
gun. He called out to the other officers that the defendant was
"jocking" something.2 The defendant continuously denied carrying
anything. Another officer pulled back the waistband of the
defendant's shorts and underwear to view his bare backside. The
detectives observed a plastic bag protruding from the
defendant's buttocks. At the sight of the bag, the police
handcuffed the defendant who declined to remove the bag himself.
2
"Jocking" refers to a suspect's attempt to hide narcotics
in the buttocks area.
5
A police supervisor arrived, and he and Donahue took the
defendant between two nearby buildings, where they once again
pulled out the defendant's shorts and underwear, this time
shining a flashlight on his bare buttocks. The contents of the
bag were not visible, but the officers ascertained that the bag
was not inside the defendant's rectum. The police supervisor
pulled the bag out from the defendant's buttocks. The drug
laboratory later determined that the bag contained approximately
twenty-four grams of "crack" cocaine.
The defendant filed a pretrial motion to suppress the
plastic bag and its contents, claiming that the police (1)
illegally stopped the automobile, (2) lacked adequate grounds to
issue an exit order, and (3) improperly searched his person.
After a hearing, the judge denied the defendant's motion to
suppress the bag and its contents, ruling that (1) the police
had the authority to stop the automobile based on the defective
registration plate light; (2) the exit order was justified by
safety concerns, including the high crime area of the stop as
well as the defendant's recent arrest and movements within the
automobile; and (3) because the exposure of the defendant's
buttocks did not occur while the defendant was naked, it was not
a strip search under Commonwealth v. Prophete, 443 Mass. 548,
6
557 (2005).3 Rejecting the defendant's claims, the motion judge
concluded that the police, "[h]aving lawfully discovered the
highly incriminating plastic baggies, . . . possessed probable
cause to believe that it contained narcotics and to seize the
narcotics in a noninvasive manner."
The defendant reprises the argument he made in his motion
to suppress the narcotics, namely that the exit order following
a civil motor vehicle infraction and a patfrisk reaching his
testicles were unreasonable. He maintains that after the
patfrisk, the police conducted a strip search without probable
cause. The Commonwealth counters that the defendant waived his
objections to the exit order and patfrisk because he did not
pursue these issues in the Appeals Court. Instead, the
Commonwealth urges this court to limit the inquiry to a
determination whether pulling the defendant's shorts and
underwear away from his body constituted a strip search under
Morales, 462 Mass. at 342, and argues that the search was not a
strip search or, in the alternative, that the search was
reasonable because it was conducted away from the road and only
the officers viewed the defendant's bare skin.
3
We have since determined that a strip search occurs when
the last layer of clothing is moved -- not necessarily removed
-- to expose an intimate area. See Commonwealth v. Morales, 462
Mass. 334, 342 (2012). The judge did not have the benefit of
this decision at the time of his ruling on the motion to
suppress.
7
b. Discussion. As an initial matter, we agree that the
defendant failed to assert a specific challenge to the validity
of the exit order and the scope of the patfrisk in the Appeals
Court. Nonetheless, we address the issues as our authority to
do so is derived from two principles of appellate review.
First, an inquiry into the propriety of the exit order and the
scope of the protective search is appropriate and necessary.
The justification for the exit order necessarily is relevant to
and constrains the scope of the subsequent patfrisk and the
ensuing body search. Commonwealth v. Silva, 366 Mass. 402, 407
(1974), quoting Terry v. Ohio, 392 U.S. 1, 19 (1968) ("search
must be 'strictly tied to and justified by the circumstances
which rendered its initiation permissible'"). Second, where an
issue is raised below, we review claims for error creating a
substantial risk of a miscarriage of justice. See Commonwealth
v. Arzola, 470 Mass. 809, 814 (2015), cert. denied, 136 S. Ct.
792 (2016). Thus, we now review both claims as a necessary
predicate to our determination of the central issue underlying
this appeal: whether the search of the defendant's buttocks
area was reasonable.
"In reviewing a ruling on a motion to suppress evidence, we
accept the judge's subsidiary findings of fact absent clear
error and leave to the judge the responsibility of determining
the weight and credibility to be given . . . testimony presented
8
at the motion hearing" (citation omitted). Commonwealth v.
Wilson, 441 Mass. 390, 393 (2004). "We review independently the
application of constitutional principles to the facts found."
Id.
i. The stop. "Where the police have observed a traffic
violation, they are warranted in stopping a vehicle."
Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting
Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). The stop of
the vehicle cannot last "longer than reasonably necessary to
effectuate the purpose of the stop" (citation omitted).
Commonwealth v. Cruz, 459 Mass. 459, 465 (2011). Here, the
officers initially pursued the automobile because they
identified the defendant as a passenger and wanted to
investigate further based on his prior arrest for possession of
a firearm. During the pursuit, it happened that the police
developed a proper basis for the stop once they noticed the
vehicle's unlit registration plate. Notwithstanding the
pretextual basis for the stop, our law validates such police
conduct so long as it is justified on independent grounds.4 See
4
Such stops, though lawful under our current jurisprudence,
implicate important policy concerns about racial profiling in
encounters between the police and persons of color. We leave to
another day consideration whether and how police authority
should be limited when a stop is clearly pretextual.
9
Santana, supra at 209 (vehicle stops reviewed under police
authority not pretext).
ii. Exit order and patfrisk. Although exit orders issued
to passengers during a routine traffic stop are permitted by the
Fourth Amendment to the United States Constitution, Maryland v.
Wilson, 519 U.S. 408, 415 (1997), art. 14 of the Massachusetts
Declaration of the Rights offers greater protection to
passengers. Commonwealth v. Gonsalves, 429 Mass. 658, 660-661,
668 (1999).5 There are three situations in which police officers
may properly order a passenger from a validly stopped vehicle.
First, an exit order is proper when "a reasonably prudent man in
the policeman's position would be warranted in the belief that
the safety of the police or that of other persons was in
danger." Cruz, 459 Mass. at 466, quoting Gonsalves, supra at
661. Second, an exit order is proper if the officer developed a
reasonable suspicion based on specific and articulable facts
5
It is in this context that the defendant complains that he
was ordered from the vehicle "one minute" after the officers
requested the driver's license and registration. The defendant
suggests that the rapidity of the exit order undermines its
validity, but our cases have held that it is prolonged stops
that often exceed police authority. See Commonwealth v. Torres,
424 Mass. 153, 163 (1997) (continued detention of driver and
passenger impermissible where driver had produced license and
registration in satisfaction of the purpose of the stop). But
see Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 643-644
(2001) (continued detention of driver leading to plain view
observation of illegal weapons was permissible while awaiting
results of license and registration inquiry). Regardless, the
underlying issue remains the initiation and scope of the
defendant's search.
10
that the passenger was engaged in, or about to engage in,
criminal activity apart from any offense committed by the
driver. Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997).
Third, an exit order is proper where the police are conducting a
search of the automobile on other grounds, such as the
automobile exception to the warrant requirement. Id. at 157.
Here, the motion judge articulated a confluence of factors
justifying an exit order based on safety: the defendant's
recent arrest for being in an automobile with an unlawful
firearm; the defendant's arm movements behind his back and then
forward again as the officers approached the automobile; the
defendant's lack of eye contact with Detective Donahue; the
defendant's rapid breathing; and the high crime area of the
stop. We discern no basis on which to disturb the judge's
factual findings or ruling that the exit order based on safety
concerns was justified. See Wilson, 441 Mass. at 393.
Accordingly, we turn to whether the scope of the subsequent
protective search was justified. See Commonwealth v. Torres,
433 Mass. 669, 675-676 (2001).
"The scope of a Terry search cannot be general; rather, it
is strictly tied to the circumstances that render its initiation
permissible." Wilson, 441 Mass. at 396, citing Commonwealth v.
Johnson, 413 Mass. 598, 601 (1992). Where an officer has issued
an exit order based on safety concerns, the officer may conduct
11
a reasonable search for weapons in the absence of probable cause
to arrest. Terry v. Ohio, 392 U.S. at 25-26. Such protective
searches are reasonable if "confined to what is minimally
necessary to learn whether the suspect is armed and to disarm
him once the weapon is discovered." Commonwealth v. Almeida,
373 Mass. 266, 272 (1977). See Silva, 366 Mass. at 407-408.
"In most instances the search must be confined to a pat-down of
the outer clothing of the suspect." Id. at 408. However, under
the "plain feel" doctrine, an officer may seize contraband
discovered during a Terry-type frisk if the officer feels an
object whose contour or mass makes its identity immediately
known. Wilson, supra at 396-397, citing Minnesota v. Dickerson,
508 U.S. 366, 373, 375-377 (1993).
Here, the officer did not see any protrusions or suspicious
bulges in the defendant's athletic shorts. When the officer pat
frisked the defendant, he felt an object behind the defendant's
testicles that he knew was not a weapon.6 At this point, the
safety exigency justifying a search of the defendant's person
ended as there was no remaining suspicion that the defendant
possessed a weapon. Silva, 366 Mass. at 408 ("Only after the
6
The Commonwealth asserts that the testicles and
surrounding area cannot be declared search-free zones because
small weapons can be hidden in the groin region. There is no
need to make such a declaration here, and such a declaration
would be inapplicable, because the officer knew the bulge was
not a weapon.
12
pat-down gives indication that a weapon is present do the police
have the privilege to search further"). Cf. Commonwealth v.
Blevines, 438 Mass. 604, 608 (2003) (officer justified in
retrieving "hard object" felt during patfrisk to dispel concern
it was weapon).
Nor was a further search warranted under the "plain feel"
doctrine, because the officer was unable to identify the
contraband nature of the object by touch alone. Wilson, 441
Mass. at 397 ("plain feel" doctrine prohibits general
exploratory search where contraband not immediately apparent on
touch). Although the presence of an object behind the
defendant's testicles was certainly suspicious, and it may have
justified additional investigation, any further searches of the
defendant's person required probable cause that the defendant
was committing an offense. See Morales, 462 Mass. at 339.
iii. The strip search. In Morales, 462 Mass. at 342, we
determined that a strip search occurs "when a detainee remains
partially clothed, but in circumstances during which a last
layer of clothing is moved (and not necessarily removed) in such
a manner whereby an intimate area of the detainee is viewed,
exposed, or displayed." Morales, which was decided after the
motion to suppress hearing in this case, see note 3, supra,
clarified the existing "definition of a strip search as one in
which a detainee is commanded to remove the last layer of his or
13
her clothing." Prophete, 443 Mass. at 557. In Morales, we
explained that, although complete nakedness was a determining
factor in the strip search at issue in Prophete, total undress
is not necessary to effect a strip search. Morales, supra.
Here, the trial judge did not address whether the initial
pulling back of the defendant's clothing during the patfrisk was
a strip search. The Appeals Court assumed, without deciding,
that it was a strip search requiring probable cause. As no
evidence was confiscated from this initial search, we do not
address the matter. However, the second pulling back of the
defendant's clothing was different; it constituted a strip
search. In this case, when the police supervisor and the
arresting officer opened the waistband of the defendant's
underwear, exposed his bare skin, directed a flashlight on the
area, and then retrieved the object, the defendant's private
area was both viewed and exposed. In these circumstances, the
police conducted a strip search within the meaning of Morales.
462 Mass. at 342. We next determine whether probable cause
existed to justify the strip search.
Although the United States Supreme Court requires only
reasonable suspicion to initiate strip searches under the Fourth
Amendment, we have concluded that "probable cause is the
appropriate standard that must be met for a strip or visual body
cavity search to be constitutionally permissible" under art. 14.
14
Prophete, 441 Mass. at 553, citing Commonwealth v. Thomas, 429
Mass. 403, 407-408 (1999). This is so because strip searches
"by their very nature are humiliating, demeaning, and terrifying
experiences that, without question, constitute a substantial
intrusion on one's personal privacy rights." Morales, 462 Mass.
at 339-340, quoting Prophete, supra. Such searches may precede
formal arrest as long as probable cause existed at the time the
search was made, independent of the results of the search.
Commonwealth v. Clermy, 421 Mass. 325, 330 (1995), citing
Johnson, 413 Mass. at 602.
Here, the trial judge found that the police developed
probable cause to arrest the defendant for a narcotics violation
during the patfrisk. As a result, the strip search was deemed a
search incident to arrest for a suspected drug offense. In
urging us to uphold these determinations, the Commonwealth
points to the Clermy case, where a defendant was arrested on an
outstanding motor vehicle warrant while sitting on the steps of
a known "crack" house in an area of high arrest rates for
narcotics violations. 421 Mass. at 326. After the patfrisk
revealed a paging device and sixty dollars in cash, the police
placed the defendant in a cruiser and conducted a second safety
search, which revealed a hard object in his genital area. Id.
at 327. The police retrieved a plastic prescription bottle
containing twenty-five pieces of "crack" cocaine. Id. On
15
review, this court concluded that "[i]t is eminently reasonable
to infer that a prescription bottle carried in this manner would
contain contraband, and, most probably, a controlled substance."
Id. at 330-331.
Although probable cause may develop during a patfrisk, that
was not the case here. The arresting officer knew the object
was not a weapon but only suspected it was contraband, based on
his experience finding drugs concealed in the genital area.
Other than a suspicious but unknown object, there existed no
indication that the defendant was committing or about to commit
a drug offense. The defendant's arm movements and nervousness
prompted the protective patfrisk but suggested no connection to
suspected narcotics. He was ordered out of an automobile
stopped for a minor motor vehicle infraction, but not for
suspected drug activity. He was not the driver of the vehicle,
nor was there concern about operating while under the influence.
In addition, his clothing showed no visual clues indicating the
presence of narcotics on his person. Last, the vicinity of the
stop was not identified as an area known for drug trafficking.
In sum, the police officer's reasonable suspicion could not have
ripened into probable cause without the additional and
impermissible searching of the defendant's person that occurred
here. See Wilson, 441 Mass. at 396, citing Dickerson, 508 U.S.
at 378-379 ("If the officer must manipulate or otherwise further
16
physically explore the concealed object in order to discern its
identity, then an unconstitutional search has occurred"). The
facts here placed the defendant in a probable cause "no man's
land" as far as the police were concerned, where the police had
reasonable suspicion to believe the defendant was engaged in
something illegal but did not have probable cause to believe
that the suspected illegal activity involved a drug offense.
The dissent posits that the police had probable cause to
believe that the defendant was "'jocking' illegal drugs"
essentially because "when a police officer feels a foreign
object in a male's groin or buttocks area, it is reasonable
inference that the object contains illegal drugs." Post at .
According to the dissent, that inference "grows stronger still
where the defendant twice denies that he is hiding anything,
even though it is plain that he is." Id. at . The specific
facts cited by the dissent in support of probable cause, of
course, are highly suspicious. However, what was required here
was that the information known to the police at the time of the
search connected the defendant to possession of illegal drugs,
the offense for which probable cause must be established. Where
the defendant is a passenger in a vehicle stopped on pretextual
grounds to investigate the defendant because of his past arrest
for possession of a firearm, that connection is missing.
Furthermore, that connection cannot be established by the police
17
officer's experience with other detainees who in the past may
have secreted contraband in the groin area. That experience,
without information particular to the defendant's involvement
with contraband, did not transform the random encounter into
probable cause to believe this defendant was committing a drug
offense. There is no doubt that a denial, especially an absurd
one, may heighten an officer's suspicion. Yet heightened
suspicion is not probable cause, and we have rejected the
proposition that the police require only reasonable suspicion
before conducting a strip search. Thomas, 429 Mass. at 408.
Even where probable cause for a strip search exists, the
search must also be reasonably conducted. Morales, 462 Mass. at
342. Reasonableness is not a fixed concept. Rather it is
determined by considering "the scope of the particular
intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
conducted." Thomas, 429 Mass. at 407, quoting Bell v. Wolfish,
441 U.S. 520, 559 (1979). See Bell, supra at 558 (finding
visual body cavity searches of inmates constitutional). In
Morales we determined that the unconsented-to police observation
and the public exposure of the defendant's intimate areas was
unreasonable as "a significant intrusion of the defendant's
privacy." 462 Mass. at 341. The search in this case failed to
meet the test of reasonableness for the same reason as in
18
Morales. That is, the police conducted the search of the
defendant in a public location. Id. The attempt to mitigate
the public exposure by taking the defendant between two
buildings to remove the bag from his genital area did not render
the search private where any number of persons could have
observed the encounter.
The dissent challenges our view of the reasonableness of
the search, asserting that "[t]his is a far cry from the strip
search in the Morales case [462 Mass. at 338] where the
defendant was seen 'lying face down on the sidewalk with his
buttocks exposed.'" Post at . The distinction is that the
defendant's "buttocks and groin area were not exposed to any
passerby," and the officers attempted "to obtain greater
privacy." Id. at . The operative fact in Morales was the
public nature of what we deemed to be a strip search. That is
precisely what happened here, and reasonableness is not
established just because, as the dissent puts it, "[t]here is no
reason to believe that . . . anyone other than the searching
detectives could have seen the defendant's buttocks or groin."
Post at . On the record before us, that fact is speculative.
Indeed, the "humiliating, demeaning, and terrifying
experience[]," Morales, supra at 339-340, quoting Prophete, 441
Mass. at 553, that is the hallmark of a strip search exists even
where the arresting officers are the only persons to view a
19
suspect's intimate areas. Thus, where the safety exigency had
ended and the search could have been observed from the
surrounding residential units, we are persuaded that the search
was not reasonable in these circumstances.
Conclusion. We conclude that the body search of the
defendant constituted a strip search, that the police lacked
probable cause to justify the search, and that it was
unreasonable in the circumstances. Accordingly, the motion to
suppress the contents of the bag retrieved during the strip
search should have been allowed. We therefore vacate the
judgment of conviction and remand the matter to the Superior
Court for further proceedings consistent with this opinion.
So ordered.
GANTS, C.J. (dissenting, with whom Spina and Cordy, JJ.,
join). I agree with the court regarding the law. The pulling
back of the defendant's waistband, first to observe the object
that the defendant was "jocking," and later to retrieve it, were
strip searches under our law. See Commonwealth v. Morales, 462
Mass. 334, 342 (2012) ("A strip search . . . may occur when a
detainee remains partially clothed, but in circumstances during
which a last layer of clothing is moved (and not necessarily
removed) in such a manner whereby an intimate area of the
detainee is viewed, exposed, or displayed"). Probable cause was
needed to conduct these strip searches. See id. at 339, quoting
Commonwealth v. Prophete, 443 Mass. 548, 554 (2005) ("A search
of a defendant 'lawfully could progressively extend into a strip
(or a visual body cavity) search only if such a search was
justified by probable cause to believe that the defendant had
concealed [drugs] on his person or his clothing that would not
otherwise be discovered by the usual search incident to
arrest'"). And to pass constitutional muster, the strip
searches must have been reasonably conducted under the
circumstances. See Morales, supra at 342 ("For a visual body
cavity search and a strip search to be constitutional under the
Fourth Amendment [to the United States Constitution] and art. 14
[of the Massachusetts Declaration of Rights], such searches also
must be reasonably conducted").
2
I dissent because I disagree with the court's application
of the law to these facts. Based on the factual findings of the
motion judge, which were not clearly erroneous, there was
probable cause to believe that the defendant was "jocking"
illegal drugs, and it was reasonable under the circumstances to
pull the waistband of his shorts back to observe and later
retrieve the plastic bag containing the drugs, because the only
persons who could observe the defendant's buttocks and groin
area in such a strip search were the detectives who conducted
it. See id. at 343.
1. Probable cause for the search. Based on the judge's
findings, when Brockton police Detective Eric Hilliard pulled
back the defendant's waistband to look for drugs, the following
information was known to the police:
 As the detectives approached the vehicle in which the
defendant was a passenger, the defendant was seen reaching
his left arm behind his body.
 When Detective Brian Donahue approached the vehicle, the
defendant appeared "extremely nervous -- he stared
straight ahead seeking to avoid eye contact, his hands
trembled, his chest heaved, and he was breathing rapidly."
The defendant's demeanor was different from previous
encounters Detective Donahue had with the defendant, where
the defendant was "engaging" and "spoke openly."
3
 The defendant had a wad of $500 in cash in his front
pocket.
 When Detective Donahue conducted a frisk of the
defendant's inner thighs and crotch area, he felt a hard
object behind the defendant's testicles that he knew was
not "part of the male anatomy."
 When Detective Donahue asked the defendant what he was
hiding there, the defendant twice denied hiding anything.
 Detective Donahue knew from his training and experience
that drug dealers hide narcotics in the buttocks area, and
had recovered narcotics hidden in that manner from drug
dealers before. He referred to this practice as "jocking
something."
Courts inside and outside of Massachusetts have recognized
that, when a police officer feels a foreign object in a male's
groin or buttocks area, it is a reasonable inference that the
object contains illegal drugs. See Commonwealth v. Clermy, 421
Mass. 325, 327, 330-331 (1995) ("It is eminently reasonable to
infer that a prescription bottle carried [between the
defendant's legs in the area of his genitals] would contain
contraband, and, most probably, a controlled substance");
United States v. Walker, 181 F.3d 774, 779 (6th Cir.), cert.
denied, 528 U.S. 980 (1999) (seizure of plastic bag justified
where police officer felt bulge under suspect's pants while pat
4
frisking groin and buttocks); People v. Champion, 452 Mich. 92,
111-112 (1996), cert. denied, 519 U.S. 1081 (1997) (probable
cause to believe that pill bottle contained contraband where
police discovered bottle in defendant's groin region). See
also 2 W.R. LaFave, Search and Seizure § 3.6(b), at 403-404
(5th ed. 2012) ("If the package is concealed in the groin area,
a finding of probable cause is much more likely. And even if
the touching does not alone supply probable cause, it may
contribute together with other facts to a probable cause
finding" [footnotes omitted]).
This inference grows stronger where the officer has found
narcotics hidden in that manner before and knows from his or
her training and experience that drug dealers hide narcotics
there. See United States v. Ashley, 37 F.3d 678, 681 (D.C.
Cir. 1994), cert. denied, 513 U.S. 1181 (1995) (probable cause
where officer felt object in groin area during patfrisk and
officer testified that he had previously found narcotics hidden
in that area of the body).
This inference grows stronger still where the defendant
twice denies that he is hiding anything, even though it is
plain that he is. See Commonwealth v. Gentile, 437 Mass. 569,
574 (2002) ("inconsistent, false, [and] implausible" statements
by defendant to police contributed to finding of probable
cause). See also United States v. Ilazi, 730 F.2d 1120, 1127
5
(8th Cir. 1984) (along with other suspicious circumstances,
defendant's failure to explain unusual bulge in boot
constituted probable cause to arrest for narcotics offense).
The discovery that the defendant was "jocking something"
and his false denial that he was hiding anything gave
incriminating meaning to the earlier observation of the
defendant reaching his left arm behind his body, which is
consistent with his placement of something in his buttocks
under his loose fitting athletic shorts. It also gave
incriminating meaning to the defendant's demeanor with
Detective Donahue, which was different from prior encounters.
I recognize that, before this encounter, there was no
information that the defendant dealt or used controlled
substances. But such information would simply have gilded the
lily of probable cause. There was abundant probable cause
without this information. After all, if the object did not
contain contraband, why would a person keep it in his buttocks
and then, when it was felt by a police officer during a
patfrisk, deny its very existence?1
1
I also recognize that this is the most pretextual of
stops: the detectives were looking for a legal justification to
stop the vehicle, and found it when they saw that the license
plate was not properly illuminated. But even if we were, for
this reason, to apply heightened scrutiny to our probable cause
analysis, the facts here survive such scrutiny.
6
2. Reasonableness of the strip search. In evaluating the
reasonableness of a strip search, "[h]ow a search is conducted
is of the utmost importance, with the least amount of intrusion
constituting the better practice." Morales, 462 Mass. at 343.
Here, the defendant's clothing was not removed, and his
buttocks and groin area were not exposed to any passerby who
might observe the search. Rather, the searches in this case
were strip searches only because a detective lifted the
waistband of the defendant's athletic shorts and underwear,
thereby exposing his private parts to the detectives who
conducted the search. There is no reason to believe that, in
either search, anyone other than the searching detectives could
have seen the defendant's buttocks or groin. During the second
search, where the detectives retrieved the plastic bag from the
defendant's buttocks, they moved to an alley between
residential buildings in an effort to obtain greater privacy,
but all they ultimately did was pull back the defendant's
waistband again, this time perhaps a bit further. This is a
far cry from the strip search in the Morales case where the
defendant was seen "lying face down on the sidewalk with his
buttocks exposed." See id. at 338. Certainly, if the police
had taken the defendant to a private room to conduct a strip
search, no one would question that it was conducted reasonably,
because the only persons who would then see the defendant's
7
buttocks and groin would be the police officers conducting the
strip search. See id. at 342-343 ("Concerning the place where
such a search is conducted, courts have indicated that, in
order to preserve a detainee's privacy, a private room is
preferable"). But the same is true here, because all that the
searching detectives did was pull back the defendant's
waistband, exposing his private areas only to the detectives
who conducted the search. Under these circumstances, I
conclude that the strip searches were "perfectly reasonable in
scope and manner and did not result in either the public
disclosure of the defendant's buttocks or undue embarrassment
or humiliation." See id. at 345 (Cordy, J., concurring).
3. Conclusion. Because I conclude that there was probable
cause to believe that the defendant was "jocking" illegal
drugs, and that the conduct and manner of the strip searches to
observe and later retrieve the plastic bag containing the drugs
were reasonable under the circumstances, I would affirm the
motion judge's denial of the defendant's motion to suppress.
Therefore, I respectfully dissent.