Commonwealth v. Vick , 90 Mass. App. Ct. 622 ( 2016 )

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14-P-1150 Appeals Court
COMMONWEALTH vs. TYRONE VICK.
No. 14-P-1150.
Suffolk. September 7, 2016. - November 8, 2016.
Present: Kafker, C.J., Milkey, & Blake, JJ.
Controlled Substances. Practice, Criminal, Motion to suppress.
Constitutional Law, Investigatory stop, Reasonable
suspicion, Probable cause, Search and seizure. Search and
Seizure, Reasonable suspicion, Probable cause, Body
examination. Probable Cause.
Indictments found and returned in the Superior Court
Department on June 7, 2007.
A pretrial motion to suppress evidence was heard by Charles
J. Hely, J., and the cases were tried before Judith Fabricant,
J.
Genevieve K. Henrique for the defendant.
Nicholas Brandt, Assistant District Attorney, for the
Commonwealth.
KAFKER, C.J. The defendant, Tyrone Vick, was convicted of
possession of a class B substance, see G. L. c. 94C, § 34,
following a jury trial. He appeals, arguing that the motion
2
judge erred in denying the defendant's motion to suppress
evidence seized as the result of a stop, a search at the scene,
and a search at the police station.1 The search at the police
station involved the use of force to pull down the defendant's
pants and to remove a plastic bag containing drugs (which an
officer had felt during the search at the scene) protruding from
his buttocks. On appeal, the defendant claims that (1) the
motion judge erred by failing to resolve conflicting testimony
regarding material facts;2 (2) the search at the police station
constituted a manual body cavity search not supported by a
warrant issued by a judge, as required by Rodriques v. Furtado,
410 Mass. 878, 888 (1991); and (3) the police station search,
even if characterized as a strip or visual body cavity search,
was unreasonably conducted, particularly because it was
performed in violation of a Boston police department policy
requiring a warrant for the use of force to effectuate such a
search. We affirm.
1
A single justice of the Supreme Judicial Court denied the
defendant's application for leave to pursue an interlocutory
appeal. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass.
1501 (1996).
2
The defendant claims that the failure to resolve the
conflicting testimony requires a remand for further findings,
and that only after the further findings resolve the conflicts
can we determine whether the stop and the subsequent searches
were constitutionally justified. We discuss the testimony, the
stop, and the searches infra.
3
Background. "We summarize the facts found by the motion
judge following the evidentiary hearing, supplemented where
necessary with undisputed testimony that was implicitly credited
by the [motion] judge." Commonwealth v. Oliveira, 474 Mass. 10,
11 (2016). On May 9, 2007, at approximately 6:00 P.M., Boston
police Officers Peter Cazeau and Linda Stanford, both in
uniform, were on patrol in a marked cruiser near the
intersection of Stuart and Tremont Streets, in an area of Boston
known for illegal drug activity. Cazeau observed another
officer on foot and approached him in the cruiser. The officer
informed Cazeau that a woman had reported several males acting
suspiciously in a nearby alley. Cazeau and Stanford observed
two men exit the alley. Both recognized one of the men as
Anthony Cianci, an individual with several prior drug arrests.3
Cianci entered the passenger seat of a vehicle parked illegally
in a crosswalk on Tremont Street. The defendant was in the
driver's seat of the vehicle.
Cazeau and Stanford waited for the vehicle to move out of
the crosswalk. When the vehicle remained, Cazeau issued a
parking citation. While placing the citation on the windshield,
Cazeau observed the defendant with his pants down around his
knees, underpants pulled to the side, and penis exposed. Cianci
3
Officer Cazeau had arrested Cianci in the past. Officer
Stanford had had "numerous" prior encounters with Cianci in the
course of her duties.
4
was facing the defendant. Cazeau, intending to arrest one or
both of the individuals for engaging in sexual conduct for a
fee, see G. L. c. 272, § 53A, indecent exposure, see G. L.
c. 272, § 53(a), or open and gross lewdness, see G. L. c. 272,
§ 16, told both of the individuals not to move their hands.
Cazeau ordered Cianci out of the vehicle and searched him.
Cazeau recovered a pipe containing white residue, later
determined to be "crack" cocaine, from Cianci's pocket.
Stanford radioed for backup.
When Officer Steven Green arrived, he ordered the defendant
to the back of the vehicle and searched him for weapons. During
the search, Green felt a hard object in the cleft of the
defendant's buttocks. When Green touched the object, the
defendant tightened the muscles of his buttocks and "pulled
away." The defendant violently resisted the remainder of the
search, prompting the officers to handcuff him. The defendant
continued to thrash around and refused to spread his legs. The
officers placed him in the back of a cruiser to transport him to
the police station. While in the cruiser, the defendant
continued to fidget and to flail, attempting to get his cuffed
hands down the back of his pants. He was found with a handcuff
key on his wrist band. A drug-sniffing dog was brought to the
5
scene and the dog alerted to the presence of drugs in the
defendant's vehicle.4
At the station, the defendant was placed in a holding cell
while Officer Green obtained permission from his supervisor to
conduct a strip search. Green then informed the defendant that
he had authorization to conduct a strip search, but that it
would not be necessary if the defendant removed the object from
his buttocks voluntarily. When the defendant refused, two
officers attempted to remove his pants. The defendant resisted
forcefully, prompting three or four more officers to enter the
cell to assist. With the defendant on the ground, the officers
were able to remove his pants and see the object between his
buttocks, which Green immediately recognized as crack cocaine
wrapped in a plastic bag.5 Green "brushed" or "flicked" the
object with his fingers and it "popped out on the ground,"
according to his testimony. The motion judge found that Green,
"[w]ithout manipulating the defendant's body, . . . grabbed the
bag and pulled it out from between the defendant's buttocks."
The motion judge further found that the "bag came out easily
without any significant pulling force" and "without any touching
or probing of [the defendant's] body cavities." The defendant
4
No drugs were found in the area where the dog alerted.
5
The bag contained several smaller bags with crack cocaine
in them.
6
was charged with possession of a class B substance with intent
to distribute, subsequent offense, G. L. c. 94C, § 32A(b);
committing a drug violation in a school zone, G. L. c. 94C,
§ 32J; and resisting arrest, G. L. c. 268, § 32B.
Standard of review. "'In reviewing a ruling on a motion to
suppress evidence, we accept the judge's subsidiary findings of
fact absent clear error,' and we defer to the judge's
determination of the weight and credibility to be given to oral
testimony presented at a motion hearing. . . . We conduct an
independent review of the judge's application of constitutional
principles to the facts found." Commonwealth v. Hoose, 467
Mass. 395, 399-400 (2014), quoting from Commonwealth v. Contos,
435 Mass. 19, 32 (2001). The judge's resolution of conflicting
testimony "invariably will be accepted." Commonwealth v. Ortiz,
435 Mass. 569, 578 (2002).
Discussion. 1. The stop. To justify an investigatory
stop under the Fourth Amendment to the United States
Constitution or art. 14 of the Massachusetts Declaration of
Rights, "the police must have 'reasonable suspicion' that the
person has committed, is committing, or is about to commit a
crime. Reasonable suspicion must be 'based on specific,
articulable facts and reasonable inferences therefrom.'"
Commonwealth v. Costa, 448 Mass. 510, 514 (2007) (citations
omitted). See Terry v. Ohio, 392 U.S. 1, 21 (1968). A person
7
is seized when "in view of all of the circumstances surrounding
the incident, a reasonable person would have believed that he
was not free to leave." Commonwealth v. Isaiah I., 450 Mass.
818, 821 (2008). See United States v. Mendenhall, 446 U.S. 544,
554 (1980).
Officer Cazeau effectuated a stop of the defendant when he
ordered the defendant not to move his hands. See Isaiah I., 450
Mass. at 822 (suspect seized when officer ordered him not to
move). The defendant claims that Cazeau's order was not
supported by reasonable suspicion that the defendant had
committed, was committing, or was about to commit a crime.
Specifically, he argues that, because the testimony of Cazeau,
Stanford, and Green conflicted in several respects, the motion
judge left several facts material to this determination
unresolved. We disagree.
Although the testimony of Cazeau, Stanford, and Green
conflicted in some respects, their testimony did not differ on
the points material to the reasonable suspicion analysis, as the
motion judge aptly noted.6 Cazeau testified that he saw the
6
The defendant points to the following inconsistencies in
the testimony of Cazeau, Stanford, and Green, in arguing that
Cazeau's stop was not supported by reasonable suspicion: (1)
Cazeau testified that the defendant was already in his vehicle
when Cianci entered it, whereas Stanford testified that the
defendant and Cianci got into the defendant's vehicle together;
(2) Cazeau testified that he parked the cruiser behind the
defendant's vehicle, whereas Stanford testified that Cazeau
8
defendant with his pants down to his knees, underwear to the
side, and penis exposed. This observation gave Cazeau probable
cause to believe that the defendant was committing the crime of
indecent exposure, G. L. c. 272, § 53(a).7 See Commonwealth v.
Fitta, 391 Mass. 394, 396 (1984) (offense requires "an
intentional act of lewd exposure, offensive to one or more
persons" [citation omitted]).8 See also G. L. c. 272, § 54
(authority to arrest for offense). Officer Stanford's testimony
did not contradict this statement. Although Stanford did not
state that she also saw the defendant with his pants down and
his penis exposed, she was never directly asked whether she had.
parked the cruiser next to the vehicle; (3) Cazeau testified
that he issued the parking citation around 6:00 P.M., whereas
Stanford testified that she was the one who issued the parking
citation, at 6:25 P.M.; (4) Cazeau testified that he approached
the defendant's vehicle first, whereas Stanford testified that
they both approached the vehicle at the same time; and (5)
Stanford testified that she ordered the defendant out of the
vehicle, whereas Green testified that he ordered the defendant
out of the vehicle. Despite these apparent inconsistencies, the
motion judge found the testimony of Cazeau, Stanford, and Green
to be "truthful and reliable on the material points."
7
The defendant was also parked illegally, which further
justifies the stop. See G. L. c. 90C, § 2 (officer may approach
parked car committing traffic violation and issue ticket);
Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) (officer may
validly stop vehicle committing traffic violation); Commonwealth
v. Cruz, 459 Mass. 459, 465 (2011) ("It is uncontested that the
officers validly 'stopped' the car for parking in front of a
fire hydrant, a civil traffic violation").
8
At that particular time of day, the area of Tremont and
Stuart Streets in Boston had a high volume of pedestrian and
vehicular traffic.
9
The motion judge also found that Cazeau approached the
defendant's vehicle before Stanford, which might explain why he
saw the defendant with his pants down and his penis exposed, but
she did not. Thus, Cazeau's observation, properly credited by
the motion judge and uncontroverted by Stanford, established
reasonable suspicion to stop the defendant. The motion judge
therefore properly denied the defendant's motion to suppress
evidence related to the stop.
2. The search at the scene. Officer Cazeau's observation
of the defendant with his pants down and penis exposed also gave
Cazeau probable cause to arrest the defendant for indecent
exposure. "[P]robable cause exists where, at the moment of
arrest, the facts and circumstances within the knowledge of the
police are enough to warrant a prudent person in believing that
the individual arrested has committed or was committing an
offense." Commonwealth v. Kennedy, 426 Mass. 703, 708 (1998),
quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241
(1992). The fact that the defendant was not charged with
indecent exposure does not alter this conclusion, contrary to
the defendant's contentions. See, e.g., Commonwealth v. Lawton,
348 Mass. 129, 133 (1964) ("[i]f the facts known to the officer
reasonably permitted a conclusion that probable cause existed
10
for [one charge], the arrest should be treated as legal even
though he at first assigned another ground").9
Because the officers had probable cause to arrest the
defendant, the search for weapons constituted a valid search
incident to arrest. See G. L. c. 276, § 1; Chimel v.
California, 395 U.S. 752, 762-763 (1969). Once an arrest
occurs, "no additional justification is required for a search of
the person for weapons that otherwise might be used to resist
arrest or to escape, or to discover evidence of the crime for
which the arrest was made." Commonwealth v. Prophete, 443 Mass.
548, 552 (2005). Police may search "the arrestee's person and
the area 'within his immediate control.'" Chimel, supra at 763.
Such a search may precede formal arrest as long as probable
cause exists for the arrest and the arrest and the search are
"roughly contemporaneous." Commonwealth v. Washington, 449
Mass. 476, 481 (2007). Thus, the motion judge properly denied
the defendant's motion to suppress evidence related to the
search at the scene.
3. The nature of the police station search. In
determining the legality of the search at the police station, we
9
See also Barna v. Perth Amboy, 42 F.3d 809, 819 (3d Cir.
1994) ("Probable cause need only exist as to any offense that
could be charged under the circumstances" [emphasis supplied]);
Sennett v. United States, 667 F.3d 531, 537 (4th Cir. 2012)
("[T]he fact that a suspect is never charged with an offense
does not conclusively establish that officers did not have
probable cause to arrest for the offense").
11
must consider the differences between three types of searches:
strip searches, visual body cavity searches, and manual body
cavity searches. "[A] strip search generally refers to an
inspection of a naked individual, without any scrutiny of his
[or her] body cavities." Prophete, 443 Mass. at 556, quoting
from Commonwealth v. Thomas, 429 Mass. 403, 407 n.4 (1999). A
strip search also 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." Commonwealth v. Morales, 462 Mass. 334, 342 (2012).
A visual body cavity search involves "a visual inspection of the
anal and genital areas." Prophete, supra, quoting from Thomas,
supra. A manual body cavity search "involves some degree of
touching and probing of body cavities." Thomas, supra at 408.
To conduct a strip or a visual body cavity search, police
must have probable cause to believe that "they will find a
weapon, contraband, or the fruits or instrumentalities of
criminal activity that they could not reasonably expect to
discover without forcing the arrested person to discard all of
his or her clothing."10 Prophete, supra, quoting from
10
"This standard is more stringent than the standard for
such searches set forth under the Fourth Amendment to the United
States Constitution, which is reasonable suspicion. See Bell v.
12
Commonwealth v. Ramirez, 56 Mass. App. Ct. 317, 323 (2002).
"This is so because strip or visual body cavity searches, by
their very nature, are humiliating, demeaning, and terrifying
experiences that, without question, constitute a substantial
intrusion on one's personal privacy rights protected under the
Fourth Amendment and art. 14 [of the Massachusetts Declaration
of Rights]." Morales, 462 Mass. at 339-340, quoting from
Prophete, supra at 553.
Manual body cavity searches constitute an even greater
intrusion on a person's privacy rights and, as such, additional
protections are required. See Thomas, supra. Under Schmerber
v. California, 384 U.S. 757, 770 (1966), searches that intrude
into a person's body require a warrant unless exigent
circumstances exist. In Massachusetts, a judicially authorized
warrant based on "a strong showing of particularized need
supported by a high degree of probable cause" is required for a
manual body cavity search. Rodriques, 410 Mass. at 888.
The defendant claims that he was subjected to a warrantless
manual body cavity search when Officer Green observed and
removed the bag of drugs from the cleft of the defendant's
buttocks. The motion judge found, however, that the bag could
be observed and removed "[w]ithout manipulating the defendant's
Wolfish, 441 U.S. 520, 559 (1979)." Morales, 462 Mass. at 339
n.3.
13
body," and "without any touching or probing of [his] body
cavities." The judge also found that when Officer Green
"grabbed the bag and pulled it out from between the defendant's
buttocks," it "came out easily without any significant pulling
force."11 According to Green's testimony, credited by the motion
judge, the bag was in the "cleft" of the defendant's buttocks,
and not lodged in his rectum.12 We conclude that the search, on
11
The defendant does not challenge these findings as
clearly erroneous.
12
Officer Green testified as follows:
Counsel: "Did anything out of the ordinary happen while
you were patting [the defendant] down?" . . .
Green: "[W]hen I got to . . . his backside, I felt
something that was, it felt like it was situated like in the
. . . cleft of his buttocks." . . .
Counsel: "And did you eventually retrieve the item that
you had felt?"
Green: "Yeah, when we got his pants off you could see it
was visible in the, like I said, the cleft of his
buttocks." . . .
Counsel: "Did you have to enter any sort of body cavity in
order to retrieve th[e] item?"
Green: "No."
Counsel: "Was any portion of th[e] item within [the
defendant's] rectum or within any sort of orifice of his body?"
Green: "No." . . .
Counsel: "Did you have to use force to get the bag out of
any sort of body cavity or anything like that? Did you have to
manipulate any sort of orifices or cavities?"
14
these particular facts, is best characterized as a strip or
visual body cavity search, not a manual body cavity search, as
there was no touching or probing or otherwise opening or
manipulating of the defendant's anal cavity, and the bag of
drugs was easily removed without in any way endangering the
defendant's health or safety. See Thomas, 429 Mass. at 405,
407-408 (strip and visual body cavity searches, not manual body
cavity search, occurred where defendant was stripped and asked
to bend over, and drugs in plastic bag protruding from his
buttocks were removed without endangering his health or safety).
See also Prophete, 443 Mass. at 551, 555-557 (where defendant's
pants but not underwear were removed and drugs immediately fell
out from his buttocks, no strip search or visual or manual body
cavity search occurred); Morales, 462 Mass. at 338, 341
(officer's action of lifting back defendant's waistband to
retrieve bag of drugs from his buttocks, thus publicly exposing
his buttocks, constituted strip search). Contrast Commonwealth
v. Amado, 474 Mass. 147, 148 (2016) ("pulling the defendant's
clothing away from his body, shining a flashlight inside the
clothing, and removing an object from his buttocks" deemed
unlawful strip search because search occurred after police had
Green: "No."
15
dispelled safety concerns and no probable cause to believe
defendant concealing drugs).13
Because the search did not constitute a manual body cavity
search, the officers only needed probable cause to believe that
the defendant had concealed drugs in his buttocks area to
justify the search. See Prophete, 443 Mass. at 556. Probable
cause existed because (1) Officer Green felt an object in the
13
A review of cases from other jurisdictions reveals
conflicting interpretations of whether the removal of drugs from
a defendant's buttocks constitutes a visual or a manual body
cavity search, and whether a warrant is required for the removal
of the drugs. Compare Paulino v. State, 399 Md. 341, 352-354
(2007) (spreading of defendant's "butt cheeks" did not render
search manual body cavity search); United States v. Scott, 987
A.2d 1180, 1185 (D.C. App. Ct. 2010) (plastic bag protruding
from anal cavity; "where, as here, a lawful strip search reveals
evidence that can be removed from the outer surface of the
arrestee's body without posing any threat to the arrestee's
health or safety, the Fourth Amendment permits the police to
seize that evidence immediately, without interrupting the search
procedure to obtain a warrant"); McGee v. State, 105 S.W.3d 609,
613, 615 (Tex. Crim. App. 2003) (removal of drugs from anal
cavity "without digitally probing the anus" constituted visual
body cavity search); Craddock v. Commonwealth, 40 Va. App. 539,
550-551 (2003) (removal of drugs from resisting arrestee's anal
cavity did not constitute manual body cavity search when officer
did not have to pull bag out from buttocks), with People v.
Hall, 10 N.Y.3d 303, 311 (2008) (string hanging from defendant's
rectum connected to drugs; "[i]f an object is visually detected
. . . , Schmerber dictates that a warrant be obtained before
conducting a body cavity search unless an emergency situation
exists. . . . [T]he removal of an object protruding from a body
cavity, regardless of whether any insertion into the body cavity
is necessary, is subject to the Schmerber rule and cannot be
accomplished without a warrant unless exigent circumstances
reasonably prevent the police from seeking prior judicial
authorization"); Hughes v. Commonwealth, 31 Va. App. 447, 453
(2000) (removal of plastic bag containing cocaine protruding
"halfway" from anal cavity constituted manual body cavity
search).
16
cleft of the defendant's buttocks during the search, which Green
surmised from his thirty years of experience was drugs; (2) the
defendant tightened the muscles of his buttocks and pulled away
when Officer Green touched the object; (3) the defendant
resisted forcefully during the remainder of the search at the
scene; (4) the defendant attempted to reach the object in the
cruiser; (5) the defendant was with a known drug user,
recognized by all three officers, who had what they believed to
be a crack pipe on his person;14 (6) the defendant was in an area
known for illegal drug activity, where Officer Cazeau had made
numerous drug arrests in the past; and (7) a drug-sniffing dog
alerted in the defendant's vehicle.
4. The reasonableness of the police station search. Even
when probable cause exists to support a strip or a visual body
cavity search, the search must also "be reasonably conducted."
Morales, 462 Mass. at 342. Strip searches and visual body
cavity searches may be unconstitutional notwithstanding lawful
arrest "because they involve inspections of such a highly
personal nature, or are conducted in such a manner, as to
constitute an unreasonable intrusion on an individual's
privacy." Prophete, 443 Mass. at 554. "Courts must consider
the scope of the particular intrusion, the manner in which it is
14
Officer Cazeau told Officer Stanford about the crack pipe
that he recovered from Cianci.
17
conducted, . . . and the place in which it is conducted." Bell
v. Wolfish, 441 U.S. 520, 559 (1979). "How a search is
conducted is of the utmost importance, with the least amount of
intrusion constituting the better practice." Morales, supra at
343.
The defendant further argues that the search was
unreasonably conducted because the officers used force to
effectuate the search without a warrant, in violation of the
written policies of the Boston police department. Rule 318D of
the Boston police department rules and procedures provides, in
relevant part: "In no event shall force be applied to
accomplish a strip search and/or visual body cavity search
unless authorized by a warrant." A violation of a police
department's written policy, however, is not determinative in
the reasonableness of a search; it is only one factor in the
analysis.15 Id. at 343 n.9 ("While developing a written policy
concerning when and how to conduct a visual body cavity search
and a strip search may be helpful to police officers and may
15
One exception is in the context of inventory or
impoundment searches. See, e.g., United States v. Proctor, 489
F.3d 1348, 1356 (D.C. Cir. 2007) ("if a standard impoundment
procedure exists, a police officer's failure to adhere thereto
is unreasonable and violates the Fourth Amendment"). However,
the United States Supreme Court has specifically stated that
inventory searches must be conducted "according to standardized
criteria." Colorado v. Bertine, 479 U.S. 367, 387 (1987). No
similar rule exists in the context of strip searches or visual
body cavity searches.
18
serve to guard against unnecessary intrusions, compliance with
such a policy is not determinative on the issue of
reasonableness but, rather, serves only as one factor in the
equation").16 See Prophete, 443 Mass. at 557; Ramirez, 56 Mass.
App. Ct. at 319.17
In the present case, the other factors in the
reasonableness analysis outweigh the officers' failure to obtain
a warrant before using force to effectuate the strip and the
visual body cavity searches. First, as previously discussed,
there was a high level of probable cause that the defendant was
concealing drugs in his buttocks. See Morales, 462 Mass. at 342
n.8. Despite the obvious presence of the bag, however, the
16
Application of the exclusionary rule is generally
reserved for cases in which the conduct of the police was in
violation of a person's constitutional rights. See Whren v.
United States, 517 U.S. 806, 815 (1996) (Court declined to apply
exclusionary rule because police acted reasonably,
notwithstanding that stop violated police regulations). Cf.
Commonwealth v. Grimshaw, 413 Mass. 73, 77 (1992) ("Generally,
evidence seized in violation of the law will be suppressed only
if the violation is substantial or rises to the level of a
Federal or State constitutional violation").
17
See also Doe v. Burnham, 6 F.3d 476, 480 (7th Cir. 1993)
("[J]ust because Illinois chooses to regulate police behavior in
a certain way does not mean the police officers violate the
Constitution by transgressing those rules"); McCormick v.
Lawrence, 278 Kan. 797, 805 (2005) ("[A] strip search or body
cavity search could violate [Kansas statute] without being
unreasonable under the Fourth Amendment"); State v. Rainford, 86
Wash. App. 431, 434 (1997) (dry cell search did not comport with
prison regulations; failure to follow procedure not "per se
violation" of due process clause "or any other constitutional
provision").
19
defendant twice denied concealing anything in his buttocks. See
Amado, 474 Mass. at 156 ("[A] denial, especially an absurd one,
may heighten an officer's suspicion"). The defendant also made
continuous attempts to reach the bag and was found with a
handcuff key on his wristband, thereby revealing his intention
and determination to secure the drugs himself.
The search was also conducted in a manner designed to
preserve as much as possible the defendant's privacy and
dignity. Officer Green gave the defendant the opportunity to
remove the plastic bag himself, which would have avoided the
strip search. The search was conducted in a private holding
cell at the police station, with no other suspects in the cell.
See Morales, 462 Mass. at 342-343 ("a private room is
preferable"). The officers did not touch, probe, otherwise
open, or even peer into the defendant's body cavity. Initially,
there were only three officers involved in the search, and their
presence was likely necessary due to the defendant's previous
resistance to the search. See Thomas, 429 Mass. at 409 n.5
("[T]he searches should always be done where no one, other than
the investigating officer or officers, can see the person being
searched"). All of these officers were male -- the same gender
as the defendant. See Morales, supra at 343 ("Whether a person
of the same gender conducts the search should be given
consideration"). Additional officers only rushed into the cell
20
due to the defendant's continued resistance. The officers also
used no more force than necessary to safely obtain the drugs.
Officer Green merely "flicked" or "brushed" the drugs out of the
defendant's buttocks. The entire struggle only lasted "a minute
or two."
Although there were no exigent circumstances excusing the
failure to obtain a warrant, a warrant was not constitutionally
required. See Schmerber, 384 U.S. at 770; Prophete, 443 Mass.
at 556. Moreover, the use of force was not excessive to the
point of rendering the search unreasonable. See Commonwealth v.
Garner, 423 Mass. 735, 738 (1996) (execution of searches subject
to "general strictures against unreasonable searches");
Commonwealth v. Williams, 439 Mass. 678, 686 (2003) ("[L]aw
enforcement personnel are authorized to use reasonable force,
and no more, to execute warrants and carry out lawful orders").
See also Michenfelder v. Sumner, 860 F.2d 328, 336 (9th Cir.
1988) ("the legitimate penological purpose of strip searches --
to discover hidden weapons and contraband -- justifies using
force necessary to induce compliance by difficult inmates");
Craddock v. Commonwealth, 40 Va. App. 539, 550-551 (2003)
(removal of drugs from resisting arrestee's anal cavity --
without having to pull on bag -- did not render strip search
unreasonable). We therefore conclude that the manner of the
strip and the visual body cavity searches was reasonable. As
21
such, the motion judge properly denied the defendant's motion to
suppress evidence resulting from the police station search.
Judgment affirmed.