Citation Numbers: 462 Mass. 334
Judges: Cordy, Ireland
Filed Date: 5/29/2012
Status: Precedential
Modified Date: 6/25/2022
The Commonwealth appeals from an order entered in the Superior Court suppressing drugs seized from between the defendant’s buttocks pursuant to a search incident to his arrest following a lawful automobile stop. During the
1. Background. In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). “[Ojur duty is to make an independent determination of the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), quoting Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
We summarize the judge’s findings of fact, supplemented by uncontested testimony adduced at the evidentiary hearing. See Commonwealth v. Garcia, 443 Mass. 824, 828 (2005). See also Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) (we “supplement a judge’s finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness’s testimony”). In early November, 2009, Detective Daniel Desmarais, a trained narcotics officer with the special investigations unit of the Lowell police department, was in regular contact with a confidential informant (CI) whom he described as having been reliable in the past. The CI
At various times during early November, Detective Desma-rais observed the tan Explorer parked in the common parking lot of the apartment building at 189 Walker Street, and on one occasion saw the defendant enter the vehicle and leave. Detective Desmarais checked the registration plate of the Explorer and learned that it was registered to an individual (not the defendant) who resided at 189 Walker Street. Additionally, Detective Desmarais confirmed that the defendant’s driver’s license indicated 189 Walker Street as his residential address.
At about 1:20 p.m., on November 12, 2009, Detective Desma-rais, who was in plain clothes and driving an unmarked vehicle, saw the defendant drive by in the Explorer. He followed the defendant and then passed surveillance off to a Detective Lavoie, who simultaneously was conducting a drug investigation connected to the Fetherston Avenue location. Detective Lavoie reported to Detective Desmarais that the defendant had pulled into the driveway at 22 Fetherston Avenue and appeared to make a cellular telephone call while inside the vehicle. Minutes later a woman came out of the residence and went over to the Explorer. After a brief conversation, the two went inside. About four to six minutes later, the defendant emerged from the residence and departed in the Explorer.
Detective Desmarais followed the defendant back to 189 Walker Street. Another police cruiser, driven by Lieutenant James Hodgdon, pulled into the lot. As the officers got out of their vehicles, the defendant looked at them and then drove
Officer Stephen Beland, who was patrolling nearby in a marked police cruiser, heard the dispatch with a description of the Explorer. He spotted the Explorer, activated his blue lights, and pulled the vehicle over in the vicinity of 189 Walker Street. As he did so, he observed that the defendant was leaning to his right.
As Officer Beland got out of his cruiser, he saw the defendant reach down toward the center console. The defendant was leaning to the right, placing his hands behind and underneath his torso, and sitting up and down, and seemed to be concealing something behind the right side of his torso.
Officer Beland approached the Explorer with his firearm drawn and ordered the defendant to show his hands. The defendant did not comply and kept his hands tucked underneath and behind him. Officer Beland ordered the defendant to place his hands on the steering wheel. Meanwhile, Detective Desmarais had arrived, and also directed the defendant to show his hands. Eventually the defendant complied and the officers ordered him to get out of the vehicle.
Detective Desmarais led the defendant toward the rear of the vehicle. Officer Beland indicated that the defendant may have been hiding something in the vehicle and proceeded to search the area of the vehicle over which the defendant had had immediate control. He informed Detective Desmarais that he did not find any contraband.
During the subsequent pat-down of the defendant, who was wearing shorts, the defendant moved away and clenched his buttocks when Detective Desmarais reached the area of the rear waistband of his shorts. This observation, coupled with the information shared by Officer Beland, raised the suspicion that the defendant was concealing drugs. Proceeding with the pat-down, Detective Desmarais did an exterior sweep outside of the defendant’s shorts and felt a lump between his buttocks that did not appear to be a weapon.
Detective Desmarais walked the defendant to a more secluded
While in handcuffs and lying face down on the sidewalk, the defendant tried to reach down into his shorts. In response, Detective Desmarais grabbed the defendant’s hand and removed it. He then pulled back the waistband to the defendant’s shorts, exposing his buttocks to public view in so doing, and retrieved the bag from between the defendant’s buttocks. After the drugs were seized, the defendant’s father approached the scene and observed his son lying face down on the sidewalk with his buttocks exposed.
The defendant was indicted on charges of possession of a class A controlled substance (heroin) with intent to distribute, as a subsequent offense, G. L. c. 94C, § 32 (a) and (6); being a habitual offender, G. L. c. 279, § 25; assault and battery on a police officer (Detective Desmarais), G. L. c. 265, § 13D; and resisting arrest, G. L. c. 268, § 32B. He moved to suppress the drugs seized from him, claiming, as relevant here, that the drugs were obtained as the result of an unlawful search in violation of the Fourth and Fourteenth Amendments to the United States Constitution, arts. 12 and 14 of the Massachusetts Declaration of Rights, and G. L. c. 276, § l.
2. Discussion. We assume, without deciding, that the officers had probable cause to arrest the defendant for possession of drugs and that they therefore were justified, as a matter of constitutional and statutory law, in conducting a search of the defendant’s person for concealed drugs incident to that arrest. See Commonwealth v. Prophete, 443 Mass. 548, 552 (2005), and cases cited (once custodial arrest occurs no further justification needed for search of person to discover evidence of crime for which person was arrested). Searches incident to an arrest, however, “may be unconstitutional notwithstanding the 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.” Id. at 554. 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.”
Notwithstanding the judge’s conclusion that Detective Des-marais had “sufficient probable cause to believe that the defendant was concealing drugs in his buttocks to justify a strip or visual body cavity search,” the Commonwealth argues that Detective Desmarais’s separate actions of lifting back the defendant’s waistband visually to inspect the defendant’s buttocks and later to retrieve the drugs, contrary to the judge’s determinations, did not amount to strip searches. We have noted that “[a] visual body cavity search extends to a visual inspection of the anal and genital areas.” Commonwealth v. Thomas, supra at 407 n.4, citing Cookish v. Powell, 945 F.2d 441, 444-445 n.5 (1st Cir. 1991). In Commonwealth v. Prophete, supra at 557, we adopted a definition of the term “strip search” to mean a search “in which a detainee is commanded to remove the last layer of his or her clothing.” We concluded in that case that a strip search had not occurred because, although the defendant had been ordered to remove his shirt, shoes, socks, and pants, he was never instructed or required to remove his underwear, which constituted the last layer of his clothing.
Recently, the United States Supreme Court confronted the question “whether the Fourth Amendment requires correctional officials to exempt some detainees [who have committed minor offenses] who will be admitted to a jail’s general population” from “a close visual inspection while undressed.”
“[A strip search] may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position. . . . [T]he term does not [necessarily] include any touching of unclothed area by the inspecting officer.”
Id.
Insofar as relevant here, Detective Desmarais’s action of lifting back the defendant’s waistband to retrieve the drugs from between his buttocks and publicly exposing the defendant’s buttocks while so doing, constituted a strip search under both our State Constitution and the Federal Constitution.
The Commonwealth argues that our decision in Commonwealth
We next examine the manner in which this search of the defendant was conducted. For a visual body cavity search and a strip search to be constitutional under the Fourth Amendment and art. 14, such searches also must be reasonably conducted. See Commonwealth v. Thomas, supra at 407, citing Bell v. Wolfish, 441 U.S. 520, 559 (1979). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, . . . and the place in which it is conducted.”
Here, with regard to the strip search, at the time when Detective Desmarais removed the drugs from between the defendant’s buttocks area, the police did not, as we suggested in Commonwealth v. Thomas, supra at 409 n.5, conduct the search in a private room or in any private location. The handcuffed defendant was face down on a public sidewalk and surrounded by four police officers. Detective Desmarais had determined that the lump in the rear of the defendant’s shorts was not a weapon. Thus, there was no concern that the defendant could have used
The manner in which the search proceeded, whereby the defendant’s buttocks were publicly exposed in the absence of exigent circumstances, was unreasonable. See Paulino v. State, 399 Md. 341, 359 (2007) (instead of reaching into defendant’s underwear to retrieve contraband, officer lifted up defendant’s underwear and publicly exposed his buttocks, which rendered search unreasonable). There was no explanation in the record why Detective Desmuráis was able to inspect the defendant’s buttocks area for drugs without public exposure, but was unable to retrieve the drugs without the resulting exposure. If Detective Desmuráis could not have retrieved the drugs without exposing the defendant’s buttocks, he should not have conducted the search on a public sidewalk. Both the inappropriate location of the search and the manner in which it was conducted rendered the strip search constitutionally unreasonable under both the Federal and State Constitutions.
3. Conclusion. We affirm the order allowing the motion to suppress.
So ordered.
General Laws c. 276, § 1, provides in relevant part:
“A search conducted incident to an arrest may be made only for the*339 purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape. Property seized as a result of a search in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings.” (Emphasis added.)
The defendant does not challenge the judge’s conclusions that the stop and initial pat-down of the defendant were justified.
For “strip and visual body cavity searches” to be permissible under our State Constitution, we require a probable cause standard. See Commonwealth v. Thomas, 429 Mass. 403, 408 (1999). 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. Wolfish, 441 U.S. 520, 559 (1979).
There is another type of intrusive search, a “manual body cavity search, which involves some degree of touching and probing of body cavities.” Commonwealth v. Thomas, supra, citing Rodrigues v. Furtado, 410 Mass. 878, 888 (1991). With respect to manual body cavity searches, there must be “a strong showing of particularized need supported by a high degree of probable cause,” before such a search may occur. Rodrigues v. Furtado, supra.
Specifically, the petitioner in Florence v. Chosen Freeholders of the County of Burlington, 132 S. Ct. 1510, 1514 (2012), after being transferred to a county jail, was instructed, along with other detainees, to remove his clothing. Thereafter, a correction officer looked for body markings, wounds, and contraband. Id. The officer also, without touching the petitioner and other
As noted by Justice Alito in his concurring opinion, the Court did “not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.” Florence v. Chosen Freeholders of the County of Burlington, supra at 1524 (Alito, J., concurring).
We leave for another day whether Detective Desmarais’s initial action of lifting back the defendant’s waistband visually to inspect the defendant’s buttocks amounted to a strip search under our State and Federal Constitutions.
The justification for initiating a search is also a factor in determining reasonableness, see Bell v. Wolfish, 441 U.S. 520, 559 (1979), but we have assumed, without deciding, that probable cause existed for the searches that took place in this case.
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 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.
The Commonwealth contends that the location of the search was appropriate in view of the combative actions of the defendant, but those actions preceded his arrest and the retrieval of the drugs. This was not a situation whereby the defendant’s buttocks were exposed because of his own actions.
In view of our conclusion, we need not address the defendant’s remaining arguments.