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Commonwealth v. Amado

Supreme Judicial Court of Massachusetts

April 19, 2016

Aderito P. Amado

         Argued December 8, 2015.

          Plymouth. 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.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


          [48 N.E.3d 417] Hines, J.

          After a jury trial, the defendant, Aderito Amado, was convicted of trafficking in fourteen grams or more of 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 The Appeals Court affirmed the conviction in an unpublished memorandum and order issued pursuant to its rule 1:28.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

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search and, if so, whether it satisfied the probable cause requirement articulated in Commonwealth v. Morales, 462 Mass. 334, 342, 968 N.E.2d 403 (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.

         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 light 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.

          [48 N.E.3d 418] One of the police officers requested a driver's license and registration from the operator of the automobile; another illumi-

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nated 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.

         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

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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, 557, 823 N.E.2d 343 (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 [48 N.E.3d 419] 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.

         b. Discussion.

         As an initial matter, we agree that the defendant failed to assert specific challenges to the validity of the exit order and the scope of the patfrisk in the Appeals Court. Nonetheless, we address the issues, based on 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, 318 N.E.2d 895 (1974), quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (" search must be 'strictly tied to and justified by the circumstances which rendered its initiation permissible'" ). Second, even where an issue was not raised at the trial court level, we have exercised our discretion to review for error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Arzola, 470 Mass. 809, 814, 26 N.E.3d 185 (2015), cert. denied, 136 S.Ct. 792, 193 L.Ed.2d 709 (2016). Thus, we now review both claims as a necessary

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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 at the motion hearing" (citation omitted). Commonwealth v. Wilson, 441 Mass. 390, 393, 805 N.E.2d 968 (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, 649 N.E.2d 717 (1995), quoting Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (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, 945 N.E.2d 899 (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, ...

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