December 8, 2015.
Plymouth. Indictment found and returned in the Superior Court
Department on July 18, 2011.
pretrial motion to suppress evidence was heard by Frank
M. Gaziano, J., and the case was tried before Merita
A. Hopkins, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
E. Taylor for the defendant.
E. Lee, Assistant District Attorney, for the Commonwealth.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
N.E.3d 417] Hines, J.
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Appeals Court affirmed the conviction in an unpublished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
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.
Motion to suppress.
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. 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.
N.E.3d 418] One of the police officers requested a
driver's license and registration from the operator of
the automobile; another illumi-
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. 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.
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 "
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, 557, 823
N.E.2d 343 (2005). 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
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.
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
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
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, ...