Heard: September 7, 2016.
found and returned in the Superior Court Department on June
pretrial motion to suppress evidence was heard by Charles J.
Hely, J., and the cases were tried before Judith Fabricant,
Genevieve K. Henrique for the defendant.
Nicholas Brandt, Assistant District Attorney, for the
Present: Kafker, C.J., Milkey, & Blake, JJ.
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 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. 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) 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.
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
£.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.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
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 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.
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 scene and the dog
alerted to the presence of drugs in the defendant's
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. 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 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.
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) .
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 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).
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 ...