Heard: January 11, 2018.
found and returned in the Superior Court Department on June
pretrial motion to suppress evidence was heard by Robert N.
Tochka, J., and the cases were tried before Raffi N.
Larmon White for the defendant.
MacLean, Assistant District Attorney, for the Commonwealth.
Present: Rubin, Sacks, & Wendlandt, JJ.
defendant was convicted of possession of a class A substance
(heroin) and possession of a class B substance (cocaine), and
he now appeals. The issue he raises involves application of
the rule announced in Rodriques v.
Furtado, 410 Mass. 878, 888 (1991)
(Furtado), allowing the manual search of a body
cavity only with a warrant "issued by the authority of a
judge, on a strong showing of particularized need supported
by a high degree of probable cause," to a circumstance
where police seek to remove an item partially protruding from
an arrestee's rectum.
hearing on the defendant's motion to suppress, the motion
judge found the following facts. At the police station after
his arrest, the defendant complained that he did not feel
well because he had swallowed "fifties." Lieutenant
David Callahan of the Revere police department, to whom he
complained, understood "fifties" to refer to fifty
dollar bags of heroin or cocaine. Callahan did not believe
him because the defendant was not exhibiting signs of a drug
overdose, and Callahan thought that the defendant was
feigning illness. Nevertheless, Callahan followed protocol
and summoned medical assistance.
defendant sat on a bench during the booking process. Callahan
saw that he sat oddly, leaning to one side. The defendant
told Callahan that he might throw up, so Callahan brought him
into a nearby cell that had a sink and toilet.
noticed that the defendant had an unusual gait as he walked
to the cell, and that he was not walking
"normally." The defendant moved slowly, was rigid
and tense, and was "clenching his buttocks area."
Callahan believed that he might have something secreted in
that area, which could be a potential safety risk.
asked Officer Joseph Singer to accompany the defendant and
Callahan to the eight foot by eight foot cell. Callahan
ordered the defendant to remove his clothing. Reluctantly,
the defendant removed his shirt, pants, and socks. He became
argumentative when asked to remove his underpants.
noticed that the defendant, while wearing only underwear,
continued to clench his buttocks and attempted to shield his
backside from Callahan's and Singer's view. Singer
concluded that the defendant was taking a fighting stance.
Callahan became concerned that the defendant might be hiding
a weapon. ...