Heard: February 5, 2019.
Substances. Practice, Criminal, Motion to suppress. Search
and Seizure, Probable cause, Bodily intrusion, Body
examination. Constitutional Law, Search and seizure, Probable
cause. Probable Cause.
found and returned in the Superior Court Department on June
11, 2015. A pretrial motion to suppress evidence was heard by
Robert N. Tochka, J., and the cases were tried before Raffi
N. Yessayan, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
MacLean, Assistant District Attorney, for the Commonwealth.
Larmon White for the defendant.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
a lawful strip search of the defendant following his arrest,
police officers observed a plastic bag protruding from the
cleft between his buttocks and caused him to remove it; it
was revealed to contain individually wrapped plastic bags of
both heroin and cocaine. The issue presented in this case is
whether the removal of the plastic bag was within the scope
of the strip search, which requires only probable cause, or
whether the officers conducted a manual body cavity search of
the defendant's rectum, which requires the issuance by a
judge of a search warrant based on "a strong showing of
particularized need supported by a high degree of probable
cause." Rodriques v. Furtado, 410 Mass. 878,
888 (1991) . We conclude that, under the circumstances here,
the removal of the plastic bag was within the scope of the
strip search and that the actions taken by the police were
reasonable within the bounds of the Fourth Amendment to the
United States Constitution and art. 14 of the Massachusetts
Declaration of Rights. We therefore affirm the denial of the
defendant's motion to suppress the drug evidence. We also
affirm his convictions.
summarize the facts as found by the judge who heard the
defendant's motion to suppress, supplemented by
uncontradicted witness testimony that the judge implicitly
credited. See Commonwealth v. Jones-Pannell, 472
Mass. 429, 431 (2015) .
April 7, 2015, members of a Federal Bureau of Investigation
task force arrested the defendant in a hotel room in Revere
on outstanding warrants. After the defendant was arrested,
Lieutenant David Callahan of the Revere police department
arrived at the hotel and brought the defendant to the Revere
police station for booking. At the station, the defendant
complained to Callahan that he had swallowed
"fifties," which Callahan understood to mean small
bags worth approximately fifty dollars of heroin or cocaine,
and that he did not feel well. Callahan did not believe that
the defendant was under the influence of narcotics and
thought that he was feigning illness, but nonetheless
followed established protocol and requested medical
observed the defendant as he sat on a bench during the
booking procedure, and noticed that the defendant "sat
oddly, leaning to one side." When the defendant told
Callahan he might vomit, Callahan, accompanied by Revere
police Officer Joseph Singer, escorted the defendant to a
nearby cell with a sink and toilet, which was out of sight
from other prisoners and not clearly visible to booking
officers. As the defendant --who was approximately six feet,
two inches tall and weighed approximately 275 pounds at the
time of the arrest -- walked to the holding cell, Callahan
observed that he was not walking normally. Even though the
defendant was not restrained in shackles or handcuffs, his
movement was slow, rigid, and tense. Callahan saw the
defendant "clenching his buttocks area," and
believed that the defendant might have "something
secreted in his lower half, " which Callahan recognized
could pose a safety risk to the defendant, the police
officers, and other prisoners.
inside the holding cell, Callahan ordered the defendant to
remove his clothing. The defendant removed his shirt, pants,
and socks, but became argumentative when he was asked to
remove his underwear. While still wearing his underwear, he
continued to clench his buttocks area and attempted to shield
his backside from the view of Callahan and Singer. Concerned
that he was taking a "fighting stance" or possibly