Commonwealth v. Jeannis

482 Mass. 355

122 N.E.3d 496

COMMONWEALTH

v.Stanley JEANNIS.

SJC-12630

Supreme Judicial Court of Massachusetts, Suffolk..

February 5, 2019

May 24, 2019

Ian MacLean, Assistant District Attorney, for the Commonwealth.

Jane Larmon White for the defendant.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GANTS, C.J.

During 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, 575 N.E.2d 1124 (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.

Background. We 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, 35 N.E.3d 357 (2015).

On 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 assistance.

Callahan 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.

Once 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 hiding a weapon, the officers handcuffed one of the defendant's arms, and Singer restrained the other arm.

The defendant pulled down the waistband of his underwear and told the officers, in substance, "See, I don't have anything." But when he did so, Singer noticed a plastic bag protruding from the defendant's buttocks. He asked the defendant to remove the bag and the defendant stated, "I will get it for you if you don't charge me." Singer then ordered the defendant to remove the bag, and told the defendant that he would remove it himself if the defendant refused to do so. The defendant complied and, with Singer's hand on top of the defendant's hand, the defendant pulled down his underwear and removed the bag from his buttocks area. It contained fifteen individually wrapped bags of cocaine and thirteen individually wrapped bags of heroin.

After a grand jury indicted the defendant on charges of possession of cocaine and heroin with intent to distribute, as subsequent offenses, the defendant moved to suppress the drugs that were found in the plastic bag that was removed during the strip search. Following an evidentiary hearing, a Superior Court judge denied the motion. The judge concluded that there was probable cause to believe that the defendant was attempting to conceal contraband "in a private area of his body," so a strip search was "proper." The judge also concluded that "[t]he strip search did not cross over to a cavity search," noting that the defendant removed the bag himself after Singer ordered him to do so. A Superior Court jury convicted the defendant on the lesser included counts of simple possession of both cocaine and heroin. The defendant timely appealed, challenging the lawfulness of the search.

The Appeals Court concluded that the defendant's motion to suppress should have been allowed, and vacated the defendant's convictions. Commonwealth v. Jeannis, 93 Mass.App.Ct. 856, 862-863, 110 N.E.3d 1211 (2018). The court determined that the Commonwealth failed to meet its "burden to provide evidence from which the judge could find that no portion of the bag was within the defendant's rectum." Id. at 859, 110 N.E.3d 1211. Because the item was presumptively "seiz[ed] from within a body cavity," id. at 861, 110 N.E.3d 1211, the court concluded that the heightened constitutional requirements to perform a manual body cavity search must apply in these circumstances.

Although the court concluded that "there was heightened probable cause to believe that the bag protruding from the defendant's rectum contained contraband," it nonetheless held that the drugs found in the bag should have been suppressed because the bag "was seized without a judicial warrant in circumstances that do not justify failure to obtain one." Id. at 862, 110 N.E.3d 1211. We granted the Commonwealth's application for further appellate review.

Discussion. We credit the motion judge's subsidiary findings of fact, but we review de novo his legal conclusion that the strip search of the defendant did not cross the line into a manual body cavity search. See Commonwealth v. Thomas, 429 Mass. 403, 405, 708 N.E.2d 669 (1999). See also Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004) (appellate courts "independently determine the correctness of the [motion] judge's application of constitutional principles to the facts as found"). To conduct that analysis, we must first review the constitutional principles that apply to strip searches, visual body cavity searches, and manual body cavity searches.

1. Strip searches, visual body cavity searches, and manual body cavity searches. A strip search occurs when "the last layer of clothing of a detainee [is] removed," or "when a detainee remains partially clothed, but ... a last layer of clothing is moved (and not necessarily removed) in such a manner whereby an intimate area of the detainee is viewed, exposed, or displayed." Commonwealth v. Morales, 462 Mass. 334, 342, 968 N.E.2d 403 (2012). A visual body cavity search occurs when a strip search "extends to a visual inspection of the anal and genital areas." Thomas, 429 Mass. at 407 n.4, 708 N.E.2d 669.

"[S]trip or visual body cavity searches, by their very nature, are humiliating, demeaning, and terrifying experiences that, without question, constitute a substantial intrusion on one's personal privacy rights protected under the Fourth Amendment and art. 14." Commonwealth v. Prophete, 443 Mass. 548, 553, 823 N.E.2d 343 (2005), citing Thomas, 429 Mass. at 408-409 & n.5, 708 N.E.2d 669. Yet we recognize "that such searches are, in some cases, necessary to serve legitimate ends of law enforcement." Prophete, supra.

The same constitutional standards apply to both strip searches and visual body cavity searches. Thomas, 429 Mass. at 408, 708 N.E.2d 669. We permit law enforcement officers to conduct such intrusive searches only where they have probable cause to believe that the defendant had concealed drugs, a weapon, contraband, or evidence of a crime on his or her person or clothing in a place where it would not be discovered by a traditional search of the person -- that is, in a place where the police reasonably could not expect to discover it without exposing or inspecting an intimate area of the defendant's body. See Morales, 462 Mass. at 339, 968 N.E.2d 403, quoting Prophete, 443 Mass. at 554, 823 N.E.2d 343 ("A search of a defendant ‘lawfully could progressively extend into a strip [or a visual body cavity] search only if such a search was justified by probable cause to believe that the defendant had concealed [drugs] on his person or his clothing that would not otherwise be discovered by the usual search incident to arrest’ "). See also Commonwealth v. Agogo, 481 Mass. 633, 637, 119 N.E.3d 251 (2019).

We also require that such a search be "reasonably conducted," considering the need for the search, the manner and place in which it is conducted, and the scope of the intrusion. Morales, 462 Mass. at 342, 968 N.E.2d 403. See Agogo, 481 Mass. at 638, 119 N.E.3d 251. "At all times the potential harm to a detainee's health and dignity should...