NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

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Commonwealth v. Morales,

462 Mass. 334 (2012)

CONTRIBUTING EDITOR: MATTHEW GRAZIO

I. Procedural History

A grand jury indicted the defendant, Carlos Morales, on charges of possession of a class A controlled substance with intent to distribute, being a habitual offender, assault and battery on a police officer, and resisting ar-

rest. Prior to trial, Defendant filed a motion to suppress the drugs seized from his person. After an evidentiary hearing, a Superior Court Judge granted Defendant’s motion. A single Justice of the Supreme Judicial Court (“SJC”) granted the Commonwealth leave to file an interlocutory appeal. The appeal was then transferred to the SJCand the suppression order was affirmed.

II. Facts

In early November 2009, Detective Daniel Desmarais was in contact with a confidential informant (“CI”) who informed Desmarias that De-fendant was selling heroin out of his tan Ford Explorer, and that the CI had

purchased heroin from Defendant several times during the previous month.1 The CI had previous dealings with Desmarias and had demon-strated reliability in the past.2 Desmarias learned from the CI that Defend-ant was buying his drugs from an unknown individual who resided at 22 Fetherston Avenue in Lowell.3

Desmarias continued his investigation and throughout early Novem-

ber was able to corroborate the information he obtained from the CI.4 On November 12, 2009, Desmarias followed Defendant in an unmarked police cruiser with Detective Lavoie following in his own police car.5 After ob-

1 Commonwealth v. Morales, 462 Mass. 334, 335-336 (2012). 2 Id. 3 Id. at 336. 4 Id. 5 Id.

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serving defendant drive to 22 Fetherston Avenue—the alleged drug sup-plier’s home—and seeing him briefly enter the house, the Detectives fol-lowed Defendant to his residence.6 Defendant then recognized the police officers and sped away in his vehicle—subsequently committing various

traffic infractions.7

A patrol officer in the vicinity saw the car and pulled Defendant over.8 The officer observed Defendant, while in his vehicle, leaning to the right and moving his hands behind his torso—presumably concealing some-

thing between his torso and clothing.9 Defendant was then taken from the car, with the help of Desmarias who had arrived on scene, and given a pat-down of his outer clothing.10 During this pat-down Desmarias felt a lump between Defendant’s buttocks.11 This raised suspicion that Defendant was concealing drugs and Desmarias took Defendant to a more secluded area by a nearby house.12 Desmarias pulled back Defendant’s shorts and ob-

served a clear plastic bag containing a tan powder wedged between de-fendant’s buttocks.13 Defendant turned to run, a struggle ensued, and even-tually Defendant was subdued and handcuffed on the sidewalk.14 Defendant reached his hand down his shorts and, in response, Desmarias pulled back Defendant’s shorts, exposing his buttocks to public view, and retrieved the bag.15 Defendant’s father then arrived and saw his son lying

face down on the sidewalk with his buttocks exposed.16

III. Issues Presented17

1. Was the defendant “strip searched” within the meaning of the Fed-eral and State Constitutions?

2. Did the manner in which this search occurred contravene the rea-sonableness requirement imposed by the Fourth Amendment to the Feder-al Constitution and Article 14 of the Massachusetts Declaration of Rights?

6 Id. 7 Commonwealth v. Morales, supra at 336-337. 8 Id. at 337. 9 Id. 10 Id. 11 Id. 12 Id. 13 Commonwealth v. Morales, supra at 338. 14 Id. 15 Id. 16 Id. 17 The SJC did not consider whether there was sufficient probable cause to arrest the de-

fendant for possession of drugs and therefore assumed that the officers were justified in con-

ducting a search of defendant’s person incident to that arrest. Id. at 339.

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IV. Holdings and Reasoning

1. The Commonwealth argued that Desmarias’s actions did not consti-tute a strip search and therefore his actions were permissible because the search was conducted incident to the defendant’s arrest.18 The SJC reaf-firmed their definition of a strip search announced in Commonwealth v. Prophete: a strip search occurs where the “detainee is commanded to re-

move the last layer of his or her clothing.”19 The SJC also took guidance from the U.S. Supreme Court which recently noted that a strip search can occur in a variety of circumstances including, but not limited to, a visual inspection of a de-clothed detainee.20 A strip search need not include the “touching of unclothed areas by the inspecting officer.”21 A defendant need not be completely naked, as the Commonwealth contends, to achieve the

status of a strip search.22 Viewing this case in light of these definitions, the SJC held that Desmarias’s action of lifting Defendant’s shorts and publical-ly exposing his buttocks was a strip search.23

2. Because all searches must be conducted in a reasonable manner, the

SJC next determined when and in what circumstances a strip search is rea-sonable.24 The SJC looked to cases construing the reasonableness of strip searches and described factors to be considered. These factors include: (1) whether the search was conducted in a private room; (2) whether there were exigent circumstances justifying and obviating the need for privacy; (3) whether the officers physically touched the detainee or conducted a

visual strip search—the latter tending to aid in establishing reasonableness; (4) whether the officer conducting the search is of the same gender; and (5) an overarching concern to protect the health and dignity of the detainee. Each case should be considered on its specific facts and circumstances, but the above factors “should be considered in determining the reasonableness of a visual body cavity or strip search” under the Fourth Amendment and

Article 14.25

In this case there were no exigent circumstances justifying the search.

18 Id. at 340. 19 Commonwealth v. Morales, supra at 340, quoting Commonwealth v. Prophete, supra at

557. 20 Id. at 340-341, citing Florence v. Chosen Freeholders of the County of Burlington, 132 S.

Ct. 1510, 1513, 1515 (2012). 21 Id. at 341, citing Florence v. Chosen Freeholders of the County of Burlington, supra at

1515. 22 Id. at 341-342. 23 Id. 24 The traditional reasonableness inquiry includes the scope of the intrusion, the manner in

which the search is conducted, and the place where the search takes place. Bell v. Wolfish, 441

U.S. 520, 559 (1979). 25 Commonwealth v. Morales, supra at 343.

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Defendant did not have a weapon, was handcuffed on the ground, sur-rounded by officers so that he could not flee, and could not have destroyed evidence. Absent exigent circumstances Defendant should have been taken to a private room to avoid the humiliation of the public exposure of his

buttocks.26 In the circumstances the location of this search was unreasona-ble.27

26 Id. at 343-344. 27 Id. at 344.