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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Thomas, WL 279004 (1996)
Supreme Judicial Court of Massachusetts,
Argued
Decided
Murray A. Kohn,
Jane A. Sullivan, Assistant District Attorney, for
the Commonwealth.
Present:
WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED,
ABRAMS, J.
A jury
convicted the defendant, Sean Thomas, of unlawful distribution of cocaine, G.L. c. 94C, § 32A (c
); unlawful distribution of cocaine
within 1,000 feet of a school zone, G.L. c. 94C, §
32J; unlawful possession of cocaine with
intent to distribute, G.L. c. 94C, § 32A (c );
and unlawful possession of cocaine with intent to distribute within
1,000 feet of [429 Mass. 404] a school zone, G.L.
c. 94C, § 32J. (FN1) Prior to trial, the defendant moved on two
separate grounds to suppress money and cocaine seized from him. The correctness of a Superior Court judge's
denial of that motion is the only issue on appeal. We transferred the case to this court on our
own motion. We affirm.
We recite
the facts found by the motion judge. On
the evening of
When the
other officers reported that they were in place, the officer returned to the street
where he had seen the woman and stopped as she approached the vehicle. The woman asked him if he was "looking
for something." The officer
responded in the affirmative. She then
asked him how many he wanted, and the officer said "a couple." The woman told him to wait, and she walked
away from the rear of the officer's vehicle, which was parked on the side of
the street. The woman crossed the street
and met briefly with a black male, later identified as the defendant. The officer observed the woman and the
defendant gesture to one another, then the woman put her hand to her mouth as
she walked back toward him.
When the
woman returned to the officer's vehicle, he indicated that he wanted two, at
which point she opened her mouth and removed two small plastic bags. The officer told her that "they were too
small" so he would purchase only one.
He gave her two marked five dollar bills, and she handed to him a
plastic bag that appeared to contain crack cocaine. The woman then walked away from the vehicle
toward the defendant. As the officer
drove off, he radioed to the other officers that the transaction was
complete. He told them they should
observe the defendant and the woman and retrieve the money.
One of the
assisting officers saw the defendant and the woman standing on the steps of a
building. He approached them to [429 Mass. 405] conduct a "field interrogation observation." The
officer asked the defendant for his name and address. The officer then asked whether the defendant
had any money on him. The defendant
produced the two marked bills from his pocket.
The officer placed the defendant under arrest.
The
defendant was taken to a police station and booked. Immediately after booking, officers escorted
the defendant to a corridor in the cellblock area to search him for weapons and
contraband. (FN2) As the defendant removed his pants and
underpants, he reached behind his back and retrieved a plastic bag that
appeared to contain crack cocaine. The
officer then ordered the defendant to turn around and bend over. As the defendant did so, another plastic bag
fell to the floor. The officer observed
yet another plastic bag in the area between the defendant's buttocks and
removed the bag.
In his
motion to suppress, the defendant argued that the money was seized pursuant to
an illegal stop. He further argued that
the cocaine was seized as the fruit of his unlawful arrest and also as a result
of an illegal strip search. The motion
judge denied the motion, reasoning that the officer's questioning of the
defendant did not constitute a seizure, and that the strip search did not
violate due process. Applying a probable
cause standard, the motion judge also affirmed the validity of the visual body
cavity search.
[1] The
motion judge's findings of fact are binding in the absence of clear error. We view with respect the motion judge's
conclusions of law, but, as this matter is of a constitutional dimension, the
judge's ultimate findings and rulings of law are subject to de novo review.
Commonwealth v. Alvarado, 420 Mass. 542, 544, 651 N.E.2d 824 (1995).
1. Seizure of the defendant. The defendant contends that the police did not
have a reasonable and articulable suspicion that he
was engaged in criminal activity when they stopped him. See
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968); Commonwealth v. Lyons, 409 Mass. 16, 19,
564 N.E.2d 390 (1990); Commonwealth v. Silva, 366 Mass. 402,
405, 318 N.E.2d 895 (1974). The
defendant acknowledges, however, that he cannot test the reasonableness of the
stop unless he first shows that he was seized within the meaning of the Fourth
Amendment to the United States Constitution or art. 14 of the Massachusetts[429 Mass. 406] Declaration of
Rights. If there was no seizure, the
officer's questioning of the defendant did not violate the defendant's
constitutional rights. Commonwealth v. Sanchez, 403 Mass. 640,
643, 531 N.E.2d 1256 (1988). We conclude
that
there was no seizure. (FN3)
[2][3]
"[A] person has been 'seized' ... if, 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. Borges, 395 Mass. 788,
791, 482 N.E.2d 314 (1985), quoting
United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.
1870, 64 L.Ed.2d 497 (1980). See Commonwealth v. Stoute,
422 Mass. 782, 786, 665 N.E.2d 93 (1996); Commonwealth v. Thinh
Van Cao, 419 Mass. 383, 387, 644 N.E.2d 1294,
cert. denied, 515 U.S. 1146, 115 S.Ct. 2588, 132
L.Ed.2d 836 (1995); Commonwealth v. Fraser, 410 Mass. 541,
543, 573 N.E.2d 979 (1991). "[N]ot every encounter between a law enforcement official and a
member of the public constitutes an intrusion of constitutional dimensions
requiring justification...." Stoute, supra
at 789, 665 N.E.2d 93. See Commonwealth v. Pimentel, 27 Mass.App.Ct. 557, 560, 540 N.E.2d 1335 (1989). "[T]he police do not effect a seizure
merely by asking questions unless the circumstances of the encounter are
sufficiently intimidating that a reasonable person would believe he was not
free to turn his back on his interrogator and walk away."
Commonwealth v. Fraser, supra at 544, 573 N.E.2d 979. See
Immigration & Naturalization Serv. v. Delgado,
466 U.S. 210, 216‑217, 104 S.Ct. 1758, 80
L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion);
United States v. Mendenhall, supra at 555, 100 S.Ct.
1870.
[4] On the
facts found by the motion judge, there is no evidence in the officer's words or
conduct from which a reasonable person would have concluded that he or she was
not free to leave. The officer
approached the defendant on a public street and asked him for his name and
address. There was no evidence that the
officer ordered the defendant to answer his questions or otherwise indicated
that the defendant was not free to terminate the interview. The officer also asked whether the defendant
had any money on his person. The officer
did not order the defendant to turn over his money. Nor did the officer engage in a show of
authority that could have been expected to command the production of the money.
Sanchez, supra at 644, 531 N.E.2d 1256. Rather, the defendant responded to a simple
question by voluntarily turning over the
[429 Mass. 407] money. Thinh Van Cao, supra at 386,
644 N.E.2d 1294 (no seizure where officer asked defendant's permission before
taking his photograph); Fraser, supra at 543, 573 N.E.2d 979 (no
seizure where officer asked defendant to take his hands out of his
pockets). Contrast Borges, supra at 791, 482 N.E.2d 314 (officer's request that
defendant remove his shoes effected seizure).
In these circumstances, the judge was correct in concluding that a
reasonable person would not have been so intimidated as to feel that he or she
could not terminate the encounter. We
therefore affirm the judge's determination that there was no seizure.
[5] 2. Strip search and visual cavity search. The defendant next complains that the strip
search and the visual body cavity search conducted at the police station were
unconstitutional. (FN4) He contends that the searches were
unreasonable under the Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights. The United States Supreme Court has stated
that "[t]he test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application.... Courts must consider the scope of the
particular intrusion, the manner in which it is conducted, the justification
for initiating it, and the place in which it is conducted." Bell
v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979) (holding constitutional visual body cavity search of
inmates). In Wolfish, the Court concluded that visual body cavity searches
may be conducted on something less than probable cause. Id. at 560, 99 S.Ct. 1861. Some
courts have interpreted Wolfish to
require only that police have a reasonable suspicion before conducting a strip
or a visual cavity search. See, e.g., Swain v. Spinney, 117 F.3d 1, 5 (1st
Cir.1997); Justice v. Peachtree City, 961 F.2d 188,
192 (11th Cir.1992); Masters v. Crouch, 872 F.2d 1248, 1255
(6th Cir.), cert. denied sub nom. Frey v. Masters, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Weber v. Dell, 804 F.2d
796, 802 (2d Cir.1986), cert. denied sub nom. County of Monroe v. Weber,
483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987).
The judge
correctly noted that we have not set out what level of suspicion or probable
cause is required before the police can
[429 Mass. 408] conduct a strip
search. The judge, following Wolfish and its progeny, applied a
reasonable suspicion standard to the strip search, concluding that the police
"had a reasonable, particularized suspicion that [the defendant] had
concealed drugs on his person."
The judge further concluded that the police had probable cause to
conduct the visual body cavity examination once the defendant retrieved the
cocaine from his buttocks area.
The
defendant suggests that we adopt the heightened standard we developed in Rodriques v. Furtado, 410 Mass. 878, 575 N.E.2d 1124 (1991), to the
searches performed here. We decline to
do so. The defendant asserts that Rodriques
applies where the government seeks to justify a strip search of a pretrial
detainee. The defendant misreads Rodriques. In Rodriques, we were concerned solely with a manual body
cavity search, which involves some degree of touching and probing of body
cavities. We stated that there must be
"a strong showing of particularized need supported by a high degree of
probable cause" before such a search could take place. Id. at 888, 575 N.E.2d
1124.
[6] Strip
searches are not as intrusive as manual body cavity searches so as to require
something more than probable cause before they can be deemed reasonable. Cf. Rodriques, supra.
However, strip searches are more intrusive than "pat‑downs,"
which require police to have only a reasonable suspicion before conducting
one. Thus, we conclude that probable
cause is the appropriate standard to apply to strip and visual body cavity
searches.
[7][8] The
findings of the judge indicate that the police had probable cause to believe
that the defendant had concealed contraband.
The defendant met with the woman who sold drugs to the undercover
officer immediately before she appeared with the cocaine. The defendant and the woman remained on the
street. Moments later, the defendant
produced the money used to pay for the drugs.
It was therefore reasonable for the police to believe that the defendant
was the seller's source, and, because he remained on the street with the woman,
that he had more hidden drugs. There is
no indication that the search was conducted in anything but a professional
manner. The search took place
immediately following booking. The
location of the search, in a corridor next to the holding cells in the police
station, concerns us, as it did the motion judge. But we agree with his assessment that the
location was not chosen to humiliate or
[429 Mass. 409] embarrass the
defendant. (FN5) Once the defendant removed the bag of
cocaine from his buttocks area, there was probable cause to believe that others
might be concealed there. The judge did
not err in concluding that the search for contraband was proper.
[9]
Although the judge focused on the search for contraband, the search was also
justified by the police's right to search for concealed weapons. The police must protect other detainees as
well as themselves. "The
justification or reason for the authority to search incident to a lawful arrest
rests quite as much on the need to disarm the suspect in order to take him into
custody as it does on the need to preserve evidence on his person for later use
at trial." United States v. Robinson, 414 U.S. 218,
234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). See
United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct.
1234, 39 L.Ed.2d 771 (1974) ("searches and seizures that could be made on
the spot at the time of arrest may legally be conducted later when the accused
arrives at the place of detention").
We
conclude that the defendant's motion to suppress was properly denied. There was no seizure of the defendant nor was
there an improper search of his person.
Judgments affirmed.
(FN1.) The defendant subsequently pleaded
guilty to second and subsequent offenses on the first indictment. G.L. c. 94C, § 32A
(d ).
Charges as to the third indictment as a second offense were placed on
file with the defendant's consent.
(FN2.)
The defendant states that he was subject to a "booking search" as
well. That fact was not found by the
motion judge.
(FN3.)
There is no evidence of a pursuit that would invoke separate State and Federal
inquiries. Commonwealth v. Stoute,
422 Mass. 782, 784‑785, 789, 665 N.E.2d 93 (1996).
(FN4.)
A strip search generally refers to an inspection of a naked individual, without
any scrutiny of his body cavities. A
visual body cavity search extends to a visual inspection of the anal and
genital areas. Cookish v. Powell,
945 F.2d 441, 444‑445 n. 5 (1st Cir.1991). The search in this case encompassed both.
(FN5.)
We recognize that strip and visual body cavity searches impinge seriously on a
person's privacy. The United States
Court of Appeals for the Seventh Circuit has described visual body cavity
searches as "demeaning, dehumanizing, undignified, humiliating,
terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission." Mary
Beth G. v. Chicago, 723 F.2d 1263, 1272 (7th
Cir.1983), quoting Tinetti
v. Wittke, 479 F.Supp.
486, 491 (E.D.Wis.1979), aff'd, 620 F.2d 160 (7th
Cir.1980). We share the sentiment of the
Supreme Court in Bell v. Wolfish, 441
U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979),
when it stated that "this practice instinctively gives us the most
pause." On the other hand, we also
acknowledge the these types of searches may be necessary in some cases, as was
demonstrated here. To preserve the
privacy of the person being searched to the utmost extent, police should
conduct strip and visual body cavity searches in private rooms whenever
possible.
In addition,
the searches should always be done where no one, other than the investigating
officer or officers, can see the person being searched. The record does not reveal whether private
rooms were available to conduct the search of the defendant. Nor did the motion judge determine whether
anyone actually saw the search from the holding cells.