Commonwealth v. Jeannis
| Decision Date | 31 August 2018 |
| Docket Number | No. 17-P-10.,17-P-10. |
| Citation | 110 N.E.3d 1211 |
| Parties | COMMONWEALTH v. Stanley JEANNIS. |
| Court | Appeals Court of Massachusetts |
Jane Larmon White, Boston, for the defendant.
Ian MacLean, Assistant District Attorney, for the Commonwealth.
Present: Rubin, Sacks, & Wendlandt, JJ.
The 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, 575 N.E.2d 1124 (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.
Background. After a 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.
The 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.
Callahan 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.
Callahan 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.
Callahan 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. Callahan had Singer handcuff one arm of the defendant while holding the defendant's other arm.
The defendant pulled down his waistband and said words to the effect of, "[S]ee I don't have anything." Officer Singer, however, saw a plastic bag protruding from the defendant's buttocks. Singer ordered the defendant to remove the bag or have Singer remove it. The defendant agreed to remove it himself and then pulled down his underwear. Singer put his hand on top of the defendant's hand as the defendant "removed the bag." The bag contained fifteen individually wrapped bags of cocaine and thirteen individually wrapped bags of heroin.
Analysis. Our cases have distinguished among three related types of searches relevant to this appeal: strip searches, visual body cavity searches, and manual body cavity searches. Commonwealth v. Thomas, 429 Mass. 403, 407 n.4, 708 N.E.2d 669 (1999). A manual body cavity search "involves some degree of touching and probing of body cavities." Id. at 408, 708 N.E.2d 669. We have said that "[i]t is difficult to imagine a more intrusive, humiliating, and demeaning search than" a manual body cavity search. Furtado, 410 Mass. at 888, 575 N.E.2d 1124. Indeed, "strip 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 [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights]," Commonwealth v. Vick, 90 Mass. App. Ct. 622, 628, 62 N.E.3d 105 (2016), quoting from Commonwealth v. Morales, 462 Mass. 334, 339-340, 968 N.E.2d 403 (2012), and "[m]anual body cavity searches constitute an even greater intrusion on a person's privacy rights," ibid. Consequently, the Supreme Judicial Court has held that in Massachusetts, even when the police undertake a search incident to a lawful arrest -- in which circumstance case law holds that a strip search may be conducted without a warrant only when the police have "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," Commonwealth v. Prophete, 443 Mass. 548, 554, 823 N.E.2d 343 (2005)1 -- "a judicially authorized warrant based on ‘a strong showing of particularized need supported by a high degree of probable cause’ is required for a manual body cavity search." Vick, 90 Mass. App. Ct. at 629, 62 N.E.3d 105, quoting from Furtado, 410 Mass. at 888, 575 N.E.2d 1124. Accord Furtado, 410 Mass. at 888, 575 N.E.2d 1124 ().
The defendant argues that this was not merely a search, but a seizure, of the plastic bag from a body cavity, his rectum, and, applying the principles concerning manual body cavity searches articulated in Furtado, that seizures from a body cavity may be made only on the authority of a warrant issued by a judge and supported by a high degree of probable cause. We agree.
The Commonwealth's primary argument in response to the defendant's contention is factual. It argues that all that occurred here was a permissible strip search, because, as a matter of fact, the plastic bag was seized not from the defendant's rectum, but from what it refers to as his "intergluteal cleft." Our cases indicate that items hidden between the buttocks are not within a "body cavity," and that if a strip search reveals items there that easily fall out, it has not necessarily crossed the line to a manual body cavity search. See Vick, 90 Mass. App. Ct. at 629, 633, 62 N.E.3d 105 ().
The motion judge, however, did not find that the plastic bag was merely held between the defendant's buttocks, nor could he have on the evidence before him. The Commonwealth sought to defend this as a strip search, and in order to make its case, it had the burden to provide evidence from which the judge could find that no portion of the bag was within the defendant's rectum. See Commonwealth v. Taylor, 10 Mass. App. Ct. 452, 454, 409 N.E.2d 212 (1980) (). The Commonwealth's witnesses, however, provided no testimony indicating that the bag was simply lodged between the defendant's buttocks, entirely outside his rectum. Contrast Vick, 90 Mass. App. Ct. at 629 n.12, 62 N.E.3d 105 (). Nor is there any testimony, as there was in Vick, indicating that the plastic bag was outside the defendant's rectum such that it easily fell or popped out when the defendant and the officer touched it. Rather, Officer Singer testified only that the defendant "spread one cheek and we reached in and retrieved [the bag] from inside his butt," rather than from between his buttocks, and that "he helped me with the cuffs on to take the drugs out of his butt." The Commonwealth thus did not present sufficient evidence to support a finding of the fact it asserts: that the protruding plastic bag was not partially within the defendant's rectum.2 That the judge did not find that the plastic bag was merely held between the defendant's buttocks is confirmed by his conclusion, in the "analysis" section of his memorandum of decision, that the reason this was not a cavity search is that the defendant himself removed the bag (a point we discuss later). The judge wrote: This analysis of why there was no "cross over" would have been unnecessary had the judge concluded that the bag was merely lodged between the defendant's buttocks.3
The Commonwealth argues next that this could not have been a manual body cavity search because the police did not "manipulate[e] the defendant's body" or "touch[ ] or prob[e] ... [the defendant's] body cavities." Vick, 90 Mass. App. Ct. at 625, 62 N.E.3d 105. But this misses the defendant's point that, regardless of the scope of any search, there was a seizure from his body cavity. The Commonwealth does not address this at all.4
The Commonwealth also argues that, as the motion judge concluded, there cannot have been a body cavity search because the defendant removed the bag himself. Even assuming the removal of the bag by the defendant and the police officer together could be characterized as removal by the defendant himself, and applying the Commonwealth's search...
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Commonwealth v. Jeannis
...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......