Commonwealth v. Morales

• Decision Date: 29 May 2012
• Docket Number: SJC–10982.
• Citation: 462 Mass. 334,968 N.E.2d 403
• Parties: COMMONWEALTH v. Carlos MORALES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 334

968 N.E.2d 403

COMMONWEALTH

v.Carlos MORALES.

SJC–10982.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 9, 2012.

Decided May 29, 2012.

Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

Peter M. Onek, Committee for Public Counsel Services, Boston, for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

IRELAND, C.J.

The Commonwealth appeals from an order entered in the Superior Court suppressing drugs seized from between the defendant's buttocks pursuant to a search incident to his arrest following a lawful automobile stop. During the search of the defendant, who was lying face down on a sidewalk and whose arms were handcuffed behind his back, the defendant's buttocks were exposed to public view. After an evidentiary hearing, the judge entered a memorandum of decision and order in which he ordered that the drugs be suppressed because, in the course of the search incident to his arrest, the defendant was subjected to a “strip search” that was unreasonably conducted in violation of both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. A single justice of this court granted the Commonwealth leave to pursue an interlocutory appeal from the judge's order in the Appeals Court. See Mass. R. Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We transferred the appeal here on our own motion. Because we conclude that the search of the defendant that took place when the police retrieved drugs from between his buttocks constituted an unreasonable strip search on account of the location of the search and the manner in which it was conducted, we affirm the suppression order.

1. Background. In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). “[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Bostock, 450 Mass. 616, 619, 880 N.E.2d 759 (2008), quoting Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

We summarize the judge's findings of fact, supplemented by uncontested testimony adduced at the evidentiary hearing. See Commonwealth v. Garcia, 443 Mass. 824, 828, 824 N.E.2d 864 (2005). See also Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007) (we “supplement a judge's finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony”). In early November, 2009, Detective Daniel Desmarais, a trained narcotics officer with the special investigations unit of the Lowell police department, was in regular contact with a confidential informant (CI) whom he described as having been reliable in the past. The CI informed him that the defendant, a Hispanic male known to the CI as “Carlos,” whom he described in height, weight, and hair style, and who lived at 189 Walker Street in Lowell, was selling “street-level amounts of heroin” out of a tan Ford Explorer sport utility vehicle. The CI indicated that “over the last month” he had purchased heroin from the defendant about “five times a week” and that the defendant obtained his drugs from someone who resided at 22 Fetherston Avenue in Lowell. The CI, in the presence of Detective Desmarais, once attempted by cellular telephone to arrange a controlled purchase from the defendant, who informed him that he (the defendant) did not have any drugs to sell at that time, but would have some later that evening (the controlled purchase did not materialize).

At various times during early November, Detective Desmarais observed the tan Explorer parked in the common parking lot of the apartment building at 189 Walker Street, and on one occasion saw the defendant enter the vehicle and leave. Detective Desmarais checked the registration plate of the Explorer and learned that it was registered to an individual (not the defendant) who resided at 189 Walker Street. Additionally, Detective Desmarais confirmed that the defendant's driver's license indicated 189 Walker Street as his residential address.

At about 1:20 p.m., on November 12, 2009, Detective Desmarais, who was in plain clothes and driving an unmarked vehicle, saw the defendant drive by in the Explorer. He followed the defendant and then passed surveillance off to a Detective Lavoie, who simultaneously was conducting a drug investigation connected to the Fetherston Avenue location. Detective Lavoie reported to Detective Desmarais that the defendant had pulled into the driveway at 22 Fetherston Avenue and appeared to make a cellular telephone call while inside the vehicle. Minutes later a woman came out of the residence and went over to the Explorer. After a brief conversation, the two went inside. About four to six minutes later, the defendant emerged from the residence and departed in the Explorer.

Detective Desmarais followed the defendant back to 189 Walker Street. Another police cruiser, driven by Lieutenant James Hodgdon, pulled into the lot. As the officers got out of their vehicles, the defendant looked at them and then drove away. With Detective Desmarais following, the defendant ignored a stop sign, traveled at a high rate of speed, and detoured through a parking lot to circumvent traffic. Although Detective Desmarais attemptedto keep pace, he lost sight of the defendant and radioed for assistance.

Officer Stephen Beland, who was patrolling nearby in a marked police cruiser, heard the dispatch with a description of the Explorer. He spotted the Explorer, activated his blue lights, and pulled the vehicle over in the vicinity of 189 Walker Street. As he did so, he observed that the defendant was leaning to his right.

As Officer Beland got out of his cruiser, he saw the defendant reach down toward the center console. The defendant was leaning to the right, placing his hands behind and underneath his torso, and was sitting up and down, and seemed to be concealing something behind the right side of his torso.

Officer Beland approached the Explorer with his firearm drawn and ordered the defendant to show his hands. The defendant did not comply and kept his hands tucked underneath and behind him. Officer Beland ordered the defendant to place his hands on the steering wheel. Meanwhile, Detective Desmarais had arrived, and also directed the defendant to show his hands. Eventually the defendant complied and the officers ordered him to get out of the vehicle.

Detective Desmarais led the defendant toward the rear of the vehicle. Officer Beland indicated that the defendant may have been hiding something in the vehicle and proceeded to search the area of the vehicle over which the defendant had had immediate control. He informed Detective Desmarais that he did not find any contraband.

During the subsequent pat-down of the defendant, who was wearing shorts, the defendant moved away and clenched his buttocks when Detective Desmarais reached the area of the rear waistband of his shorts. This observation, coupled with the information shared by Officer Beland, raised the suspicion that the defendant was concealing drugs. Proceeding with the pat-down, Detective Desmarais did an exterior sweep outside of the defendant's shorts and felt a lump between his buttocks, which did not appear to be a weapon.

Detective Desmarais walked the defendant to a more secluded area by a house and, after compelling the defendant to spread his legs apart, he pulled back the waistband to the defendant's shorts and observed a clear plastic bag containing a tan powder protruding from between his buttocks. Detective Desmarais told Lieutenant Hodgdon, who had arrived, “He's hiding it in his ass.” Suddenly, the defendant tried to run away, striking Detective Desmarais with his elbow during his attempt to do so. A struggle ensued between the defendant and Detective Desmarais. The defendant clenched his fist and turned toward Detective Desmarais, who was telling the defendant that he was being placed under arrest. Detective Desmarais punched the defendant on the left side of his jaw in order to “create space.” Both men fell to the ground, with the defendant's face striking the sidewalk. The defendant continued to try to escape, but, with the assistance of Officer Beland and two other officers, Detective Desmarais was able to handcuff the defendant's arms behind his back.

While in handcuffs and lying face down on the sidewalk, the defendant tried to reach down into his shorts. In response, Detective Desmarais grabbed the defendant's hand and removed it. He then pulled back the waistband to the defendant's shorts, exposing his buttocks to public view in so doing, and retrieved the bag from between the defendant's buttocks. After the drugs were seized, the defendant's father approached the scene and observed his son lying face down on the sidewalk with his buttocks exposed.

The defendant was indicted on charges of possession of a class A controlled substance (heroin) with intent to distribute, as a subsequent offense, G.L. c. 94C, § 32 ( a ) and ( b ); being a habitual offender, G.L. c. 279, § 25; assault and battery on a police officer (Detective Desmarais), G.L. c. 265, § 13D; and resisting arrest, G.L. c. 268, § 32B. He moved to suppress the drugs seized from him, claiming, as relevant here, that the drugs were obtained as the result of an unlawful search in violation of the Fourth and Fourteenth Amendments to the United States Constitution, arts. 12 and 14 of the Massachusetts Declaration of Rights, and G.L. c. 276, § 1.¹ After an evidentiary hearing, the judge agreed and allowed the motion. The ...