Commonwealth v. Vick

• Decision Date: 08 November 2016
• Docket Number: No. 14–P–1150.,14–P–1150.
• Citation: 62 N.E.3d 105,90 Mass.App.Ct. 622
• Parties: COMMONWEALTH v. Tyrone VICK.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 622

62 N.E.3d 105

COMMONWEALTH

v.Tyrone VICK.

No. 14–P–1150.

Appeals Court of Massachusetts, Suffolk.

Argued Sept. 7, 2016.

Decided Nov. 8, 2016.

Genevieve K. Henrique, East Falmouth, for the defendant.

Nicholas Brandt, Assistant District Attorney, for the Commonwealth.

Present: KAFKER, C.J., MILKEY, & BLAKE, JJ.

KAFKER, C.J.

The defendant, Tyrone Vick, was convicted of possession of a class B substance, see G.L. c. 94C, § 34, following a jury trial. He appeals, arguing that the motion judge erred in denying the defendant's motion to suppress evidence seized as the result of a stop, a search at the scene, and a search at the police station.¹ The search at the police station involved the use of force to pull down the defendant's pants and to remove a plastic bag containing drugs (which an officer had felt during the search at the scene) protruding from his buttocks. On appeal, the defendant claims that (1) the motion judge erred by failing to resolve conflicting testimony regarding material facts;² (2) the search at the police station constituted a manual body cavity search not supported by a warrant issued by a judge, as required by Rodriques v. Furtado, 410 Mass. 878, 888, 575 N.E.2d 1124 (1991) ; and (3) the police station search, even if characterized as a strip or visual body cavity search, was unreasonably conducted, particularly because it was performed in violation of a Boston police department policy requiring a warrant for the use of force to effectuate such a search. We affirm.

Background. “We summarize the facts found by the motion judge following the evidentiary hearing, supplemented where necessary with undisputed testimony that was implicitly credited by the [motion] judge.” Commonwealth v. Oliveira, 474 Mass. 10, 11, 47 N.E.3d 395 (2016). On May 9, 2007, at approximately 6:00 P.M. , Boston police Officers Peter Cazeau and Linda Stanford, both in uniform, were on patrol in a marked cruiser near the intersection of Stuart and Tremont Streets, in an area of Boston known for illegal drug activity. Cazeau observed another officer on foot and approached him in the cruiser. The officer informed Cazeau that a woman had reported several males acting suspiciously in a nearby alley. Cazeau and Stanford observed two men exit the alley. Both recognized one of the men as Anthony Cianci, an individual with several prior drug arrests.³ Cianci entered the passenger seat of a vehicle parked illegally in a crosswalk on Tremont Street. The defendant was in the driver's seat of the vehicle.

Cazeau and Stanford waited for the vehicle to move out of the crosswalk. When the vehicle remained, Cazeau issued a parking citation. While placing the citation on the windshield, Cazeau observed the defendant with his pants down around his knees, underpants pulled to the side, and penis exposed. Cianci was facing the defendant. Cazeau, intending to arrest one or both of the individuals for engaging in sexual conduct for a fee, see G.L. c. 272, § 53A, indecent exposure, see G.L. c. 272, § 53(a ), or open and gross lewdness, see G.L. c. 272, § 16, told both of the individuals not to move their hands. Cazeau ordered Cianci out of the vehicle and searched him. Cazeau recovered a pipe containing white residue, later determined to be “crack” cocaine, from Cianci's pocket. Stanford radioed for backup.

When Officer Steven Green arrived, he ordered the defendant to the back of the vehicle and searched him for weapons. During the search, Green felt a hard object in the cleft of the defendant's buttocks. When Green touched the object, the defendant tightened the muscles of his buttocks and “pulled away.” The defendant violently resisted the remainder of the search, prompting the officers to handcuff him. The defendant continued to thrash around and refused to spread his legs. The officers placed him in the back of a cruiser to transport him to the police station. While in the cruiser, the defendant continued to fidget and to flail, attempting to get his cuffed hands down the back of his pants. He was found with a handcuff key on his wrist band. A drug-sniffing dog was brought to the scene and the dog alerted to the presence of drugs in the defendant's vehicle.⁴

At the station, the defendant was placed in a holding cell while Officer Green obtained permission from his supervisor to conduct a strip search. Green then informed the defendant that he had authorization to conduct a strip search, but that it would not be necessary if the defendant removed the object from his buttocks voluntarily. When the defendant refused, two officers attempted to remove his pants. The defendant resisted forcefully, prompting three or four more officers to enter the cell to assist. With the defendant on the ground, the officers were able to remove his pants and see the object between his buttocks, which Green immediately recognized as crack cocaine wrapped in a plastic bag.⁵ Green “brushed” or “flicked” the object with his fingers and it “popped out on the ground,” according to his testimony. The motion judge found that Green, “[w]ithout manipulating the defendant's body, ... grabbed the bag and pulled it out from between the defendant's buttocks.” The motion judge further found that the “bag came out easily without any significant pulling force” and “without any touching or probing of [the defendant's] body cavities.” The defendant was charged with possession of a class B substance with intent to distribute, subsequent offense, G.L. c. 94C, § 32A(b ) ; committing a drug violation in a school zone, G.L. c. 94C, § 32J ; and resisting arrest, G.L. c. 268, § 32B.

Standard of review. “ ‘In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error,’ and we defer to the judge's determination of the weight and credibility to be given to oral testimony presented at a motion hearing.... We conduct an independent review of the judge's application of constitutional principles to the facts found.” Commonwealth v. Hoose, 467 Mass. 395, 399–400, 5 N.E.3d 843 (2014), quoting from Commonwealth v. Contos, 435 Mass. 19, 32, 754 N.E.2d 647 (2001). The judge's resolution of conflicting testimony “invariably will be accepted.” Commonwealth v. Ortiz, 435 Mass. 569, 578, 760 N.E.2d 282 (2002).

Discussion. 1. The stop. To justify an investigatory stop under the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights, “the police must have ‘reasonable suspicion’ that the person has committed, is committing, or is about to commit a crime. Reasonable suspicion must be ‘based on specific, articulable facts and reasonable inferences therefrom.’ ” Commonwealth v. Costa, 448 Mass. 510, 514, 862 N.E.2d 371 (2007) (citations omitted). See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A person is seized when “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. Isaiah I., 450 Mass. 818, 821, 882 N.E.2d 328 (2008). See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Officer Cazeau effectuated a stop of the defendant when he ordered the defendant not to move his hands. See Isaiah I., 450 Mass. at 822, 882 N.E.2d 328 (suspect seized when officer ordered him not to move). The defendant claims that Cazeau's order was not supported by reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime. Specifically, he argues that, because the testimony of Cazeau, Stanford, and Green conflicted in several respects, the motion judge left several facts material to this determination unresolved. We disagree.

Although the testimony of Cazeau, Stanford, and Green conflicted in some respects, their testimony did not differ on the points material to the reasonable suspicion analysis, as the motion judge aptly noted.⁶ Cazeau testified that he saw the defendant with his pants down to his knees, underwear to the side, and penis exposed. This observation gave Cazeau probable cause to believe that the defendant was committing the crime of indecent exposure, G.L. c. 272, § 53(a ).⁷ See Commonwealth v. Fitta, 391 Mass. 394, 396, 461 N.E.2d 820 (1984) (offense requires “an intentional act of lewd exposure, offensive to one or more persons” [citation omitted] ).⁸ See also G.L. c. 272, § 54 (authority to arrest for offense). Officer Stanford's testimony did not contradict this statement. Although Stanford did not state that she also saw the defendant with his pants down and his penis exposed, she was never directly asked whether she had. The motion judge also found that Cazeau approached the defendant's vehicle before Stanford, which might explain why he saw the defendant with his pants down and his penis exposed, but she did not. Thus, Cazeau's observation, properly credited by the motion judge and uncontroverted by Stanford, established reasonable suspicion to stop the defendant. The motion judge therefore properly denied the defendant's motion to suppress evidence related to the stop.

2. The search at the scene. Officer Cazeau's observation of the defendant with his pants down and penis exposed also gave Cazeau probable cause to arrest the defendant for indecent exposure. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Kennedy, 426 Mass. 703, 708, 690 N.E.2d 436 (1998), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). The fact that the defendant was not charged with indecent exposure does not alter this conclusion, contrary to the defendant's contentions. See, e.g., Commonwealth v. Lawton, 348 Mass. 129, 133, 202 N.E.2d 824 (1964) (“[i]f the facts known to the...