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SJC-12630

COMMONWEALTH vs. STANLEY JEANNIS.

Suffolk. February 5, 2019. - May 24, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress. Search and Seizure, Probable cause, Bodily intrusion, Body examination. Constitutional Law, Search and seizure, Probable cause. Probable Cause.

Indictments found and returned in the Superior Court Department on June 11, 2015.

A pretrial motion to suppress evidence was heard by Robert N. Tochka, J., and the cases were tried before Raffi N. Yessayan, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Ian MacLean, Assistant District Attorney, for the Commonwealth. Jane Larmon White for the defendant.

GANTS, C.J. During a lawful strip search of the defendant

following his arrest, police officers observed a plastic bag 2

protruding from the cleft between his buttocks and caused him to

remove it; it was revealed to contain individually wrapped

plastic bags of both heroin and cocaine. The issue presented in

this case is whether the removal of the plastic bag was within

the scope of the strip search, which requires only probable

cause, or whether the officers conducted a manual body cavity

search of the defendant's rectum, which requires the issuance by

a judge of a search warrant based on "a strong showing of

particularized need supported by a high degree of probable

cause." Rodriques v. Furtado,

(1991). We

conclude that, under the circumstances here, the removal of the

plastic bag was within the scope of the strip search and that

the actions taken by the police were reasonable within the

bounds of the Fourth Amendment to the United States Constitution

and art. 14 of the Massachusetts Declaration of Rights. We

therefore affirm the denial of the defendant's motion to

suppress the drug evidence. We also affirm his convictions.

Background. We summarize the facts as found by the judge

who heard the defendant's motion to suppress, supplemented by

uncontradicted witness testimony that the judge implicitly

credited. See Commonwealth v. Jones-Pannell,

(2015).

On April 7, 2015, members of a Federal Bureau of

Investigation task force arrested the defendant in a hotel room 3

in Revere on outstanding warrants. After the defendant was

arrested, Lieutenant David Callahan of the Revere police

department arrived at the hotel and brought the defendant to the

Revere police station for booking. At the station, the

defendant complained to Callahan that he had swallowed

"fifties," which Callahan understood to mean small bags worth

approximately fifty dollars of heroin or cocaine, and that he

did not feel well. Callahan did not believe that the defendant

was under the influence of narcotics and thought that he was

feigning illness, but nonetheless followed established protocol

and requested medical assistance.

Callahan observed the defendant as he sat on a bench during

the booking procedure, and noticed that the defendant "sat

oddly, leaning to one side." When the defendant told Callahan

he might vomit, Callahan, accompanied by Revere police Officer

Joseph Singer, escorted the defendant to a nearby cell with a

sink and toilet, which was out of sight from other prisoners and

not clearly visible to booking officers. As the defendant --

who was approximately six feet, two inches tall and weighed

approximately 275 pounds at the time of the arrest -- walked to

the holding cell, Callahan observed that he was not walking

normally. Even though the defendant was not restrained in

shackles or handcuffs, his movement was slow, rigid, and tense.

Callahan saw the defendant "clenching his buttocks area," and 4

believed that the defendant might have "something secreted in

his lower half," which Callahan recognized could pose a safety

risk to the defendant, the police officers, and other prisoners.

Once inside the holding cell, Callahan ordered the

defendant to remove his clothing. The defendant removed his

shirt, pants, and socks, but became argumentative when he was

asked to remove his underwear. While still wearing his

underwear, he continued to clench his buttocks area and

attempted to shield his backside from the view of Callahan and

Singer. Concerned that he was taking a "fighting stance" or

possibly hiding a weapon, the officers handcuffed one of the

defendant's arms, and Singer restrained the other arm.

The defendant pulled down the waistband of his underwear

and told the officers, in substance, "See, I don't have

anything." But when he did so, Singer noticed a plastic bag

protruding from the defendant's buttocks. He asked the

defendant to remove the bag and the defendant stated, "I will

get it for you if you don't charge me." Singer then ordered the

defendant to remove the bag, and told the defendant that he

would remove it himself if the defendant refused to do so. The

defendant complied and, with Singer's hand on top of the

defendant's hand, the defendant pulled down his underwear and

removed the bag from his buttocks area. It contained fifteen 5

individually wrapped bags of cocaine and thirteen individually

wrapped bags of heroin.

After a grand jury indicted the defendant on charges of

possession of cocaine and heroin with intent to distribute, as

subsequent offenses, the defendant moved to suppress the drugs

that were found in the plastic bag that was removed during the

strip search. Following an evidentiary hearing, a Superior

Court judge denied the motion. The judge concluded that there

was probable cause to believe that the defendant was attempting

to conceal contraband "in a private area of his body," so a

strip search was "proper." The judge also concluded that "[t]he

strip search did not cross over to a cavity search," noting that

the defendant removed the bag himself after Singer ordered him

to do so. A Superior Court jury convicted the defendant on the

lesser included counts of simple possession of both cocaine and

heroin. The defendant timely appealed, challenging the

lawfulness of the search.

The Appeals Court concluded that the defendant's motion to

suppress should have been allowed, and vacated the defendant's

convictions. Commonwealth v. Jeannis,

,

862-863 (2018). The court determined that the Commonwealth

failed to meet its "burden to provide evidence from which the

judge could find that no portion of the bag was within the

defendant's rectum."

. Because the item was 6

presumptively "seiz[ed] from within a body cavity,"

,

the court concluded that the heightened constitutional

requirements to perform a manual body cavity search must apply

in these circumstances. Although the court concluded that

"there was heightened probable cause to believe that the bag

protruding from the defendant's rectum contained contraband," it

nonetheless held that the drugs found in the bag should have

been suppressed because the bag "was seized without a judicial

warrant in circumstances that do not justify failure to obtain

one."

. We granted the Commonwealth's application

for further appellate review.

Discussion. We credit the motion judge's subsidiary

findings of fact, but we review de novo his legal conclusion

that the strip search of the defendant did not cross the line

into a manual body cavity search. See Commonwealth v. Thomas,

(1999). See also Commonwealth v. Catanzaro,

(2004) (appellate courts "independently

determine the correctness of the [motion] judge's application of

constitutional principles to the facts as found"). To conduct

that analysis, we must first review the constitutional

principles that apply to strip searches, visual body cavity

searches, and manual body cavity searches.

1. Strip searches, visual body cavity searches, and manual

body cavity searches. A strip search occurs when "the last 7

layer of clothing of a detainee [is] removed," or "when a

detainee remains partially clothed, but . . . a last layer of

clothing is moved (and not necessarily removed) in such a manner

whereby an intimate area of the detainee is viewed, exposed, or

displayed." Commonwealth v. Morales,

(2012).

A visual body cavity search occurs when a strip search "extends

to a visual inspection of the anal and genital areas." Thomas,

n.4.

"[S]trip 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 and art. 14." Commonwealth v. Prophete,

(2005), citing Thomas,

-409 & n.5. Yet

we recognize "that such searches are, in some cases, necessary

to serve legitimate ends of law enforcement."

The same constitutional standards apply to both strip

searches and visual body cavity searches. Thomas,

. We permit law enforcement officers to conduct such

intrusive searches only where they have probable cause to

believe that the defendant had concealed drugs, a weapon,

contraband, or evidence of a crime on his or her person or

clothing in a place where it would not be discovered by a

traditional search of the person -- that is, in a place where 8

the police reasonably could not expect to discover it without

exposing or inspecting an intimate area of the defendant's body.

See Morales,

, quoting Prophete,

("A search of a defendant 'lawfully could progressively

extend into a strip [or a visual body cavity] search only if

such a search was justified by 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'"). See also Commonwealth v. Agogo,

(2019).

We also require that such a search be "reasonably

conducted," considering the need for the search, the manner and

place in which it is conducted, and the scope of the intrusion.

Morales,

. See Agogo,

. "At

all times the potential harm to a detainee's health and dignity

should be taken into account in assessing the reasonableness of

the intrusion."

. "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." Thomas,

n.5.

"In addition, the searches should always be done where no one,

other than the investigating officer or officers, can see the

person being searched."

9

A manual body cavity search occurs where there is touching,

probing, or manipulation of a body cavity, such as the anal or

vaginal cavities. See Commonwealth v. Vick,

(2016). See also Thomas,

. See

generally Simonitsch, Visual Body Cavity Searches Incident to

Arrest: Validity Under the Fourth Amendment,

, 668 (2000) ("[M]anual body cavity searches, also known

as physical body cavity searches, include . . . those performed

by insertion of, or manipulation with, the fingers, [and] also

endoscopic examinations, and the use of gynecological devices"

[footnote omitted]).

Because "[i]t is difficult to imagine a more intrusive,

humiliating, and demeaning search than the one conducted inside

[a person's] body," Rodriques,

, and because

this type of search may pose an inherent threat to a person's

health and safety, law enforcement officers may conduct such a

search only where they first obtain a warrant "issued by the

authority of a judge, on a strong showing of particularized need

supported by a high degree of probable cause."

As with any

other constitutional search, the presence of exigent

circumstances may excuse the failure to obtain a warrant, but it

will not excuse the need for a strong showing of particularized

need supported by a high degree of probable cause. See Morales,

. 10

2. Bag protruding from the cleft between the buttocks.

Where, as here, a strip search reveals that a plastic bag is

protruding from the cleft between a defendant's buttocks, the

police must determine whether removal of the bag is part of the

strip search, which requires probable cause but not a search

warrant, or constitutes a manual body cavity search, which in

the absence of exigency requires a search warrant issued by a

judge. The Appeals Court concluded that the police in these

circumstances were required to apply for a search warrant to

remove the bag because they had failed to ascertain that "no

portion of the bag was within the defendant's rectum."1 Jeannis,

93 Mass. App. Ct. at 859.

We agree with the Appeals Court that police officers, if

they have probable cause, may conduct a visual body cavity

search to learn more about the precise location of a protruding

bag and that, if they determine through that visual search that

the bag is solely within the intergluteal cleft of the

1 The "anus" is "[t]he very end -- the last inch or so -- of the digestive canal, more specifically of the rectum." 1 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder, at A-273 (1986). The opening of the anus leads to the groove between the buttocks. Id. The "rectum" is "[t]he last five or six inches of the colon (large intestine, large bowel) . . . opening to the outside (in the groove between the buttocks) through the anus." 3 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder, at R-31 (1988). 11

defendant's buttocks2 and has not entered the anus, they may

remove the bag based on the same probable cause that justified

the visual body cavity search. But we do not agree that a

search warrant for a manual body cavity search is always

required to remove a plastic bag where the police did not or

could not ascertain that the bag is located completely outside

of the rectum -- that is, where it did not to any degree

penetrate the anus. Rather, we conclude that a search is a

strip or visual body cavity search, not a manual body cavity

search, where there is "no touching or probing or otherwise

opening or manipulating of the defendant's anal cavity, and the

bag of drugs was easily removed without in any way endangering

the defendant's health or safety." Vick,

.

This means that, where police officers are uncertain

whether the bag has penetrated the defendant's anus, they have

two alternatives. First, where they have probable cause to do

so, they may conduct a visual body cavity search to determine

whether the bag has penetrated the defendant's anus. If it has

The "buttocks" are "[t]he fleshy prominences in the back 2

of the hips upon which the trunk rests when the body is in a sitting posture." 1 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder, supra at B-132. The "intergluteal cleft" is the "split, fissure, or crack" in the area between the buttocks. Id. at C-190. 2 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder, at I-80 (1988). 12

not, they may remove the bag without a search warrant. Second,

where the bag has penetrated the anus or where the police

officers have not ascertained through a visual body cavity

search whether it has, they may determine whether the bag can be

safely removed without any touching, probing, or manipulation of

the rectum. See id. If it can be safely removed and if there

is no touching, probing, or manipulation of the rectum, the

removal of the bag is not a manual body cavity search. See id.

However, if the bag cannot be safely removed without any

touching, probing, or manipulation of the rectum or if there is

uncertainty whether it can be, the officers must apply for a

search warrant for a manual body cavity search, unless exigent

circumstances justify proceeding without a warrant. See id. at

628-629.

Pragmatically, a police officer may determine whether the

bag can be safely removed without any touching, probing, or

manipulation of the rectum by gently flicking the bag with his

or her fingers, applying no significant pulling force on the

bag. If that suffices to remove the bag without any resistance,

we do not consider the search to be a manual body cavity search.

See id. at 625, 629. A gentle flick to remove a plastic bag

protruding from the cleft of a defendant's buttocks may in some

circumstances be safer and less intrusive than a visual body

cavity search intended to determine whether the bag has 13

penetrated the defendant's anus. It is easy to envision a

defendant resisting an intrusive and embarrassing visual body

cavity search, risking injury to both the defendant and the

police officers attempting to restrain the defendant. And a

gentle flick may be less intrusive than a visual inspection

because a police officer attempting to conduct the inspection

might need to place his or her fingers so close to the anus that

he or she might come close to a touching or probing that would

constitute a manual body cavity search.

If there is any resistance to the gentle flick, indicating

that the bag is in any way lodged or embedded within the body

cavity, then the police must release the bag and apply for a

search warrant for a manual body cavity search, unless there are

exigent circumstances. We recognize the health risk that may

arise if a police officer were to continue to pull on the bag

where there is any resistance. In United States v. Fowlkes,

(9th Cir. 2015), a police officer continued to

pull on a bag protruding from the defendant's rectum after

encountering resistance in what was described as "a difficult,

abrasive procedure," where the plastic bag "went from a dime

size . . . to somewhat near a golf ball size as it was taken

out," and was "covered in blood." The requirement of a search

warrant for a manual body cavity search is intended not only to

ensure that a judge determines whether there is a strong showing 14

of particularized need supported by a high degree of probable

cause, Rodriques,

, but also to ensure that any

such search is conducted in a safe, reasonable manner under

sanitary conditions by a trained medical professional. See

(warrantless forcible seizure of plastic

bag protruding from defendant's rectum was unreasonable under

Fourth Amendment where item of unknown size was removed from

rectum by nonmedical personnel who "did nothing to assure that

the removal was safe and performed under sanitary conditions").

3. Application of legal principles to removal of plastic

bag here. The defendant on appeal argues that the removal of

the plastic bag that protruded from the cleft of his buttocks

constituted a manual body cavity search, and that the officers

failed to obtain the necessary judicial warrant before removing

the bag. The Commonwealth, in turn, contends that the strip

search never became a manual body cavity search and thus did not

require a warrant. Because we conclude that the Commonwealth is

correct, we do not reach the other issue the parties raise --

whether exigent circumstances justified an exception to the

warrant requirement.

The judge's findings indicate only that the plastic bag

that contained the drugs protruded from the defendant's

"buttocks"; the judge did not find whether any part of the

plastic bag was in the defendant's rectum, and the evidence on 15

that point is not so clear that we can infer that the judge

implicitly found that the bag did not penetrate into the rectum

where he concluded that "[t]he strip search did not cross over

to a cavity search." Therefore, because the burden rests with

the Commonwealth on a motion to suppress to justify a

warrantless search, Commonwealth v. Antobenedetto,

(1974), and because the Commonwealth did not prove that the

plastic bag did not to some degree penetrate the defendant's

anus, we must assume for the sake of this motion that the

plastic bag did penetrate into the rectum.3 But in contrast to

what the defendant suggests, our task does not end there.

Instead, we must determine whether the removal of the bag was

conducted in a manner permissible for a strip search -- that is,

whether the removal of the bag met with any resistance that

suggested that it was lodged or embedded in the victim's rectum.

3 The parties dispute the relevance of certain medical records that were admitted in evidence at (or following) the motion to suppress hearing. These records, produced by the ambulatory service that brought the defendant to a hospital from the Revere police station, contain a note stating: "PER REVERE [POLICE DEPARTMENT] [PATIENT] HAS BEEN ARRESTED, HAD BEEN FOUND TO HAVE BAGS OF TIGHTLY WRAPPED CRACK COCAINE AND HEROIN (SEPARATELY) HIDDEN IN HIS RECTUM." The defendant argues that these records confirm that the police knew or believed that the bag was located partly within the defendant's rectum. But as discussed supra, with no factual findings to the contrary, we must already make that assumption for the purpose of deciding this appeal. 16

Although the judge's findings on this factual issue are not

as clear as we would prefer, we see no need to remand the case.

There is nothing in the judge's findings to suggest that the bag

required more than minimal force to remove, and we therefore

conclude that the judge implicitly found that the bag was safely

removed without any touching, probing, or manipulation of the

rectum. The judge found that Singer's hand was on top of the

defendant's hand while the defendant pulled out the bag, and the

defendant in his testimony said that "with my free hand I just

retrieved it."4 The size of the 275 pound defendant compared to

the small plastic bag at issue -- a photograph of which was

admitted in evidence -- supported the finding that the bag,

which was apparently visible outside the intergluteal cleft as

soon as the defendant pulled down his waistband, did not extend

so far down as to be lodged or embedded in his rectum. Although

we cannot know with certainty on this record whether any part of

the bag was inside the rectum, the facts as found support the

conclusion that the bag was not lodged or embedded in the

defendant's rectum but was easily removed, and therefore the

defendant's rectum did not need to be "manipulated" in order to

4 The defendant testified that Singer had put his fingers up the defendant's rectum and "probably pulled [the plastic bag] out half way" before the defendant removed it himself, but the judge did not credit the defendant's testimony regarding Singer's conduct. 17

retrieve the bag. Consequently, a search warrant issued by a

judge was not required.

In reaching this conclusion, we give no weight to the fact

that the defendant removed the bag himself, with Singer's hand

over his. The defendant pulled out the bag after a direct order

from Singer to do so; he did not consent to do so voluntarily.

See Commonwealth v. Carr,

(2010) ("The

Commonwealth must prove consent unfettered by coercion, express

or implied, and also something more than mere acquiescence to a

claim of lawful authority" [quotations and citation omitted]).

See also George v. Edholm,

(9th Cir. 2014)

("Police officers may not avoid the requirements of the Fourth

Amendment by inducing, coercing, promoting, or encouraging

private parties to perform searches they would not otherwise

perform"). Therefore, we assess the lawfulness of the officer's

conduct as if he alone had pulled out the plastic bag.

Lastly, we recognize that the defendant has identified at

least two States where appellate courts have ruled that the

removal of any item protruding from a suspect's rectum was a

manual body cavity search that required a search warrant. In

People v. Hall,

, cert. denied,

(2008), the Court of Appeals of New York concluded that "the

removal of an object protruding from a body cavity, regardless

of whether any insertion into the body cavity is necessary . . . 18

cannot be accomplished without a warrant" unless exigent

circumstances exist. In State v. Barnes,

(Ct. App. 2007), a panel of the Court of Appeals of Arizona

declared that "an officer must secure a warrant to remove items

partially protruding from an arrestee's rectum." However, when

one examines the facts of those cases, they are consistent with

our conclusion that a warrant is required where items are lodged

or embedded within the rectum, such that the items would require

manipulation of the rectum to dislodge. In

,

the police officers "observed a string . . . hanging out of

defendant's rectum," and, "[b]elieving that the string was

attached to a package . . . hidden inside defendant's body," one

officer held the defendant while the other "pulled on the string

and removed a plastic bag that was found to contain crack

cocaine." Similarly, in

, the officer

"grabbed a hold" of "something protruding out of [the

defendant's] anus," and the court declared that "the officer's

manipulation and removal of the protruding portion of the bag

necessarily exerted force on the portion of the bag extending

into [the defendant's] rectum." Here, in contrast, where the

Commonwealth met its burden of showing that the protruding

plastic bag was not lodged or embedded in the defendant's rectum

and that its removal did not cause any manipulation of the 19

rectum, the same constitutional concerns do not arise.

Accordingly, the motion to suppress was properly denied.

Conclusion. The order of the Superior Court judge denying

the defendant's motion to suppress is affirmed. The judgments

of conviction are also affirmed.

So ordered.