Commonwealth v. Jeannis
Commonwealth v. Jeannis
Opinion of the Court
**355*500During a lawful strip search of the defendant following his arrest, police officers observed a plastic bag 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,
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,
On April 7, 2015, members of a Federal Bureau of Investigation task force arrested the defendant in a hotel room 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 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 **357his 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 *501officers 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 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,
**358Although 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." Id. at 862,
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,
1. Strip searches, visual body cavity searches, and manual body cavity searches. A strip search occurs when "the last layer of clothing of a detainee [is]
*502removed," 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,
"[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,
The same constitutional standards apply to both strip searches and visual body cavity searches. Thomas,
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,
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 ,
*503Because "[i]t is difficult to imagine a more intrusive, humiliating, and demeaning search than the one conducted inside [a person's] body," Rodriques,
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."
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 defendant's buttocks
**361This 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 *504a visual body cavity search to determine whether the bag has penetrated the defendant's anus. If it has 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
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,
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 **362any resistance. In United States v. Fowlkes,
3. Application of legal principles to removal of plastic bag here. The defendant on appeal argues that the removal of *505the 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 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,
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."
In reaching this conclusion, we give no weight to the fact that **364the 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,
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,
Conclusion. The order of the Superior Court judge denying the defendant's motion to suppress is affirmed.
So ordered.
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.
The "buttocks" are "[t]he fleshy prominences in the back 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).
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.
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.
Reference
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- COMMONWEALTH v. Stanley JEANNIS.
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