United States Court of Appeals For the First Circuit

No. 19-1950

UNITED STATES OF AMERICA,

Appellee,

v.

ANDRES PEREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Daniel J. Cloherty, by appointment of the Court, with whom Maria Davis and Todd & Weld LLP were on brief, for appellant. Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

October 9, 2020 LYNCH, Circuit Judge. The defendant, Andres Perez,

appeals from the district court's denial of a motion to suppress

drug evidence which was seized without a warrant as a result of an

automobile stop and drug evidence from a subsequent visual body

cavity search conducted at the Revere police station. The

defendant argues that the police officers lacked reasonable

suspicion to perform the initial stop of his vehicle and the

requisite level of suspicion to perform the visual body cavity

search of his person and so violated his rights under the Fourth

and Fourteenth Amendments of the United States Constitution. We

hold that the facts establish that the police had reasonable

suspicion to perform the automobile stop and particularized

reasonable suspicion to perform the visual body cavity search. We

affirm.

I.

A. Facts

On the morning of October 31, 2017, Lieutenant Maria

Lavita and Detective Douglas Zingali of the Revere Police

Department were driving in an unmarked police cruiser through

Revere, Massachusetts. Lt. Lavita had twenty-two years of

experience with the Revere Police Department, including experience

with drug distribution crimes and undercover drug buys during her

years as a detective. She was also the head of the Criminal

Investigation Division at the Revere Police Department, which

- 2 - included the drug crime unit. Det. Zingali had twenty-one years

of experience with the Revere Police Department, including six

years as a detective.

As the officers were driving south on a residential

street near Route 1A, they observed a white male pacing back and

forth along the street and talking on a cell phone. The officers'

attention was drawn to the unidentified man because they believed

he was inappropriately dressed in shorts and a T-shirt given the

cool weather and time of year. The officers testified that the

man appeared agitated and kept looking down the side streets as

though he was waiting for somebody or giving directions.

The officers observed the man turn hurriedly onto one of

the side streets. They saw the man lean into the passenger side

window of a parked brown Mercedes for no more than fifteen seconds

and then walk away. The officers could not see whether anything

was exchanged between the man and the vehicle's occupants, nor

could they see anything in the man's hands as he walked away from

the Mercedes. But based on their training and experience, the

officers believed that a street-level drug transaction had just

transpired.

The Mercedes immediately drove off as the man walked

away and the officers decided to follow the vehicle. As the

officers followed in their unmarked cruiser, the Mercedes made a

series of turns onto various streets until the vehicle had

- 3 - basically traveled in a circle. This unusual route, together with

the vehicle's strict adherence to the motor vehicle laws, led the

officers to believe that the driver of the Mercedes was aware that

he was being followed by police. The officers activated their

lights and sirens and the Mercedes pulled over into a residential

driveway.

The officers parked behind the Mercedes and got out of

the cruiser. As they approached the Mercedes, the officers saw

the driver and passenger exchange cell phones in the vehicle. Det.

Zingali approached the driver's side and asked the driver for his

license and registration, while Lt. Lavita approached the

passenger's side to speak to the passenger. The driver, who

identified himself as Andres Perez, provided the vehicle

registration and stated that he did not have his license with him.

Det. Zingali asked Perez why he had pulled into the driveway, and

Perez answered that he was visiting a friend at that house and

provided a name for the "friend."

The officers radioed the dispatch center to request the

status of Perez's license and registration. The dispatch center

informed them that Perez's license had been revoked. The officers

called for a marked police cruiser to place Perez under arrest for

operating after revocation. When the marked cruiser arrived, Det.

Zingali ordered Perez out of the Mercedes and Det. Zingali

conducted a pat frisk of Perez. Det. Zingali discovered some money

- 4 - and other items but found no weapons or drugs from the pat frisk.

As that was happening, the passenger, Cesar Alicea, suddenly jumped

out of the passenger side of the vehicle and fled. Lt. Lavita and

one of the officers who had arrived in the marked cruiser pursued

Alicea on foot while Det. Zingali handcuffed Perez and placed him

in the back of the marked cruiser. As they were running, the

backup officer saw Alicea reach into his waistband and toss an

object over a fence into a residential backyard. The officer

placed Alicea under arrest.

Detective Lieutenant Robert Impemba arrived to help the

officers search for the object that Alicea had thrown over the

fence. Lt. Impemba was a supervisor of the Narcotics and Gang

Unit of the Revere Police Department and was also a task force

officer assigned to the FBI North Shore Gang Task Force, with about

ten years of experience in gang and drug investigations. Lt.

Impemba recovered a loaded semiautomatic firearm and ammunition

from a garden in one of the yards near where Alicea had thrown the

object. The condition of the soil and the gun indicated that the

gun had not been there very long.

After Alicea had been arrested and the firearm

recovered, the other officers returned to the Mercedes. Lt.

Impemba saw Perez in the back of the marked cruiser and recognized

him from a previous drug investigation. Lt. Impemba had arrested

Perez for distribution of crack cocaine and heroin after undercover

- 5 - purchases had been made from him on numerous occasions. Lt.

Impemba also knew Perez to be an affiliate of the drug-distributing

East Side Money Gang out of Chelsea, Massachusetts.

Perez and Alicea were transported to the Revere police

station for booking while Lt. Lavita and Det. Zingali awaited the

arrival of a K-9 narcotics dog to search the Mercedes for evidence

of drug distribution. During that vehicle search, the officers

recovered a small, clear plastic baggie containing a white, rock-

like substance from the floor between the driver's side door and

seat. The officers believed the white substance to be crack

cocaine. Lt. Impemba testified that, based on the single

distribution-size baggie recovered from the vehicle and his

experience, Perez likely would have been carrying numerous baggies

packaged for distribution. The parties agree that three cell

phones were also recovered during the search of the vehicle. The

officers discovered a revoked license plate in the trunk of the

Mercedes.

Lt. Impemba booked Perez at the Revere police station

with Det. Zingali and one other uniformed officer present. During

the booking process, $269 in various denominations were removed

from Perez's pocket. Lt. Impemba testified that the amount of

money in various denominations was consistent with street-level

drug distribution. Lt. Impemba informed Det. Zingali of Perez's

arrest history for narcotics distribution. Based on the

- 6 - information that Perez was a known drug dealer, Det. Zingali's

belief that he and Lt. Lavita had witnessed a drug transaction,

the single small baggie of suspected drugs found on the driver's

side of the Mercedes in between the driver's seat and door, the

money found on Perez, the fact that no other drugs were discovered

from the pat down of Perez, and their experience and training, Lt.

Impemba and Det. Zingali concluded that Perez was likely concealing

more drugs on his body. They decided that a strip search and a

visual body cavity search were necessary to recover those drugs.

Perez was instructed to pull down his pants and underwear

and to bend over at the waist. After initial hesitation, Perez

bent over and Det. Zingali lowered himself and looked up towards

Perez's buttocks. Det. Zingali saw a clear plastic baggie

protruding from between Perez's buttocks and removed the baggie

with a gloved hand. The plastic bag was found to contain ten

smaller plastic baggies of crack cocaine and three smaller plastic

baggies of heroin. The strip search and visual body cavity search

were not performed pursuant to a standard written policy of the

Revere Police Department.

B. Procedural History

Perez was indicted on one count of possession with intent

to distribute cocaine base in violation of

(a)(1).

On July 11, 2018, Perez filed a motion to suppress all evidence

obtained from the warrantless stop and search of the Mercedes and

- 7 - the warrantless strip search and visual body cavity search. The

district court held a hearing on the motion to suppress on October

31, 2018, and issued a memorandum and order denying that motion on

January 11, 2019. United States v. Perez, Criminal Action No. 17-

10391-RGS,

, at *5 (D. Mass. Jan. 11, 2019).

The district court held that, based on the officers'

observations and experience, they had reasonable suspicion to

conduct the initial stop of Perez's vehicle.

.

Specifically, the court found that the following observations

reasonably supported an inference that a drug transaction had taken

place: (1) "an agitated man inappropriately dressed for the weather

pacing on a public street while speaking on a cellular phone"; (2)

that same man "after several minutes of pacing and talking, walked

around the street corner where he approached a Mercedes vehicle

idling in the middle of the street, having come from the direction

of Route 1A"; (3) "th[at] man then leaned into the passenger window

for 10 or 15 seconds and then walked away"; and (4) " the unusual

and circuitous route that the Mercedes took while driving away

from the scene, a route that an experienced officer would have

recognized as consistent with counter surveillance and/or an

attempt to evade police."

The court also held that Perez's

arrest and the search of the Mercedes were lawful.

.

With respect to the strip and visual body cavity

searches, the district court first cited Bell v. Wolfish, 441 U.S.

- 8 - 520 (1979), for the proposition that "[s]earches of persons jailed

after arrest, including strip searches and visual body cavity

searches, may be conducted with less than probable cause if the

search is reasonable in scope, manner, and purpose." Perez,

, at *4 (emphasis added) (citing Wolfish, 441 U.S. at

558-60). Neither party had cited Wolfish for that precise

proposition in their briefs to the district court. The district

court then cited our decision in Swain v. Spinney,

(1st

Cir. 1997), for the proposition that to be reasonable under

Wolfish, "strip and visual body cavity searches must be justified

by at least a reasonable suspicion that the arrestee is concealing

contraband or weapons." Perez,

, at *4 (quoting

Swain,

).

Ultimately, the district court held that

[t]he search of Perez incident to booking was lawful, including the strip and visual body cavity search of his person . . . [because] [a] detainee who is jailed pursuant to a valid arrest, regardless of the nature or degree of the crime, may be subjected to a visual body cavity search on reasonable suspicion (or less).

at *5 (citing Florence v. Bd. of Chosen Freeholders,

(2012)). The district court cited this rule even

though neither party had cited Florence to the court and the

government had never argued that a standard less than

particularized reasonable suspicion should apply. Rather, the

- 9 - government had argued only that the booking officers had

particularized reasonable suspicion to justify the search.

Perez entered a conditional plea agreement, reserving

his right to challenge the district court's denial of his motion

to suppress, and he was sentenced to seventy-two months'

imprisonment. He timely appealed.

II.

On appeal, Perez challenges only whether the officers

had reasonable suspicion to perform the automobile stop and

particularized reasonable suspicion to perform the visual body

cavity search. He does not assert that the search of his vehicle,

once stopped, was unlawful or that the scope or manner of the

visual body cavity search was overly intrusive.

In reviewing the denial of a motion to suppress, we

evaluate legal conclusions de novo and findings of fact for clear

error. United States v. McGregor,

(1st Cir.

2011). We assess the record evidence in the light most favorable

to the suppression ruling. United States v. Arnott,

(1st Cir. 2014). We need not rely solely on the district

court's reasoning and may affirm a suppression ruling on any basis

apparent in the record. Id.; see also United States v. Adams,

(1st Cir. 2020) ("[W]e construe the record in the light

most congenial to the district court's ruling and will affirm the

court's denial of a suppression motion 'as long as that denial is

- 10 - supported by any particularized and objectively reasonable view of

the evidence.'" (quoting United States v. Tanguay,

(1st Cir. 2016))).

A. The Officers Had Reasonable Suspicion to Stop Perez's Vehicle

Perez argues that Lt. Lavita and Det. Zingali may have

had a "hunch" that criminal activity had taken place, but that

they lacked the reasonable suspicion necessary to stop Perez's

vehicle. A police officer can conduct a brief investigatory stop

of a person or vehicle where the officer has a reasonable suspicion

that criminal activity is afoot. United States v. Arvizu,

(2002). A reviewing court must consider the

"totality of the circumstances" in determining whether the officer

had a particularized and objective basis for suspecting criminal

activity, which may include inferences drawn from the officer's

specialized training and experience. Id.; see also United States

v. Dubose,

(1st Cir. 2009).

We agree that the officers' observations of the

activities of both the man and the Mercedes and its passengers

justified the stop of Perez's vehicle. Lt. Lavita and Det. Zingali

observed a man inappropriately dressed for the weather pacing back

and forth and looking up and down various streets while on a cell

phone, before finally rushing towards an arriving vehicle. Those

observations could support an inference that this was a planned

meeting. That, together with the nature of the man's brief

- 11 - interaction with the occupants of the Mercedes, could reasonably

have led Lt. Lavita and Det. Zingali, who both had extensive

training and experience in narcotics distribution, to conclude

that a street-level drug transaction had just occurred. See

Dubose,

(finding reasonable suspicion of a drug

transaction based on the brief nature of the interaction between

the defendant and the occupants of the vehicle, the fact that the

defendant leaned his body into the vehicle during the interaction,

the fact that the defendant's conduct was similar to conduct in

other drug transactions in the area, and the expertise of the

observing officer); United States v. Trullo,

(1st Cir. 1987).

The officers' reasonable suspicion of criminal activity

was further supported by the strange and circuitous route the

Mercedes took once the unmarked cruiser began to follow, which

reasonably led Lt. Lavita and Det. Zingali to believe that the

driver was attempting to evade police surveillance. See Florida

v. Rodriguez,

(1984) (stating that the defendant's

"strange movements in his attempt to evade the officers [inside

the airport] aroused further justifiable suspicion" for the stop);

United States v. Vargas,

(1st Cir. 1980)

(finding reasonable suspicion to justify an automobile stop based,

in part, on the vehicle's "seemingly evasive driving pattern").

- 12 - B. The Officers Had Particularized Reasonable Suspicion to Conduct the Visual Body Cavity Search

Perez also argues that the district court erred in

finding that the visual body cavity search was permissible. Perez

argues that the district court erred in applying the Supreme

Court's decision in Florence to the context of an arrestee being

booked in a police station.1 See

;

see also Wolfish, 441 U.S. at 558-60.

This case was never presented to the district court as

one involving the rule of Florence and Wolfish. Indeed, the

government never even cited Florence in its briefs to the district

court, but rather relied solely on the particularized reasonable

suspicion standard from United States v. Barnes,

(1st

Cir. 2007), and Swain to justify the visual body cavity search.2

No evidence relevant to whether the rule of Florence and Wolfish

1 Florence and Wolfish were both decided in the specific context of detention facilities, such as prisons or jails, in which correctional officers conducted suspicionless searches, pursuant to a standard policy, of all detainees entering or reentering the general population and which were motivated by the special safety and security concerns that inhere to those facilities. See Florence,

; Wolfish, 441 U.S. at 546-48, 558-60.

2 The government does not dispute that the search here involved a visual body cavity search, rather than a mere strip search. See Barnes,

(distinguishing the level of particularized suspicion necessary for a visual body cavity search from that necessary for a less-intrusive strip search). We accept the parties' characterization of this search as involving a visual body cavity search.

- 13 - applies in this context was ever presented to the district court,

such as the conditions of the holding cells or the particular

safety or security concerns at the Revere police station. The

district court simply cited Florence without explaining why it

applies to the circumstances of this case. See Perez,

, at *4-5. That was error.3

Nonetheless, the parties agree that we can decide the

particularized reasonable suspicion issue on this record applying

our decisions in Barnes and Swain. See Barnes,

;

Swain,

.4 In Barnes, we reaffirmed that "the

reasonable suspicion standard governs strip and visual body cavity

searches in the arrestee context" and "[t]he suspicion must be

specific to the individual being searched."

(alteration omitted) (first quoting Swain,

; then

citing Roberts v. Rhode Island,

(1st Cir. 2001));

3 On appeal, the government does not defend the visual body cavity search on Florence grounds, but rather focuses its arguments on whether the visual body cavity search was justified by particularized reasonable suspicion.

4 The district court did not cite Barnes anywhere in its opinion, nor did it cite Swain's reasonable suspicion standard in the portion of its opinion deciding the permissibility of the strip and visual body cavity search of Perez. Perez,

, at *5. Rather, it merely cited Florence for the broader rule that the visual body cavity search of Perez could be justified on reasonable suspicion or less.

The district court thus failed to analyze specifically whether the officers had particularized reasonable suspicion to conduct the visual body cavity search of Perez under Barnes.

- 14 - see also

(holding that because "a visual body cavity search

involves a greater intrusion into personal privacy[,] . . . prior

to conducting a visual body cavity search, we require a more

particularized suspicion that contraband is concealed").5

Lt. Impemba and Det. Zingali were aware that Perez was

a known drug dealer, and Lt. Impemba had personally been involved

in the investigation and arrest of Perez for narcotics

distribution. A small baggie appearing to contain crack cocaine

and sized for an individual sale was found on the floor between

the driver's seat and the driver's side door. Based on their

training and experience, it was reasonable for the officers to

believe that Perez had more than that single distribution-size

baggie and, given that the search of the vehicle and the pat frisk

did not turn up any more drugs, they were likely concealed on his

body. It was also reasonable for the officers to conclude that

Perez had dropped the baggie on the driver's side floor while

attempting to conceal drugs on his body. We have recognized before

the propensity for drug dealers to hide bags of drugs under their

clothing. See United States v. Rasberry,

(1st

5 The particularized reasonable suspicion standard of Barnes does not require particularized reasonable suspicion that weapons or contraband are to be found in a specific body cavity as opposed to other body cavities. See Barnes,

(stating that "prior to conducting a visual body cavity search, we require a more particularized suspicion that contraband is concealed," but not stating that the suspicion must be with respect to a specific body cavity).

- 15 - Cir. 2018) ("This suspicion [that the defendant was concealing

drugs in his underwear] was heightened by [the officer]'s knowledge

that drug dealers frequently conceal drugs in their

undergarments."); United States v. Cofield,

, 337 n.2

(1st Cir. 2004) (noting that, in discussing the reasonableness of

a strip search, "[i]t is common knowledge that controlled

substances often are concealed on the person of users and dealers

alike" (alteration in original) (quoting Burns v. Loranger,

(1st Cir. 1990))). Perez was found with a few

hundred dollars, several cell phones in the vehicle, and a

passenger carrying a firearm with an obliterated serial number,

all of which were also indicative of street-level drug dealing and

reaffirmed the suspicion that Perez likely had more drugs

concealed.

Moreover, Perez had driven in an evasive manner while

being followed by police, Perez and Alicea had been observed

quickly exchanging cell phones as the officers approached the

Mercedes, and Perez's passenger had fled the scene while attempting

to discard a firearm, all of which supported reasonable suspicion

of attempts to conceal evidence of criminal activity. Taking the

booking officers' observations, knowledge, and experience

collectively, it is apparent from the record that they collectively

had particularized reasonable suspicion to justify the visual body

cavity search for drugs. See Barnes,

(explaining

- 16 - that reasonable suspicion can be established by the "collective

knowledge" of the officers involved in the investigation).

It is true that in Barnes we held that the government

had not shown adequate evidence that the officers had

particularized reasonable suspicion to conduct a visual body

cavity search, despite a tip from an informant that the defendant

was known to conceal drugs between his buttocks.

(remanding to determine whether the informant's tip had sufficient

indicia of reliability to support particularized reasonable

suspicion). Perez argues that because the booking officers here

lacked even a tip or other information indicating that Perez had

a reputation for concealing drugs in his buttocks, they could not

possibly have had the sort of particularized and individualized

suspicion necessary for a visual body cavity search. He also

argues that under Barnes, particularized reasonable suspicion for

a visual body cavity search is not satisfied by the mere fact that

the arrestee has a history of drug-related offenses or that some

drugs were found in the vehicle the arrestee was driving.

To the extent that Perez suggests officers can establish

particularized reasonable suspicion only where they have a tip or

other information indicating that the suspect has a reputation for

concealing drugs in his buttocks, that argument is wrong. A

determination of particularized reasonable suspicion is based on

the totality of the circumstances known to the investigating

- 17 - officers at the time of the search, and our cases establish that

this determination must be made on a case-by-case basis. See

Barnes,

("[I]n evaluating whether the suspicion was

reasonable, we 'look at the totality of the circumstances of each

case to see whether the detaining officer ha[d] a particularized

and objective basis for suspecting legal wrongdoing.'" (second

alteration in original) (emphasis added) (quoting Arvizu,

)); see also Rasberry,

(focusing on the

particular facts of the case); Swain,

(same).

There are facts here that were not present in Barnes,

including the presence of a distribution-size baggie of suspected

drugs on the floor next to the driver's seat and the indications

that Perez and his passenger were attempting to conceal evidence,

which support a particularized and individualized suspicion that

Perez was concealing more drugs on his body. Cf. Barnes,

(explaining that the officers discovered a large bag of

marijuana and small bag of marijuana in the trunk of the vehicle,

but no bags of drugs in the driver's compartment and reciting no

facts indicating an attempt to conceal evidence). The officers

were not relying solely on the mere presence of suspected drugs in

the vehicle or Perez's history of drug dealing to justify the

visual body cavity search. Once the officers had particularized

reasonable suspicion that Perez was concealing drugs on his body,

they were not required to have a more particularized suspicion

- 18 - that Perez was or had a reputation for concealing drugs in his

buttocks or some other specific body area. See

.

III.

We affirm the district court's denial of Perez's motion

to suppress, but as to the visual body cavity search, we do so for

reasons different than the district court.

Affirmed.

-Concurring Opinion Follows-

- 19 - TORRUELLA, Circuit Judge (Concurring). I write

separately to emphasize "the severe if not gross interference with

a person's privacy that occurs when guards conduct a visual

inspection of body cavities." Blackburn v. Snow,

(1st Cir. 1985) (quoting Arruda v. Fair,

(1st Cir. 1983)); see also Roberts v. Rhode Island,

(1st Cir. 2001) ("[W]e consider such searches an 'extreme

intrusion' on personal privacy and 'an offense to the dignity of

the individual.'" (quoting Wood v. Clemons,

(1st

Cir. 1996))). "Even when carried out in a respectful manner, and

even absent any physical touching, such searches are inherently

harmful, humiliating, and degrading." Florence v. Bd. of Chosen

Freeholders,

(2012) (Breyer, J., dissenting)

(citation omitted); see

(Alito, J., concurring)

(describing strip and body cavity searches as "undoubtedly

humiliating and deeply offensive to many"). Accordingly, we have

required "a more particularized suspicion that contraband is

concealed" for body cavity searches than for strip searches.

United States v. Barnes,

(1st Cir. 2007); see

Florence,

(Breyer, J., dissenting) (explaining

that searches involving "close observation of the private areas of

a person's body . . . constitute a far more serious invasion of

that person's privacy" than do searches involving that person

"undressing and taking a shower" under supervision).

- 20 - "[W]hen 'privacy-related concerns are weighty enough' a

'search may require a warrant, notwithstanding the diminished

expectations of privacy of [an] arrestee.'" Riley v. California,

, 392 (2014) (quoting Maryland v. King,

(2013)). Given the intrusiveness of body cavity searches,

absent exigency, I believe a judicial order ought to be obtained

before such searches are conducted. See Birchfield v. North

Dakota,

(2016) (Sotomayor, J., concurring in

part) ("Both before and after a person has been arrested, warrants

are the usual safeguard against unreasonable searches . . . .");

cf. Florence,

(Alito, J., concurring) ("The Court

does not address whether it is always reasonable, without regard

to the offense or the reason for detention, to strip search an

arrestee before the arrestee's detention has been reviewed by a

judicial officer.");

at 354–55 (Breyer, J., dissenting)

(noting the same).

Nevertheless, because the majority's decision comports

with our precedent that "the reasonable suspicion standard governs

strip and visual body cavity searches in the arrestee context,"

Swain v. Spinney,

(1st Cir. 1997), and that the

circumstances of this case provide particularized reasonable

suspicion, see Barnes, 506 F.3d at 62–64, I join the decision.

- 21 -