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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Morales, 462 Mass. 334 (2012)

CONTRIBUTING EDITOR: MATTHEW GRAZIO I. Procedural History

A grand jury indicted the defendant, Carlos Morales, on charges of possession of a class A controlled substance with intent to distribute, being a habitual offender, assault and battery on a police officer, and resisting arrest. Prior to trial, Defendant filed a motion to suppress the drugs seized from his person. After an evidentiary hearing, a Superior Court Judge granted Defendants motion. A single Justice of the Supreme Judicial Court (SJC) granted the Commonwealth leave to file an interlocutory appeal. The appeal was then transferred to the SJCand the suppression order was affirmed. II. Facts In early November 2009, Detective Daniel Desmarais was in contact with a confidential informant (CI) who informed Desmarias that Defendant was selling heroin out of his tan Ford Explorer, and that the CI had purchased heroin from Defendant several times during the previous month.1 The CI had previous dealings with Desmarias and had demonstrated reliability in the past.2 Desmarias learned from the CI that Defendant was buying his drugs from an unknown individual who resided at 22 Fetherston Avenue in Lowell.3 Desmarias continued his investigation and throughout early November was able to corroborate the information he obtained from the CI.4 On November 12, 2009, Desmarias followed Defendant in an unmarked police cruiser with Detective Lavoie following in his own police car.5 After ob1 2 3 4 5

Commonwealth v. Morales, 462 Mass. 334, 335-336 (2012). Id. Id. at 336. Id. Id.

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serving defendant drive to 22 Fetherston Avenuethe alleged drug suppliers homeand seeing him briefly enter the house, the Detectives followed Defendant to his residence.6 Defendant then recognized the police officers and sped away in his vehiclesubsequently committing various traffic infractions.7 A patrol officer in the vicinity saw the car and pulled Defendant over.8 The officer observed Defendant, while in his vehicle, leaning to the right and moving his hands behind his torsopresumably concealing something between his torso and clothing.9 Defendant was then taken from the car, with the help of Desmarias who had arrived on scene, and given a patdown of his outer clothing.10 During this pat-down Desmarias felt a lump between Defendants buttocks.11 This raised suspicion that Defendant was concealing drugs and Desmarias took Defendant to a more secluded area by a nearby house.12 Desmarias pulled back Defendants shorts and observed a clear plastic bag containing a tan powder wedged between defendants buttocks.13 Defendant turned to run, a struggle ensued, and eventually Defendant was subdued and handcuffed on the sidewalk.14 Defendant reached his hand down his shorts and, in response, Desmarias pulled back Defendants shorts, exposing his buttocks to public view, and retrieved the bag.15 Defendants father then arrived and saw his son lying face down on the sidewalk with his buttocks exposed.16 III. Issues Presented17 1. Was the defendant strip searched within the meaning of the Federal and State Constitutions? 2. Did the manner in which this search occurred contravene the reasonableness requirement imposed by the Fourth Amendment to the Federal Constitution and Article 14 of the Massachusetts Declaration of Rights?

Id. Commonwealth v. Morales, supra at 336-337. 8 Id. at 337. 9 Id. 10 Id. 11 Id. 12 Id. 13 Commonwealth v. Morales, supra at 338. 14 Id. 15 Id. 16 Id. 17 The SJC did not consider whether there was sufficient probable cause to arrest the defendant for possession of drugs and therefore assumed that the officers were justified in conducting a search of defendants person incident to that arrest. Id. at 339.
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IV. Holdings and Reasoning 1. The Commonwealth argued that Desmariass actions did not constitute a strip search and therefore his actions were permissible because the search was conducted incident to the defendants arrest.18 The SJC reaffirmed their definition of a strip search announced in Commonwealth v. Prophete: a strip search occurs where the detainee is commanded to remove the last layer of his or her clothing.19 The SJC also took guidance from the U.S. Supreme Court which recently noted that a strip search can occur in a variety of circumstances including, but not limited to, a visual inspection of a de-clothed detainee.20 A strip search need not include the touching of unclothed areas by the inspecting officer.21 A defendant need not be completely naked, as the Commonwealth contends, to achieve the status of a strip search.22 Viewing this case in light of these definitions, the SJC held that Desmariass action of lifting Defendants shorts and publically exposing his buttocks was a strip search.23 2. Because all searches must be conducted in a reasonable manner, the SJC next determined when and in what circumstances a strip search is reasonable.24 The SJC looked to cases construing the reasonableness of strip searches and described factors to be considered. These factors include: (1) whether the search was conducted in a private room; (2) whether there were exigent circumstances justifying and obviating the need for privacy; (3) whether the officers physically touched the detainee or conducted a visual strip searchthe latter tending to aid in establishing reasonableness; (4) whether the officer conducting the search is of the same gender; and (5) an overarching concern to protect the health and dignity of the detainee. Each case should be considered on its specific facts and circumstances, but the above factors should be considered in determining the reasonableness of a visual body cavity or strip search under the Fourth Amendment and Article 14.25 In this case there were no exigent circumstances justifying the search.

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Id. at 340. Commonwealth v. Morales, supra at 340, quoting Commonwealth v. Prophete, supra at

557.
20 Id. at 340-341, citing Florence v. Chosen Freeholders of the County of Burlington, 132 S. Ct. 1510, 1513, 1515 (2012). 21

Id. at 341, citing Florence v. Chosen Freeholders of the County of Burlington, supra at

1515. Id. at 341-342. Id. 24 The traditional reasonableness inquiry includes the scope of the intrusion, the manner in which the search is conducted, and the place where the search takes place. Bell v. Wolfish, 441 U.S. 520, 559 (1979).
23 25 22

Commonwealth v. Morales, supra at 343.

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Defendant did not have a weapon, was handcuffed on the ground, surrounded by officers so that he could not flee, and could not have destroyed evidence. Absent exigent circumstances Defendant should have been taken to a private room to avoid the humiliation of the public exposure of his buttocks.26 In the circumstances the location of this search was unreasonable.27

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Id. at 343-344. Id. at 344.