Commonwealth v. Jeannis ( 2019 )

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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, 410 Mass. 878, 888 (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, 472 Mass. 429, 431
(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
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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, 93 Mass. App. Ct. 856,
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." Id. at 859. Because the item was
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presumptively "seiz[ed] from within a body cavity," id. at 861,
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." Id. at 862. 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,
429 Mass. 403, 405 (1999). See also Commonwealth v. Catanzaro,
441 Mass. 46, 50 (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
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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, 462 Mass. 334, 342 (2012).
A visual body cavity search occurs when a strip search "extends
to a visual inspection of the anal and genital areas." Thomas,
429 Mass. at 407 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, 443 Mass.
548, 553 (2005), citing Thomas, 429 Mass. at 408-409 & n.5. Yet
we recognize "that such searches are, in some cases, necessary
to serve legitimate ends of law enforcement." Prophete, supra.
The same constitutional standards apply to both strip
searches and visual body cavity searches. Thomas, 429 Mass. at
408. 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
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the police reasonably could not expect to discover it without
exposing or inspecting an intimate area of the defendant's body.
See Morales, 462 Mass. at 339, quoting Prophete, 443 Mass. at
554 ("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,
481 Mass. 633, 637 (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, 462 Mass. at 342. See Agogo, 481 Mass. at 638. "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." Morales, supra at 343. "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, 429 Mass. at 409 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." Id.
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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, 90 Mass. App. Ct.
622, 629 (2016). See also Thomas, 429 Mass. at 408. See
generally Simonitsch, Visual Body Cavity Searches Incident to
Arrest: Validity Under the Fourth Amendment, 54 U. Miami L.
Rev. 665, 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, 410 Mass. at 888, 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." Id. 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,
462 Mass. at 343-344.
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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).
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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, 90 Mass. App. Ct. at
629.
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).
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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
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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, 804
F.3d 954, 959-960 (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
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of particularized need supported by a high degree of probable
cause, Rodriques, 410 Mass. at 888, but also to ensure that any
such search is conducted in a safe, reasonable manner under
sanitary conditions by a trained medical professional. See
Fowlkes, supra at 967 (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, 366 Mass. 51,
57 (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.
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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.
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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, 458 Mass. 295, 302 (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, 752 F.3d 1206, 1215 (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, 10 N.Y.3d 303, 311, cert. denied, 555 U.S. 938(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 . . .
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cannot be accomplished without a warrant" unless exigent
circumstances exist. In State v. Barnes, 215 Ariz. 279, 281
(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 Hall, supra at 306,
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 Barnes, supra at 280-281, 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.