Search and seizure – Strip search – Body cavity

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Where a plastic bag containing heroin and cocaine was found during a lawful strip search, the removal by the police of the plastic bag was within the scope of the strip search and did not need the extra showing required for a manual body cavity search.

A denial of the defendant’s motion to suppress the drug evidence is affirmed.

“During 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, 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. …

“A manual body cavity search occurs where there is touching, probing, or manipulation of a body cavity, such as the anal or vaginal cavities. …

“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 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.’ …

“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 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. … 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. … 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. …

“… 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. …”

Commonwealth v. Jeannis (Lawyers Weekly No. 10-099-19) (19 pages) (Gants, C.J.) Motion to suppress heard by Tochka, J., and cases tried before Yessayan, J., in Superior Court. Ian MacLean for the commonwealth; Jane Larmon White for the defendant (Docket No. SJC-12630) (May 24, 2019).

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