Court tosses drugs as evidence because while police had the right to do a strip search to find them, they shouldn't have done it on the side of a busy Dorchester street
The Massachusetts Appeals Court ruled today that Suffolk County prosecutors can't use the drugs police say they found hidden in a packet under a man's genitals as evidence against him, because the officers conducted their strip search on the side of Norfolk Street in broad daylight rather than first taking him to a more private area, such as the local police station.
According to the court's summary of the case, two Boston officers were patrolling Norfolk Street near Codman Square around 2:40 p.m. on Jan. 15, 2021, when they noticed a car with what seemed to be excessive tinting. They queried the car's plates and found the inspection sticker was expired and the registration canceled, so they pulled the driver over.
Then they ordered him out because he only had a learner's permit and his passenger didn't have a license - in violation of a regulation that people with learner's permits have to always have somebody with a valid license in the car. One officer the pat frisked the man, and "felt a foreign object that he did not believe to be part of the defendant's body and that was larger than a golf ball and hard."
The officer did not suspect the foreign object was a weapon. Rather, based on his training and experience, he suspected that the object was narcotics. The officer questioned the defendant about the object; the defendant claimed it was only his genitals. Another officer arrived on scene and joined the frisking of the defendant's groin area. A steady stream of traffic drove by during the frisking.
The officer then brought the defendant behind the sedan, pulled out a pair of gloves, and put them on. As the search of the defendant's groin continued, the defendant verbally expressed that he was "anxious." After further frisking outside the defendant's pants, the defendant was handcuffed; the officer then moved and positioned the defendant against the side of the police cruiser so that the defendant was facing the sidewalk. It was daytime. The officer proceeded to pull aside the waistbands of the defendant's two pairs of pants and one pair of underwear and inspected the defendant's genitals. Based on the body-worn camera footage, which was admitted into evidence and viewed by the judge, the officer was unable to identify the object through his visual inspection, and he continued to frisk the defendant's groin for approximately ten seconds, asking "what [was] underneath" the defendant's genitals. Finally, the officer placed his hand inside the defendant's underwear and retrieved a plastic bag containing suspected narcotics. The recording shows that while the defendant was largely obscured from the view of oncoming traffic by the cruiser, the front of his body was fully visible to passersby on the sidewalk as well as anyone looking out a window from the nearby residential buildings and a family daycare. Indeed, two people walked by during the patfrisk, and later, a woman passed by and looked toward the officer as he pulled the defendant's waistbands aside to view his genitals.
The court began its legal analysis by stating there's no question the officers had the right to do a strip search based on what the officer felt while patting the man down, but, jeez, guys, in broad daylight on the side of a busy street? No, that's not right and violated the man's right against unreasonable search and seizure, the court concluded.
Before getting to the core of their argument, though, the justices first had to dispose of the way a Suffolk Superior Court judge sided with prosecutors and said the evidence could be used against the man and with an argument by the Suffolk County District Attorney's office that what the officers did was not actually a "strip" search.
The court noted that in ruling the public strip search was acceptable, the lower-court judge relied on a dissent in a 2016 Supreme Judicial Court strip-search ruling in which the majority of the state's highest court actually ruled against use of evidence in a similar search. At least in Massachusetts, the appeals court ruled, judges have to be bound by majority decisions of the SJC and cannot use a dissent as the basis of a ruling. The justices also ruled against the DA's argument, saying that reaching into a man's underwear and feeling around his genitals most definitely is a strip search.
The court continued that because public strip searches are, by their very nature, constitutionally unreasonable barring some emergency or "exigent" reason, the packet of drugs cannot be used against the man because there were no immediate threats to either the public or the officers that called for a public strip search - rather than putting the man in a cruiser for transport to a more private place:
A strip search is unreasonable where, absent exigent circumstances, it is conducted in public. ... A member of the public need not in fact witness the search; it is the location of the search itself that drives the inquiry. In [the earlier SJC case], as here, an officer had dispelled safety concerns and had felt an object in the defendant's genital area that he knew was not a weapon. There [in the earlier case], police officers took a defendant into an alleyway in between two nearby, residential buildings and shined a flashlight on his buttocks. The majority held the search was an unreasonable strip search where there was the possibility that a member of the public could have witnessed it. ...
Here, the search occurred on a busy public street adjacent to a sidewalk and no exigency existed. While officers attempted to block the defendant on one side with a cruiser, the front of his body was exposed to multiple residential buildings and a preschool. Indeed, the body-worn camera footage shows a pedestrian walk past the scene during the strip search, a car's width away.
Further, the officer did not believe the object he felt was a weapon. There was no indication that the defendant could not be safely transported to a station or that he could not have been safely detained and searched out of the eye of the public. Given the strong preference for strip searches to be conducted in private, see Morales, 462 Mass. at 342-343, and the lack of a sufficient demonstration of exigency, the public strip search was unreasonable.
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Taint that a shame.
Sounds like the Court gave the dude a gift. I mean, aren't you supposed to be kind of embarrassed and ashamed to be caught with a wad of narcotics in your nether regions? Good for the perp, I guess, but I don't think the search was unreasonable enough to throw out the evidence
[and reverse the conviction].(h/t to 02132 for the correction -- this was only a pretrial motion)
I do
I do.
Especially in a state where exposing yourself.. even accidently.. can get you on a sex offender registry. I think the police did this guy wrong.
Yeah drug dealer aside, there is due process that wasn't followed here and he had his meat and potatoes exposed on a public sidewalk with people walking by. That's not right. At least taken them to an alley to do that.. or back to the station.
Tbh the whole thing feels like "stop and frisk" but the driver was drive a car with expired tags and a learners permit, so there was justification there.
The one thing that gets me is its clear that the need to search him was for drugs, not for weapons. If it was a weapon, then its an immediate public safety issue and should be swifty addressed. But drugs, no.. do that search in a secluded area. But then again, if it was a gun, I doubt it would be hidden under his potatoes. (and I'd sure love to meet a guy who can old up a gun with them!) So thus, no need to totally get them naked on Norfolk Street for that.
Yeah double standard.. drugs vs guns is the key here. It just seems like the cops were 'going in for the whole banana" and wanted to arrest him for more than tinted windows, expired tags, and a learners permit. They suspected drugs and ensured they got them.. not thinking that they were exposing him to the public at the same time. Tsk tsk.
So yeah I agree with the ruling. The cops were a bit out of line here but I also agree the guy got a 'get out of jail' free card handed to them.
At least taken them to an
Thing is, if you read the ruling, the judge cited a case Commonwealth v. Amado, in which the cops did in fact take Amado into an alley, and at night to boot, and the majority of the court still found the search unreasonable.
Then the judge in the current case decided to apply the dissenting opinion in Amado, but as the ruling on this appeal effectively put it, that's not how the common law works.
What?
It's a pre-trial motion. No conviction was thrown out because no case has yet been heard.
Also, good to know who around here supports cops doing public strip searches for nonviolent offenses
Thanks, missed that.
Jumped the gun on the conviction part, but if the evidence is gone, presumably so is the entire case.
Very unreasonable
Not acceptable to strip someone in public and feel them up because you *think* they may have drugs.
All fun and games until the cops decide to do it to you - or your mother, daughter, son, etc. Then you would be (legitimately) screaming about being raped - because that is pretty much what this is or what would be legalized if judges didn't shut this down.
Exactly this!
I took public health and mental health law courses while studying for my MPH - one of the things I really enjoyed was learning about how law is constantly building upon itself, using precedent as one of the methods of guidance in determining how society should function. This defendant was in violation of the law for possession of controlled substances AND his constitutional right to protection from unreasonable search and seizure was violated in the process of determining and confirming this. Who wants to live in a society where you can be legally forced to submit to the violation of your most basic privacy just because you are presumed to be doing something illegal? I certainly do not.
Good call by the court, good post by Adam, good comment by @SwirlyGrrl. Good job everybody! (Except the po-po)
TOTALLY Unreasonable
You don't get to strip search someone on the sidewalk. Period. It is completely unreasonable. Bring him into the station, into an interrogation room or similar, and get to it... but no, the sidewalk is not the place for that, day or night.
Unreal though that the kid is holding something substantial while driving around unregistered, no sticker, illegal tint, on a permit without a licensed driver in the vehicle. Cops LOVE to pull people over for all these minor things, particularly tinted windows, to start their fishing expeditions. If you ride dirty, you need to get rid of the tint and have a legal ride.
Don't worry, he'll be in jail soon enough. He's WAY too stupid to remain free for very long.
Sexual assault in broad
Sexual assault in broad daylight
There was a case in Wareham where this kind of thing was done to an underage teenage girl.
https://www.rawstory.com/2010/10/strip-search-victim-mass-gop-candidate-...
It is not acceptable.leaves too much opportunity for abuse.
It's common for people engaged
In illegal activity to hide contraband in their underwear. Another example is homeless who shoplift. They'll wear baggy pants with inside pockets to stash stuff. And also stash stuff in their tight fitting boxer briefs. And, of course, drugs, even cash.
I was in a supermarket recently and noticed an obviously homeless young man roaming aimlessly inside the store wearing baggy jeans with multiple torn holes. Later heard him screaming "Don't touch my d*ck!". He was being frisked as he attempted to leave the store with the booty he boosted stuffed inside his jeans and nether region. He accused the guy frisking him of being a "f*cking homo!"
That's nice dear
Nobody said that such things don't happen or don't need attention.
What the judge and others are saying that doing this in public on pretense is completely unacceptable. They should have brought him in, gotten a warrant if needed, and then searched him in a private space.
See Wareham story referenced above. Letting security creeps, rent-a-cops and cops have a free hand to strip people and sexually assault them on mere pretense is license to rape, and that license is applied frequently. Albany NY had a huge issue with this sort of sexual abuse by cops on pretense.
Like I said - all fun and games until a security detail decides that "all people we think look like shoplifters must be shoplifting and so we get to digitally rape them in public because its a perk of the job" and it is your turn. Or this starts being done to any young woman or man they target. Because that is exactly what happens and has happened with police departments, school administrators, security goons, etc. where nobody stopped it.
Not sure this comment is acceptable here...
That was a dick move by the Police.
But if they thought a judge
But if they thought a judge would allow this, they must be nuts.
For all the lawyers/ legal scholars on here
I feel like this is the court basically saying, "This ain't the Fifth Circuit, guys. Get it together."
And for those who don't know, the Fifth Circuit is packed with Trump appointees that have become one of the out of control courts. They rely heavily on dissents to justify overturning precedents.