Commonwealth v. Amado

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SJC-11914
COMMONWEALTH vs. ADERITO P. AMADO.

Plymouth. December 8, 2015. - April 19, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Controlled Substances. Search and Seizure, Protective frisk,
Probable cause, Body examination. Constitutional Law,
Search and seizure, Probable cause. Probable Cause.
Practice, Criminal, Motion to suppress.

Indictment found and returned in the Superior Court
Department on July 18, 2011.

A pretrial motion to suppress evidence was heard by
Frank M. Gaziano, J., and the case was tried before Merita A.
Hopkins, J.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Susan E. Taylor for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.

HINES, J. After a jury trial, the defendant, Aderito

Amado, was convicted of trafficking in fourteen grams or more of
 2

cocaine, in violation of G. L. c. 94C, § 32E (b). The Appeals

Court affirmed the conviction in an unpublished memorandum and

order issued pursuant to its rule 1:28. We granted the

defendant's application for further appellate review to consider

whether the search of the defendant's genital area during a

patfrisk for weapons was a strip search and, if so, whether it

satisfied the probable cause requirement articulated in

Commonwealth v. Morales, 462 Mass. 334, 342 (2012). We conclude

that although the police properly initiated the motor vehicle

stop, the subsequent search, which involved pulling the

defendant's clothing away from his body, shining a flashlight

inside the clothing, and removing an object from his buttocks,

was an unlawful strip search on two grounds. First, the search

of the defendant's buttocks area exceeded the permissible scope

of a patfrisk for weapons where it occurred after the police had

dispelled the safety concerns prompting the exit order and

patfrisk. Second, the search met the criteria of a strip search

as we have defined it, and the search was unlawful because the

police lacked probable cause to believe the defendant was

concealing drugs on his person and it was otherwise

unreasonable. Thus, the judge erred in denying the motion to

suppress the evidence obtained during the search. We reverse

the denial of the motion to suppress and remand the matter to

the Superior Court for further proceedings.
 3

1. Motion to suppress. a. Background. On June 2, 2011,

at approximately 9:40 P.M., four officers of the Brockton police

department were on patrol on North Main Street, driving in an

unmarked vehicle. They observed a green Acura automobile

pulling out of a nearby gasoline station. At least one of the

officers recognized the defendant as the front seat passenger

and recalled that he had been arrested a few weeks earlier for

unlawful possession of a firearm.1 The police made a U-turn in

the gasoline station and followed the automobile. One of the

officers noticed that the registration plate was not properly

affixed. The driver of the automobile made two quick turns in

what appeared to be an effort to avoid police scrutiny. The

police activated their blue lights and pulled over the

automobile. All four of the police officers got out of their

vehicle and approached the automobile with two officers on each

side. As the police officers approached, one of them observed

the defendant reach his left arm behind his body. One of the

officers, Detective George Almeida, alerted the others, stating,

"We got movement up front." A second officer observed the

defendant bring his left arm back down to the front of his body.

One of the police officers requested a driver's license and

registration from the operator of the automobile; another

1
Aderito Amado had been arrested after the police searched
a vehicle and found a handgun near the passenger seat where he
was sitting.
 4

illuminated the passenger compartment with his flashlight. The

officers noted that despite "open[]" and "engag[ing]"

communications in the past, the defendant on this occasion was

extremely nervous; he avoided eye contact, his hands trembled,

and he was breathing rapidly. Concerned for his safety,

Detective Brian Donahue ordered the defendant out of the

automobile. As the defendant emerged, Donahue did not observe

any bulges or protrusions in the defendant's clothing suggesting

a weapon. Donahue then conducted a patfrisk, felt what he

surmised to be a roll of cash in the defendant's front pocket,

and asked for the amount. The defendant responded that the roll

contained $500 in cash. When Donahue continued the patfrisk by

running his hand up the defendant's inner thigh, he felt an

object behind the defendant's testicles. Based on its shape and

feel, Detective Donahue did not suspect that the object was a

gun. He called out to the other officers that the defendant was

"jocking" something.2 The defendant continuously denied carrying

anything. Another officer pulled back the waistband of the

defendant's shorts and underwear to view his bare backside. The

detectives observed a plastic bag protruding from the

defendant's buttocks. At the sight of the bag, the police

handcuffed the defendant who declined to remove the bag himself.

2
"Jocking" refers to a suspect's attempt to hide narcotics
in the buttocks area.
 5

A police supervisor arrived, and he and Donahue took the

defendant between two nearby buildings, where they once again

pulled out the defendant's shorts and underwear, this time

shining a flashlight on his bare buttocks. The contents of the

bag were not visible, but the officers ascertained that the bag

was not inside the defendant's rectum. The police supervisor

pulled the bag out from the defendant's buttocks. The drug

laboratory later determined that the bag contained approximately

twenty-four grams of "crack" cocaine.

The defendant filed a pretrial motion to suppress the

plastic bag and its contents, claiming that the police (1)

illegally stopped the automobile, (2) lacked adequate grounds to

issue an exit order, and (3) improperly searched his person.

After a hearing, the judge denied the defendant's motion to

suppress the bag and its contents, ruling that (1) the police

had the authority to stop the automobile based on the defective

registration plate light; (2) the exit order was justified by

safety concerns, including the high crime area of the stop as

well as the defendant's recent arrest and movements within the

automobile; and (3) because the exposure of the defendant's

buttocks did not occur while the defendant was naked, it was not

a strip search under Commonwealth v. Prophete, 443 Mass. 548,
 6

557 (2005).3 Rejecting the defendant's claims, the motion judge

concluded that the police, "[h]aving lawfully discovered the

highly incriminating plastic baggies, . . . possessed probable

cause to believe that it contained narcotics and to seize the

narcotics in a noninvasive manner."

The defendant reprises the argument he made in his motion

to suppress the narcotics, namely that the exit order following

a civil motor vehicle infraction and a patfrisk reaching his

testicles were unreasonable. He maintains that after the

patfrisk, the police conducted a strip search without probable

cause. The Commonwealth counters that the defendant waived his

objections to the exit order and patfrisk because he did not

pursue these issues in the Appeals Court. Instead, the

Commonwealth urges this court to limit the inquiry to a

determination whether pulling the defendant's shorts and

underwear away from his body constituted a strip search under

Morales, 462 Mass. at 342, and argues that the search was not a

strip search or, in the alternative, that the search was

reasonable because it was conducted away from the road and only

the officers viewed the defendant's bare skin.

3
We have since determined that a strip search occurs when
the last layer of clothing is moved -- not necessarily removed
-- to expose an intimate area. See Commonwealth v. Morales, 462
Mass. 334, 342 (2012). The judge did not have the benefit of
this decision at the time of his ruling on the motion to
suppress.
 7

b. Discussion. As an initial matter, we agree that the

defendant failed to assert a specific challenge to the validity

of the exit order and the scope of the patfrisk in the Appeals

Court. Nonetheless, we address the issues as our authority to

do so is derived from two principles of appellate review.

First, an inquiry into the propriety of the exit order and the

scope of the protective search is appropriate and necessary.

The justification for the exit order necessarily is relevant to

and constrains the scope of the subsequent patfrisk and the

ensuing body search. Commonwealth v. Silva, 366 Mass. 402, 407

(1974), quoting Terry v. Ohio, 392 U.S. 1, 19 (1968) ("search

must be 'strictly tied to and justified by the circumstances

which rendered its initiation permissible'"). Second, where an

issue is raised below, we review claims for error creating a

substantial risk of a miscarriage of justice. See Commonwealth

v. Arzola, 470 Mass. 809, 814 (2015), cert. denied, 136 S. Ct.

792 (2016). Thus, we now review both claims as a necessary

predicate to our determination of the central issue underlying

this appeal: whether the search of the defendant's buttocks

area was reasonable.

"In reviewing a ruling on a motion to suppress evidence, we

accept the judge's subsidiary findings of fact absent clear

error and leave to the judge the responsibility of determining

the weight and credibility to be given . . . testimony presented
 8

at the motion hearing" (citation omitted). Commonwealth v.

Wilson, 441 Mass. 390, 393 (2004). "We review independently the

application of constitutional principles to the facts found."

Id.

i. The stop. "Where the police have observed a traffic

violation, they are warranted in stopping a vehicle."

Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting

Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). The stop of

the vehicle cannot last "longer than reasonably necessary to

effectuate the purpose of the stop" (citation omitted).

Commonwealth v. Cruz, 459 Mass. 459, 465 (2011). Here, the

officers initially pursued the automobile because they

identified the defendant as a passenger and wanted to

investigate further based on his prior arrest for possession of

a firearm. During the pursuit, it happened that the police

developed a proper basis for the stop once they noticed the

vehicle's unlit registration plate. Notwithstanding the

pretextual basis for the stop, our law validates such police

conduct so long as it is justified on independent grounds.4 See

4
Such stops, though lawful under our current jurisprudence,
implicate important policy concerns about racial profiling in
encounters between the police and persons of color. We leave to
another day consideration whether and how police authority
should be limited when a stop is clearly pretextual.
 9

Santana, supra at 209 (vehicle stops reviewed under police

authority not pretext).

ii. Exit order and patfrisk. Although exit orders issued

to passengers during a routine traffic stop are permitted by the

Fourth Amendment to the United States Constitution, Maryland v.

Wilson, 519 U.S. 408, 415 (1997), art. 14 of the Massachusetts

Declaration of the Rights offers greater protection to

passengers. Commonwealth v. Gonsalves, 429 Mass. 658, 660-661,

668 (1999).5 There are three situations in which police officers

may properly order a passenger from a validly stopped vehicle.

First, an exit order is proper when "a reasonably prudent man in

the policeman's position would be warranted in the belief that

the safety of the police or that of other persons was in

danger." Cruz, 459 Mass. at 466, quoting Gonsalves, supra at

661. Second, an exit order is proper if the officer developed a

reasonable suspicion based on specific and articulable facts

5
It is in this context that the defendant complains that he
was ordered from the vehicle "one minute" after the officers
requested the driver's license and registration. The defendant
suggests that the rapidity of the exit order undermines its
validity, but our cases have held that it is prolonged stops
that often exceed police authority. See Commonwealth v. Torres,
424 Mass. 153, 163 (1997) (continued detention of driver and
passenger impermissible where driver had produced license and
registration in satisfaction of the purpose of the stop). But
see Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 643-644
(2001) (continued detention of driver leading to plain view
observation of illegal weapons was permissible while awaiting
results of license and registration inquiry). Regardless, the
underlying issue remains the initiation and scope of the
defendant's search.
 10

that the passenger was engaged in, or about to engage in,

criminal activity apart from any offense committed by the

driver. Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997).

Third, an exit order is proper where the police are conducting a

search of the automobile on other grounds, such as the

automobile exception to the warrant requirement. Id. at 157.

Here, the motion judge articulated a confluence of factors

justifying an exit order based on safety: the defendant's

recent arrest for being in an automobile with an unlawful

firearm; the defendant's arm movements behind his back and then

forward again as the officers approached the automobile; the

defendant's lack of eye contact with Detective Donahue; the

defendant's rapid breathing; and the high crime area of the

stop. We discern no basis on which to disturb the judge's

factual findings or ruling that the exit order based on safety

concerns was justified. See Wilson, 441 Mass. at 393.

Accordingly, we turn to whether the scope of the subsequent

protective search was justified. See Commonwealth v. Torres,

433 Mass. 669, 675-676 (2001).

"The scope of a Terry search cannot be general; rather, it

is strictly tied to the circumstances that render its initiation

permissible." Wilson, 441 Mass. at 396, citing Commonwealth v.

Johnson, 413 Mass. 598, 601 (1992). Where an officer has issued

an exit order based on safety concerns, the officer may conduct
 11

a reasonable search for weapons in the absence of probable cause

to arrest. Terry v. Ohio, 392 U.S. at 25-26. Such protective

searches are reasonable if "confined to what is minimally

necessary to learn whether the suspect is armed and to disarm

him once the weapon is discovered." Commonwealth v. Almeida,

373 Mass. 266, 272 (1977). See Silva, 366 Mass. at 407-408.

"In most instances the search must be confined to a pat-down of

the outer clothing of the suspect." Id. at 408. However, under

the "plain feel" doctrine, an officer may seize contraband

discovered during a Terry-type frisk if the officer feels an

object whose contour or mass makes its identity immediately

known. Wilson, supra at 396-397, citing Minnesota v. Dickerson,

508 U.S. 366, 373, 375-377 (1993).

Here, the officer did not see any protrusions or suspicious

bulges in the defendant's athletic shorts. When the officer pat

frisked the defendant, he felt an object behind the defendant's

testicles that he knew was not a weapon.6 At this point, the

safety exigency justifying a search of the defendant's person

ended as there was no remaining suspicion that the defendant

possessed a weapon. Silva, 366 Mass. at 408 ("Only after the

6
The Commonwealth asserts that the testicles and
surrounding area cannot be declared search-free zones because
small weapons can be hidden in the groin region. There is no
need to make such a declaration here, and such a declaration
would be inapplicable, because the officer knew the bulge was
not a weapon.
 12

pat-down gives indication that a weapon is present do the police

have the privilege to search further"). Cf. Commonwealth v.

Blevines, 438 Mass. 604, 608 (2003) (officer justified in

retrieving "hard object" felt during patfrisk to dispel concern

it was weapon).

Nor was a further search warranted under the "plain feel"

doctrine, because the officer was unable to identify the

contraband nature of the object by touch alone. Wilson, 441

Mass. at 397 ("plain feel" doctrine prohibits general

exploratory search where contraband not immediately apparent on

touch). Although the presence of an object behind the

defendant's testicles was certainly suspicious, and it may have

justified additional investigation, any further searches of the

defendant's person required probable cause that the defendant

was committing an offense. See Morales, 462 Mass. at 339.

iii. The strip search. In Morales, 462 Mass. at 342, we

determined that a strip search occurs "when a detainee remains

partially clothed, but in circumstances during which 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." Morales, which was decided after the

motion to suppress hearing in this case, see note 3, supra,

clarified the existing "definition of a strip search as one in

which a detainee is commanded to remove the last layer of his or
 13

her clothing." Prophete, 443 Mass. at 557. In Morales, we

explained that, although complete nakedness was a determining

factor in the strip search at issue in Prophete, total undress

is not necessary to effect a strip search. Morales, supra.

Here, the trial judge did not address whether the initial

pulling back of the defendant's clothing during the patfrisk was

a strip search. The Appeals Court assumed, without deciding,

that it was a strip search requiring probable cause. As no

evidence was confiscated from this initial search, we do not

address the matter. However, the second pulling back of the

defendant's clothing was different; it constituted a strip

search. In this case, when the police supervisor and the

arresting officer opened the waistband of the defendant's

underwear, exposed his bare skin, directed a flashlight on the

area, and then retrieved the object, the defendant's private

area was both viewed and exposed. In these circumstances, the

police conducted a strip search within the meaning of Morales.

462 Mass. at 342. We next determine whether probable cause

existed to justify the strip search.

Although the United States Supreme Court requires only

reasonable suspicion to initiate strip searches under the Fourth

Amendment, we have concluded that "probable cause is the

appropriate standard that must be met for a strip or visual body

cavity search to be constitutionally permissible" under art. 14.
 14

Prophete, 441 Mass. at 553, citing Commonwealth v. Thomas, 429

Mass. 403, 407-408 (1999). This is so because strip searches

"by their very nature are humiliating, demeaning, and terrifying

experiences that, without question, constitute a substantial

intrusion on one's personal privacy rights." Morales, 462 Mass.

at 339-340, quoting Prophete, supra. Such searches may precede

formal arrest as long as probable cause existed at the time the

search was made, independent of the results of the search.

Commonwealth v. Clermy, 421 Mass. 325, 330 (1995), citing

Johnson, 413 Mass. at 602.

Here, the trial judge found that the police developed

probable cause to arrest the defendant for a narcotics violation

during the patfrisk. As a result, the strip search was deemed a

search incident to arrest for a suspected drug offense. In

urging us to uphold these determinations, the Commonwealth

points to the Clermy case, where a defendant was arrested on an

outstanding motor vehicle warrant while sitting on the steps of

a known "crack" house in an area of high arrest rates for

narcotics violations. 421 Mass. at 326. After the patfrisk

revealed a paging device and sixty dollars in cash, the police

placed the defendant in a cruiser and conducted a second safety

search, which revealed a hard object in his genital area. Id.

at 327. The police retrieved a plastic prescription bottle

containing twenty-five pieces of "crack" cocaine. Id. On
 15

review, this court concluded that "[i]t is eminently reasonable

to infer that a prescription bottle carried in this manner would

contain contraband, and, most probably, a controlled substance."

Id. at 330-331.

Although probable cause may develop during a patfrisk, that

was not the case here. The arresting officer knew the object

was not a weapon but only suspected it was contraband, based on

his experience finding drugs concealed in the genital area.

Other than a suspicious but unknown object, there existed no

indication that the defendant was committing or about to commit

a drug offense. The defendant's arm movements and nervousness

prompted the protective patfrisk but suggested no connection to

suspected narcotics. He was ordered out of an automobile

stopped for a minor motor vehicle infraction, but not for

suspected drug activity. He was not the driver of the vehicle,

nor was there concern about operating while under the influence.

In addition, his clothing showed no visual clues indicating the

presence of narcotics on his person. Last, the vicinity of the

stop was not identified as an area known for drug trafficking.

In sum, the police officer's reasonable suspicion could not have

ripened into probable cause without the additional and

impermissible searching of the defendant's person that occurred

here. See Wilson, 441 Mass. at 396, citing Dickerson, 508 U.S.

at 378-379 ("If the officer must manipulate or otherwise further
 16

physically explore the concealed object in order to discern its

identity, then an unconstitutional search has occurred"). The

facts here placed the defendant in a probable cause "no man's

land" as far as the police were concerned, where the police had

reasonable suspicion to believe the defendant was engaged in

something illegal but did not have probable cause to believe

that the suspected illegal activity involved a drug offense.

The dissent posits that the police had probable cause to

believe that the defendant was "'jocking' illegal drugs"

essentially because "when a police officer feels a foreign

object in a male's groin or buttocks area, it is reasonable

inference that the object contains illegal drugs." Post at .

According to the dissent, that inference "grows stronger still

where the defendant twice denies that he is hiding anything,

even though it is plain that he is." Id. at . The specific

facts cited by the dissent in support of probable cause, of

course, are highly suspicious. However, what was required here

was that the information known to the police at the time of the

search connected the defendant to possession of illegal drugs,

the offense for which probable cause must be established. Where

the defendant is a passenger in a vehicle stopped on pretextual

grounds to investigate the defendant because of his past arrest

for possession of a firearm, that connection is missing.

Furthermore, that connection cannot be established by the police
 17

officer's experience with other detainees who in the past may

have secreted contraband in the groin area. That experience,

without information particular to the defendant's involvement

with contraband, did not transform the random encounter into

probable cause to believe this defendant was committing a drug

offense. There is no doubt that a denial, especially an absurd

one, may heighten an officer's suspicion. Yet heightened

suspicion is not probable cause, and we have rejected the

proposition that the police require only reasonable suspicion

before conducting a strip search. Thomas, 429 Mass. at 408.

Even where probable cause for a strip search exists, the

search must also be reasonably conducted. Morales, 462 Mass. at

342. Reasonableness is not a fixed concept. Rather it is

determined by considering "the scope of the particular

intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is

conducted." Thomas, 429 Mass. at 407, quoting Bell v. Wolfish,

441 U.S. 520, 559 (1979). See Bell, supra at 558 (finding

visual body cavity searches of inmates constitutional). In

Morales we determined that the unconsented-to police observation

and the public exposure of the defendant's intimate areas was

unreasonable as "a significant intrusion of the defendant's

privacy." 462 Mass. at 341. The search in this case failed to

meet the test of reasonableness for the same reason as in
 18

Morales. That is, the police conducted the search of the

defendant in a public location. Id. The attempt to mitigate

the public exposure by taking the defendant between two

buildings to remove the bag from his genital area did not render

the search private where any number of persons could have

observed the encounter.

The dissent challenges our view of the reasonableness of

the search, asserting that "[t]his is a far cry from the strip

search in the Morales case [462 Mass. at 338] where the

defendant was seen 'lying face down on the sidewalk with his

buttocks exposed.'" Post at . The distinction is that the

defendant's "buttocks and groin area were not exposed to any

passerby," and the officers attempted "to obtain greater

privacy." Id. at . The operative fact in Morales was the

public nature of what we deemed to be a strip search. That is

precisely what happened here, and reasonableness is not

established just because, as the dissent puts it, "[t]here is no

reason to believe that . . . anyone other than the searching

detectives could have seen the defendant's buttocks or groin."

Post at . On the record before us, that fact is speculative.

Indeed, the "humiliating, demeaning, and terrifying

experience[]," Morales, supra at 339-340, quoting Prophete, 441

Mass. at 553, that is the hallmark of a strip search exists even

where the arresting officers are the only persons to view a
 19

suspect's intimate areas. Thus, where the safety exigency had

ended and the search could have been observed from the

surrounding residential units, we are persuaded that the search

was not reasonable in these circumstances.

Conclusion. We conclude that the body search of the

defendant constituted a strip search, that the police lacked

probable cause to justify the search, and that it was

unreasonable in the circumstances. Accordingly, the motion to

suppress the contents of the bag retrieved during the strip

search should have been allowed. We therefore vacate the

judgment of conviction and remand the matter to the Superior

Court for further proceedings consistent with this opinion.

So ordered.
 GANTS, C.J. (dissenting, with whom Spina and Cordy, JJ.,

join). I agree with the court regarding the law. The pulling

back of the defendant's waistband, first to observe the object

that the defendant was "jocking," and later to retrieve it, were

strip searches under our law. See Commonwealth v. Morales, 462

Mass. 334, 342 (2012) ("A strip search . . . may occur when a

detainee remains partially clothed, but in circumstances during

which 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"). Probable cause was

needed to conduct these strip searches. See id. at 339, quoting

Commonwealth v. Prophete, 443 Mass. 548, 554 (2005) ("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'"). And to pass constitutional muster, the strip

searches must have been reasonably conducted under the

circumstances. See Morales, supra at 342 ("For a visual body

cavity search and a strip search to be constitutional under the

Fourth Amendment [to the United States Constitution] and art. 14

[of the Massachusetts Declaration of Rights], such searches also

must be reasonably conducted").
 2

I dissent because I disagree with the court's application

of the law to these facts. Based on the factual findings of the

motion judge, which were not clearly erroneous, there was

probable cause to believe that the defendant was "jocking"

illegal drugs, and it was reasonable under the circumstances to

pull the waistband of his shorts back to observe and later

retrieve the plastic bag containing the drugs, because the only

persons who could observe the defendant's buttocks and groin

area in such a strip search were the detectives who conducted

it. See id. at 343.

1. Probable cause for the search. Based on the judge's

findings, when Brockton police Detective Eric Hilliard pulled

back the defendant's waistband to look for drugs, the following

information was known to the police:

 As the detectives approached the vehicle in which the

defendant was a passenger, the defendant was seen reaching

his left arm behind his body.

 When Detective Brian Donahue approached the vehicle, the

defendant appeared "extremely nervous -- he stared

straight ahead seeking to avoid eye contact, his hands

trembled, his chest heaved, and he was breathing rapidly."

The defendant's demeanor was different from previous

encounters Detective Donahue had with the defendant, where

the defendant was "engaging" and "spoke openly."
 3

 The defendant had a wad of $500 in cash in his front

pocket.

 When Detective Donahue conducted a frisk of the

defendant's inner thighs and crotch area, he felt a hard

object behind the defendant's testicles that he knew was

not "part of the male anatomy."

 When Detective Donahue asked the defendant what he was

hiding there, the defendant twice denied hiding anything.

 Detective Donahue knew from his training and experience

that drug dealers hide narcotics in the buttocks area, and

had recovered narcotics hidden in that manner from drug

dealers before. He referred to this practice as "jocking

something."

Courts inside and outside of Massachusetts have recognized

that, when a police officer feels a foreign object in a male's

groin or buttocks area, it is a reasonable inference that the

object contains illegal drugs. See Commonwealth v. Clermy, 421

Mass. 325, 327, 330-331 (1995) ("It is eminently reasonable to

infer that a prescription bottle carried [between the

defendant's legs in the area of his genitals] would contain

contraband, and, most probably, a controlled substance");

United States v. Walker, 181 F.3d 774, 779 (6th Cir.), cert.

denied, 528 U.S. 980 (1999) (seizure of plastic bag justified

where police officer felt bulge under suspect's pants while pat
 4

frisking groin and buttocks); People v. Champion, 452 Mich. 92,

111-112 (1996), cert. denied, 519 U.S. 1081 (1997) (probable

cause to believe that pill bottle contained contraband where

police discovered bottle in defendant's groin region). See

also 2 W.R. LaFave, Search and Seizure § 3.6(b), at 403-404

(5th ed. 2012) ("If the package is concealed in the groin area,

a finding of probable cause is much more likely. And even if

the touching does not alone supply probable cause, it may

contribute together with other facts to a probable cause

finding" [footnotes omitted]).

This inference grows stronger where the officer has found

narcotics hidden in that manner before and knows from his or

her training and experience that drug dealers hide narcotics

there. See United States v. Ashley, 37 F.3d 678, 681 (D.C.

Cir. 1994), cert. denied, 513 U.S. 1181 (1995) (probable cause

where officer felt object in groin area during patfrisk and

officer testified that he had previously found narcotics hidden

in that area of the body).

This inference grows stronger still where the defendant

twice denies that he is hiding anything, even though it is

plain that he is. See Commonwealth v. Gentile, 437 Mass. 569,

574 (2002) ("inconsistent, false, [and] implausible" statements

by defendant to police contributed to finding of probable

cause). See also United States v. Ilazi, 730 F.2d 1120, 1127
 5

(8th Cir. 1984) (along with other suspicious circumstances,

defendant's failure to explain unusual bulge in boot

constituted probable cause to arrest for narcotics offense).

The discovery that the defendant was "jocking something"

and his false denial that he was hiding anything gave

incriminating meaning to the earlier observation of the

defendant reaching his left arm behind his body, which is

consistent with his placement of something in his buttocks

under his loose fitting athletic shorts. It also gave

incriminating meaning to the defendant's demeanor with

Detective Donahue, which was different from prior encounters.

I recognize that, before this encounter, there was no

information that the defendant dealt or used controlled

substances. But such information would simply have gilded the

lily of probable cause. There was abundant probable cause

without this information. After all, if the object did not

contain contraband, why would a person keep it in his buttocks

and then, when it was felt by a police officer during a

patfrisk, deny its very existence?1

1
I also recognize that this is the most pretextual of
stops: the detectives were looking for a legal justification to
stop the vehicle, and found it when they saw that the license
plate was not properly illuminated. But even if we were, for
this reason, to apply heightened scrutiny to our probable cause
analysis, the facts here survive such scrutiny.
 6

2. Reasonableness of the strip search. In evaluating the

reasonableness of a strip search, "[h]ow a search is conducted

is of the utmost importance, with the least amount of intrusion

constituting the better practice." Morales, 462 Mass. at 343.

Here, the defendant's clothing was not removed, and his

buttocks and groin area were not exposed to any passerby who

might observe the search. Rather, the searches in this case

were strip searches only because a detective lifted the

waistband of the defendant's athletic shorts and underwear,

thereby exposing his private parts to the detectives who

conducted the search. There is no reason to believe that, in

either search, anyone other than the searching detectives could

have seen the defendant's buttocks or groin. During the second

search, where the detectives retrieved the plastic bag from the

defendant's buttocks, they moved to an alley between

residential buildings in an effort to obtain greater privacy,

but all they ultimately did was pull back the defendant's

waistband again, this time perhaps a bit further. This is a

far cry from the strip search in the Morales case where the

defendant was seen "lying face down on the sidewalk with his

buttocks exposed." See id. at 338. Certainly, if the police

had taken the defendant to a private room to conduct a strip

search, no one would question that it was conducted reasonably,

because the only persons who would then see the defendant's
 7

buttocks and groin would be the police officers conducting the

strip search. See id. at 342-343 ("Concerning the place where

such a search is conducted, courts have indicated that, in

order to preserve a detainee's privacy, a private room is

preferable"). But the same is true here, because all that the

searching detectives did was pull back the defendant's

waistband, exposing his private areas only to the detectives

who conducted the search. Under these circumstances, I

conclude that the strip searches were "perfectly reasonable in

scope and manner and did not result in either the public

disclosure of the defendant's buttocks or undue embarrassment

or humiliation." See id. at 345 (Cordy, J., concurring).

3. Conclusion. Because I conclude that there was probable

cause to believe that the defendant was "jocking" illegal

drugs, and that the conduct and manner of the strip searches to

observe and later retrieve the plastic bag containing the drugs

were reasonable under the circumstances, I would affirm the

motion judge's denial of the defendant's motion to suppress.

Therefore, I respectfully dissent.