Commonwealth v. Vick

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-1150 Appeals Court

COMMONWEALTH vs. TYRONE VICK.

No. 14-P-1150.

Suffolk. September 7, 2016. - November 8, 2016.

Present: Kafker, C.J., Milkey, & Blake, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress.
Constitutional Law, Investigatory stop, Reasonable
suspicion, Probable cause, Search and seizure. Search and
Seizure, Reasonable suspicion, Probable cause, Body
examination. Probable Cause.

Indictments found and returned in the Superior Court
Department on June 7, 2007.

A pretrial motion to suppress evidence was heard by Charles
J. Hely, J., and the cases were tried before Judith Fabricant,
J.

Genevieve K. Henrique for the defendant.
Nicholas Brandt, Assistant District Attorney, for the
Commonwealth.

KAFKER, C.J. The defendant, Tyrone Vick, was convicted of

possession of a class B substance, see G. L. c. 94C, § 34,

following a jury trial. He appeals, arguing that the motion
 2

judge erred in denying the defendant's motion to suppress

evidence seized as the result of a stop, a search at the scene,

and a search at the police station.1 The search at the police

station involved the use of force to pull down the defendant's

pants and to remove a plastic bag containing drugs (which an

officer had felt during the search at the scene) protruding from

his buttocks. On appeal, the defendant claims that (1) the

motion judge erred by failing to resolve conflicting testimony

regarding material facts;2 (2) the search at the police station

constituted a manual body cavity search not supported by a

warrant issued by a judge, as required by Rodriques v. Furtado,

410 Mass. 878, 888 (1991); and (3) the police station search,

even if characterized as a strip or visual body cavity search,

was unreasonably conducted, particularly because it was

performed in violation of a Boston police department policy

requiring a warrant for the use of force to effectuate such a

search. We affirm.

1
A single justice of the Supreme Judicial Court denied the
defendant's application for leave to pursue an interlocutory
appeal. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass.
1501 (1996).
2
The defendant claims that the failure to resolve the
conflicting testimony requires a remand for further findings,
and that only after the further findings resolve the conflicts
can we determine whether the stop and the subsequent searches
were constitutionally justified. We discuss the testimony, the
stop, and the searches infra.
 3

Background. "We summarize the facts found by the motion

judge following the evidentiary hearing, supplemented where

necessary with undisputed testimony that was implicitly credited

by the [motion] judge." Commonwealth v. Oliveira, 474 Mass. 10,

11 (2016). On May 9, 2007, at approximately 6:00 P.M., Boston

police Officers Peter Cazeau and Linda Stanford, both in

uniform, were on patrol in a marked cruiser near the

intersection of Stuart and Tremont Streets, in an area of Boston

known for illegal drug activity. Cazeau observed another

officer on foot and approached him in the cruiser. The officer

informed Cazeau that a woman had reported several males acting

suspiciously in a nearby alley. Cazeau and Stanford observed

two men exit the alley. Both recognized one of the men as

Anthony Cianci, an individual with several prior drug arrests.3

Cianci entered the passenger seat of a vehicle parked illegally

in a crosswalk on Tremont Street. The defendant was in the

driver's seat of the vehicle.

Cazeau and Stanford waited for the vehicle to move out of

the crosswalk. When the vehicle remained, Cazeau issued a

parking citation. While placing the citation on the windshield,

Cazeau observed the defendant with his pants down around his

knees, underpants pulled to the side, and penis exposed. Cianci

3
Officer Cazeau had arrested Cianci in the past. Officer
Stanford had had "numerous" prior encounters with Cianci in the
course of her duties.
 4

was facing the defendant. Cazeau, intending to arrest one or

both of the individuals for engaging in sexual conduct for a

fee, see G. L. c. 272, § 53A, indecent exposure, see G. L.

c. 272, § 53(a), or open and gross lewdness, see G. L. c. 272,

§ 16, told both of the individuals not to move their hands.

Cazeau ordered Cianci out of the vehicle and searched him.

Cazeau recovered a pipe containing white residue, later

determined to be "crack" cocaine, from Cianci's pocket.

Stanford radioed for backup.

When Officer Steven Green arrived, he ordered the defendant

to the back of the vehicle and searched him for weapons. During

the search, Green felt a hard object in the cleft of the

defendant's buttocks. When Green touched the object, the

defendant tightened the muscles of his buttocks and "pulled

away." The defendant violently resisted the remainder of the

search, prompting the officers to handcuff him. The defendant

continued to thrash around and refused to spread his legs. The

officers placed him in the back of a cruiser to transport him to

the police station. While in the cruiser, the defendant

continued to fidget and to flail, attempting to get his cuffed

hands down the back of his pants. He was found with a handcuff

key on his wrist band. A drug-sniffing dog was brought to the
 5

scene and the dog alerted to the presence of drugs in the

defendant's vehicle.4

At the station, the defendant was placed in a holding cell

while Officer Green obtained permission from his supervisor to

conduct a strip search. Green then informed the defendant that

he had authorization to conduct a strip search, but that it

would not be necessary if the defendant removed the object from

his buttocks voluntarily. When the defendant refused, two

officers attempted to remove his pants. The defendant resisted

forcefully, prompting three or four more officers to enter the

cell to assist. With the defendant on the ground, the officers

were able to remove his pants and see the object between his

buttocks, which Green immediately recognized as crack cocaine

wrapped in a plastic bag.5 Green "brushed" or "flicked" the

object with his fingers and it "popped out on the ground,"

according to his testimony. The motion judge found that Green,

"[w]ithout manipulating the defendant's body, . . . grabbed the

bag and pulled it out from between the defendant's buttocks."

The motion judge further found that the "bag came out easily

without any significant pulling force" and "without any touching

or probing of [the defendant's] body cavities." The defendant

4
No drugs were found in the area where the dog alerted.
5
The bag contained several smaller bags with crack cocaine
in them.
 6

was charged with possession of a class B substance with intent

to distribute, subsequent offense, G. L. c. 94C, § 32A(b);

committing a drug violation in a school zone, G. L. c. 94C,

§ 32J; and resisting arrest, G. L. c. 268, § 32B.

Standard of review. "'In reviewing a ruling on a motion to

suppress evidence, we accept the judge's subsidiary findings of

fact absent clear error,' and we defer to the judge's

determination of the weight and credibility to be given to oral

testimony presented at a motion hearing. . . . We conduct an

independent review of the judge's application of constitutional

principles to the facts found." Commonwealth v. Hoose, 467

Mass. 395, 399-400 (2014), quoting from Commonwealth v. Contos,

435 Mass. 19, 32 (2001). The judge's resolution of conflicting

testimony "invariably will be accepted." Commonwealth v. Ortiz,

435 Mass. 569, 578 (2002).

Discussion. 1. The stop. To justify an investigatory

stop under the Fourth Amendment to the United States

Constitution or art. 14 of the Massachusetts Declaration of

Rights, "the police must have 'reasonable suspicion' that the

person has committed, is committing, or is about to commit a

crime. Reasonable suspicion must be 'based on specific,

articulable facts and reasonable inferences therefrom.'"

Commonwealth v. Costa, 448 Mass. 510, 514 (2007) (citations

omitted). See Terry v. Ohio, 392 U.S. 1, 21 (1968). A person
 7

is seized when "in view of all of the circumstances surrounding

the incident, a reasonable person would have believed that he

was not free to leave." Commonwealth v. Isaiah I., 450 Mass.

818, 821 (2008). See United States v. Mendenhall, 446 U.S. 544,

554 (1980).

Officer Cazeau effectuated a stop of the defendant when he

ordered the defendant not to move his hands. See Isaiah I., 450

Mass. at 822 (suspect seized when officer ordered him not to

move). The defendant claims that Cazeau's order was not

supported by reasonable suspicion that the defendant had

committed, was committing, or was about to commit a crime.

Specifically, he argues that, because the testimony of Cazeau,

Stanford, and Green conflicted in several respects, the motion

judge left several facts material to this determination

unresolved. We disagree.

Although the testimony of Cazeau, Stanford, and Green

conflicted in some respects, their testimony did not differ on

the points material to the reasonable suspicion analysis, as the

motion judge aptly noted.6 Cazeau testified that he saw the

6
The defendant points to the following inconsistencies in
the testimony of Cazeau, Stanford, and Green, in arguing that
Cazeau's stop was not supported by reasonable suspicion: (1)
Cazeau testified that the defendant was already in his vehicle
when Cianci entered it, whereas Stanford testified that the
defendant and Cianci got into the defendant's vehicle together;
(2) Cazeau testified that he parked the cruiser behind the
defendant's vehicle, whereas Stanford testified that Cazeau
 8

defendant with his pants down to his knees, underwear to the

side, and penis exposed. This observation gave Cazeau probable

cause to believe that the defendant was committing the crime of

indecent exposure, G. L. c. 272, § 53(a).7 See Commonwealth v.

Fitta, 391 Mass. 394, 396 (1984) (offense requires "an

intentional act of lewd exposure, offensive to one or more

persons" [citation omitted]).8 See also G. L. c. 272, § 54

(authority to arrest for offense). Officer Stanford's testimony

did not contradict this statement. Although Stanford did not

state that she also saw the defendant with his pants down and

his penis exposed, she was never directly asked whether she had.

parked the cruiser next to the vehicle; (3) Cazeau testified
that he issued the parking citation around 6:00 P.M., whereas
Stanford testified that she was the one who issued the parking
citation, at 6:25 P.M.; (4) Cazeau testified that he approached
the defendant's vehicle first, whereas Stanford testified that
they both approached the vehicle at the same time; and (5)
Stanford testified that she ordered the defendant out of the
vehicle, whereas Green testified that he ordered the defendant
out of the vehicle. Despite these apparent inconsistencies, the
motion judge found the testimony of Cazeau, Stanford, and Green
to be "truthful and reliable on the material points."
7
The defendant was also parked illegally, which further
justifies the stop. See G. L. c. 90C, § 2 (officer may approach
parked car committing traffic violation and issue ticket);
Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) (officer may
validly stop vehicle committing traffic violation); Commonwealth
v. Cruz, 459 Mass. 459, 465 (2011) ("It is uncontested that the
officers validly 'stopped' the car for parking in front of a
fire hydrant, a civil traffic violation").
8
At that particular time of day, the area of Tremont and
Stuart Streets in Boston had a high volume of pedestrian and
vehicular traffic.
 9

The motion judge also found that Cazeau approached the

defendant's vehicle before Stanford, which might explain why he

saw the defendant with his pants down and his penis exposed, but

she did not. Thus, Cazeau's observation, properly credited by

the motion judge and uncontroverted by Stanford, established

reasonable suspicion to stop the defendant. The motion judge

therefore properly denied the defendant's motion to suppress

evidence related to the stop.

2. The search at the scene. Officer Cazeau's observation

of the defendant with his pants down and penis exposed also gave

Cazeau probable cause to arrest the defendant for indecent

exposure. "[P]robable cause exists where, at the moment of

arrest, the facts and circumstances within the knowledge of the

police are enough to warrant a prudent person in believing that

the individual arrested has committed or was committing an

offense." Commonwealth v. Kennedy, 426 Mass. 703, 708 (1998),

quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241

(1992). The fact that the defendant was not charged with

indecent exposure does not alter this conclusion, contrary to

the defendant's contentions. See, e.g., Commonwealth v. Lawton,

348 Mass. 129, 133 (1964) ("[i]f the facts known to the officer

reasonably permitted a conclusion that probable cause existed
 10

for [one charge], the arrest should be treated as legal even

though he at first assigned another ground").9

Because the officers had probable cause to arrest the

defendant, the search for weapons constituted a valid search

incident to arrest. See G. L. c. 276, § 1; Chimel v.

California, 395 U.S. 752, 762-763 (1969). Once an arrest

occurs, "no additional justification is required for a search of

the person for weapons that otherwise might be used to resist

arrest or to escape, or to discover evidence of the crime for

which the arrest was made." Commonwealth v. Prophete, 443 Mass.

548, 552 (2005). Police may search "the arrestee's person and

the area 'within his immediate control.'" Chimel, supra at 763.

Such a search may precede formal arrest as long as probable

cause exists for the arrest and the arrest and the search are

"roughly contemporaneous." Commonwealth v. Washington, 449

Mass. 476, 481 (2007). Thus, the motion judge properly denied

the defendant's motion to suppress evidence related to the

search at the scene.

3. The nature of the police station search. In

determining the legality of the search at the police station, we

9
See also Barna v. Perth Amboy, 42 F.3d 809, 819 (3d Cir.
1994) ("Probable cause need only exist as to any offense that
could be charged under the circumstances" [emphasis supplied]);
Sennett v. United States, 667 F.3d 531, 537 (4th Cir. 2012)
("[T]he fact that a suspect is never charged with an offense
does not conclusively establish that officers did not have
probable cause to arrest for the offense").
 11

must consider the differences between three types of searches:

strip searches, visual body cavity searches, and manual body

cavity searches. "[A] strip search generally refers to an

inspection of a naked individual, without any scrutiny of his

[or her] body cavities." Prophete, 443 Mass. at 556, quoting

from Commonwealth v. Thomas, 429 Mass. 403, 407 n.4 (1999). A

strip search also 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." Commonwealth v. Morales, 462 Mass. 334, 342 (2012).

A visual body cavity search involves "a visual inspection of the

anal and genital areas." Prophete, supra, quoting from Thomas,

supra. A manual body cavity search "involves some degree of

touching and probing of body cavities." Thomas, supra at 408.

To conduct a strip or a visual body cavity search, police

must have probable cause to believe that "they will find a

weapon, contraband, or the fruits or instrumentalities of

criminal activity that they could not reasonably expect to

discover without forcing the arrested person to discard all of

his or her clothing."10 Prophete, supra, quoting from

10
"This standard is more stringent than the standard for
such searches set forth under the Fourth Amendment to the United
States Constitution, which is reasonable suspicion. See Bell v.
 12

Commonwealth v. Ramirez, 56 Mass. App. Ct. 317, 323 (2002).

"This is so because strip 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 [of the Massachusetts Declaration

of Rights]." Morales, 462 Mass. at 339-340, quoting from

Prophete, supra at 553.

Manual body cavity searches constitute an even greater

intrusion on a person's privacy rights and, as such, additional

protections are required. See Thomas, supra. Under Schmerber

v. California, 384 U.S. 757, 770 (1966), searches that intrude

into a person's body require a warrant unless exigent

circumstances exist. In Massachusetts, a judicially authorized

warrant based on "a strong showing of particularized need

supported by a high degree of probable cause" is required for a

manual body cavity search. Rodriques, 410 Mass. at 888.

The defendant claims that he was subjected to a warrantless

manual body cavity search when Officer Green observed and

removed the bag of drugs from the cleft of the defendant's

buttocks. The motion judge found, however, that the bag could

be observed and removed "[w]ithout manipulating the defendant's

Wolfish, 441 U.S. 520, 559 (1979)." Morales, 462 Mass. at 339
n.3.
 13

body," and "without any touching or probing of [his] body

cavities." The judge also found that when Officer Green

"grabbed the bag and pulled it out from between the defendant's

buttocks," it "came out easily without any significant pulling

force."11 According to Green's testimony, credited by the motion

judge, the bag was in the "cleft" of the defendant's buttocks,

and not lodged in his rectum.12 We conclude that the search, on

11
The defendant does not challenge these findings as
clearly erroneous.
12
Officer Green testified as follows:

Counsel: "Did anything out of the ordinary happen while
you were patting [the defendant] down?" . . .

Green: "[W]hen I got to . . . his backside, I felt
something that was, it felt like it was situated like in the
. . . cleft of his buttocks." . . .

Counsel: "And did you eventually retrieve the item that
you had felt?"

Green: "Yeah, when we got his pants off you could see it
was visible in the, like I said, the cleft of his
buttocks." . . .

Counsel: "Did you have to enter any sort of body cavity in
order to retrieve th[e] item?"

Green: "No."

Counsel: "Was any portion of th[e] item within [the
defendant's] rectum or within any sort of orifice of his body?"

Green: "No." . . .

Counsel: "Did you have to use force to get the bag out of
any sort of body cavity or anything like that? Did you have to
manipulate any sort of orifices or cavities?"
 14

these particular facts, is best characterized as a strip or

visual body cavity search, not a manual body cavity search, as

there was 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. See Thomas, 429 Mass. at 405,

407-408 (strip and visual body cavity searches, not manual body

cavity search, occurred where defendant was stripped and asked

to bend over, and drugs in plastic bag protruding from his

buttocks were removed without endangering his health or safety).

See also Prophete, 443 Mass. at 551, 555-557 (where defendant's

pants but not underwear were removed and drugs immediately fell

out from his buttocks, no strip search or visual or manual body

cavity search occurred); Morales, 462 Mass. at 338, 341

(officer's action of lifting back defendant's waistband to

retrieve bag of drugs from his buttocks, thus publicly exposing

his buttocks, constituted strip search). Contrast Commonwealth

v. Amado, 474 Mass. 147, 148 (2016) ("pulling the defendant's

clothing away from his body, shining a flashlight inside the

clothing, and removing an object from his buttocks" deemed

unlawful strip search because search occurred after police had

Green: "No."
 15

dispelled safety concerns and no probable cause to believe

defendant concealing drugs).13

Because the search did not constitute a manual body cavity

search, the officers only needed probable cause to believe that

the defendant had concealed drugs in his buttocks area to

justify the search. See Prophete, 443 Mass. at 556. Probable

cause existed because (1) Officer Green felt an object in the

13
A review of cases from other jurisdictions reveals
conflicting interpretations of whether the removal of drugs from
a defendant's buttocks constitutes a visual or a manual body
cavity search, and whether a warrant is required for the removal
of the drugs. Compare Paulino v. State, 399 Md. 341, 352-354
(2007) (spreading of defendant's "butt cheeks" did not render
search manual body cavity search); United States v. Scott, 987
A.2d 1180, 1185 (D.C. App. Ct. 2010) (plastic bag protruding
from anal cavity; "where, as here, a lawful strip search reveals
evidence that can be removed from the outer surface of the
arrestee's body without posing any threat to the arrestee's
health or safety, the Fourth Amendment permits the police to
seize that evidence immediately, without interrupting the search
procedure to obtain a warrant"); McGee v. State, 105 S.W.3d 609,
613, 615 (Tex. Crim. App. 2003) (removal of drugs from anal
cavity "without digitally probing the anus" constituted visual
body cavity search); Craddock v. Commonwealth, 40 Va. App. 539,
550-551 (2003) (removal of drugs from resisting arrestee's anal
cavity did not constitute manual body cavity search when officer
did not have to pull bag out from buttocks), with People v.
Hall, 10 N.Y.3d 303, 311 (2008) (string hanging from defendant's
rectum connected to drugs; "[i]f an object is visually detected
. . . , Schmerber dictates that a warrant be obtained before
conducting a body cavity search unless an emergency situation
exists. . . . [T]he removal of an object protruding from a body
cavity, regardless of whether any insertion into the body cavity
is necessary, is subject to the Schmerber rule and cannot be
accomplished without a warrant unless exigent circumstances
reasonably prevent the police from seeking prior judicial
authorization"); Hughes v. Commonwealth, 31 Va. App. 447, 453
(2000) (removal of plastic bag containing cocaine protruding
"halfway" from anal cavity constituted manual body cavity
search).
 16

cleft of the defendant's buttocks during the search, which Green

surmised from his thirty years of experience was drugs; (2) the

defendant tightened the muscles of his buttocks and pulled away

when Officer Green touched the object; (3) the defendant

resisted forcefully during the remainder of the search at the

scene; (4) the defendant attempted to reach the object in the

cruiser; (5) the defendant was with a known drug user,

recognized by all three officers, who had what they believed to

be a crack pipe on his person;14 (6) the defendant was in an area

known for illegal drug activity, where Officer Cazeau had made

numerous drug arrests in the past; and (7) a drug-sniffing dog

alerted in the defendant's vehicle.

4. The reasonableness of the police station search. Even

when probable cause exists to support a strip or a visual body

cavity search, the search must also "be reasonably conducted."

Morales, 462 Mass. at 342. Strip searches and visual body

cavity searches may be unconstitutional notwithstanding lawful

arrest "because they involve inspections of such a highly

personal nature, or are conducted in such a manner, as to

constitute an unreasonable intrusion on an individual's

privacy." Prophete, 443 Mass. at 554. "Courts must consider

the scope of the particular intrusion, the manner in which it is

14
Officer Cazeau told Officer Stanford about the crack pipe
that he recovered from Cianci.
 17

conducted, . . . and the place in which it is conducted." Bell

v. Wolfish, 441 U.S. 520, 559 (1979). "How a search is

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

intrusion constituting the better practice." Morales, supra at

343.

The defendant further argues that the search was

unreasonably conducted because the officers used force to

effectuate the search without a warrant, in violation of the

written policies of the Boston police department. Rule 318D of

the Boston police department rules and procedures provides, in

relevant part: "In no event shall force be applied to

accomplish a strip search and/or visual body cavity search

unless authorized by a warrant." A violation of a police

department's written policy, however, is not determinative in

the reasonableness of a search; it is only one factor in the

analysis.15 Id. at 343 n.9 ("While developing a written policy

concerning when and how to conduct a visual body cavity search

and a strip search may be helpful to police officers and may

15
One exception is in the context of inventory or
impoundment searches. See, e.g., United States v. Proctor, 489
F.3d 1348, 1356 (D.C. Cir. 2007) ("if a standard impoundment
procedure exists, a police officer's failure to adhere thereto
is unreasonable and violates the Fourth Amendment"). However,
the United States Supreme Court has specifically stated that
inventory searches must be conducted "according to standardized
criteria." Colorado v. Bertine, 479 U.S. 367, 387 (1987). No
similar rule exists in the context of strip searches or visual
body cavity searches.
 18

serve to guard against unnecessary intrusions, compliance with

such a policy is not determinative on the issue of

reasonableness but, rather, serves only as one factor in the

equation").16 See Prophete, 443 Mass. at 557; Ramirez, 56 Mass.

App. Ct. at 319.17

In the present case, the other factors in the

reasonableness analysis outweigh the officers' failure to obtain

a warrant before using force to effectuate the strip and the

visual body cavity searches. First, as previously discussed,

there was a high level of probable cause that the defendant was

concealing drugs in his buttocks. See Morales, 462 Mass. at 342

n.8. Despite the obvious presence of the bag, however, the

16
Application of the exclusionary rule is generally
reserved for cases in which the conduct of the police was in
violation of a person's constitutional rights. See Whren v.
United States, 517 U.S. 806, 815 (1996) (Court declined to apply
exclusionary rule because police acted reasonably,
notwithstanding that stop violated police regulations). Cf.
Commonwealth v. Grimshaw, 413 Mass. 73, 77 (1992) ("Generally,
evidence seized in violation of the law will be suppressed only
if the violation is substantial or rises to the level of a
Federal or State constitutional violation").
17
See also Doe v. Burnham, 6 F.3d 476, 480 (7th Cir. 1993)
("[J]ust because Illinois chooses to regulate police behavior in
a certain way does not mean the police officers violate the
Constitution by transgressing those rules"); McCormick v.
Lawrence, 278 Kan. 797, 805 (2005) ("[A] strip search or body
cavity search could violate [Kansas statute] without being
unreasonable under the Fourth Amendment"); State v. Rainford, 86
Wash. App. 431, 434 (1997) (dry cell search did not comport with
prison regulations; failure to follow procedure not "per se
violation" of due process clause "or any other constitutional
provision").
 19

defendant twice denied concealing anything in his buttocks. See

Amado, 474 Mass. at 156 ("[A] denial, especially an absurd one,

may heighten an officer's suspicion"). The defendant also made

continuous attempts to reach the bag and was found with a

handcuff key on his wristband, thereby revealing his intention

and determination to secure the drugs himself.

The search was also conducted in a manner designed to

preserve as much as possible the defendant's privacy and

dignity. Officer Green gave the defendant the opportunity to

remove the plastic bag himself, which would have avoided the

strip search. The search was conducted in a private holding

cell at the police station, with no other suspects in the cell.

See Morales, 462 Mass. at 342-343 ("a private room is

preferable"). The officers did not touch, probe, otherwise

open, or even peer into the defendant's body cavity. Initially,

there were only three officers involved in the search, and their

presence was likely necessary due to the defendant's previous

resistance to the search. See Thomas, 429 Mass. at 409 n.5

("[T]he searches should always be done where no one, other than

the investigating officer or officers, can see the person being

searched"). All of these officers were male -- the same gender

as the defendant. See Morales, supra at 343 ("Whether a person

of the same gender conducts the search should be given

consideration"). Additional officers only rushed into the cell
 20

due to the defendant's continued resistance. The officers also

used no more force than necessary to safely obtain the drugs.

Officer Green merely "flicked" or "brushed" the drugs out of the

defendant's buttocks. The entire struggle only lasted "a minute

or two."

Although there were no exigent circumstances excusing the

failure to obtain a warrant, a warrant was not constitutionally

required. See Schmerber, 384 U.S. at 770; Prophete, 443 Mass.

at 556. Moreover, the use of force was not excessive to the

point of rendering the search unreasonable. See Commonwealth v.

Garner, 423 Mass. 735, 738 (1996) (execution of searches subject

to "general strictures against unreasonable searches");

Commonwealth v. Williams, 439 Mass. 678, 686 (2003) ("[L]aw

enforcement personnel are authorized to use reasonable force,

and no more, to execute warrants and carry out lawful orders").

See also Michenfelder v. Sumner, 860 F.2d 328, 336 (9th Cir.

1988) ("the legitimate penological purpose of strip searches --

to discover hidden weapons and contraband -- justifies using

force necessary to induce compliance by difficult inmates");

Craddock v. Commonwealth, 40 Va. App. 539, 550-551 (2003)

(removal of drugs from resisting arrestee's anal cavity --

without having to pull on bag -- did not render strip search

unreasonable). We therefore conclude that the manner of the

strip and the visual body cavity searches was reasonable. As
 21

such, the motion judge properly denied the defendant's motion to

suppress evidence resulting from the police station search.

Judgment affirmed.