MA: Pulling down defendant’s pants on street for strip search for drugs in his buttocks was unreasonable

Defendant was virtually strip searched for drugs on the street. He was arrested and face down on the sidewalk, and the arresting officers pulled down his pants to get to the drugs hidden in his buttocks. This was unreasonable. The officers knew that the lump in his pants was not a weapon. Commonwealth v. Morales, 462 Mass. 334, 968 N.E.2d 403 (2012):

Here, with regard to the strip search, at the time when Detective Desmarais removed the drugs from between the defendant’s buttock area, the police did not, as we suggested in Commonwealth v. Thomas, supra at 409 n.5, conduct the search in a private room or in any private location. The handcuffed defendant was face down on a public sidewalk and surrounded by four police officers. Detective Desmarais had determined that the lump in the rear of the defendant’s shorts was not a weapon. Thus, there was no concern that the defendant could have used a weapon against the officers, fled, or destroyed evidence. With no exigency existing, the defendant should have been transported to a private space or location. Doing so would have avoided what followed, namely, the public exposure of his buttocks, an embarrassing and humiliating intrusion of the defendant’s privacy. Indeed, the policy of the Lowell police department prohibits strip searches outside the confines of a police station. In the circumstances, the location of this search was inappropriate.

The manner in which the search proceeded, whereby the defendant’s buttocks were publicly exposed in the absence of exigent circumstances, was unreasonable. See Paulino v. State, 399 Md. 341, 359 (2007) (instead of reaching into defendant’s underwear to retrieve contraband, officer lifted up defendant’s underwear and publicly exposed his buttocks, which rendered search unreasonable). There was no explanation in the record why Detective Desmarais was able to inspect the defendant’s buttocks area for drugs without public exposure, but was unable to retrieve the drugs without the resulting exposure. If Detective Desmarais could not have retrieved the drugs without exposing the defendant’s buttocks, he should not have conducted the search on a public sidewalk. Both the inappropriate location of the search and the manner in which it was conducted rendered the strip search constitutionally unreasonable under both the Federal and State Constitutions. Accordingly, we affirm the judge’s order of suppression.