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.