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Appeals Court Weighs in on the Legal Requirements for Cavity Searches

balance-1172786-300x204In Commonwealth v. Jeannis, the Appeals Court reversed the denial of the defendant’s motion to suppress a bag of drugs seized from his rectum, because the police did not have a warrant to conduct the seizure.

The basic facts were as follows. In the booking area of a police station to which the defendant was transported after having been arrested, Lieutenant Callahan noticed that the defendant was sitting “oddly, leaning to one side.” Later, “Callahan noticed that the defendant had an unusual gait as he walked to [his] cell…. The defendant moved slowly, was rigid and tense, and was ‘clenching his buttocks area.’ Callahan believed that [the defendant] might have something secreted in that area, which could be a potential safety risk. Callahan asked Officer … Singer to accompany the defendant and Callahan to the … cell. Callahan ordered the defendant to remove his clothing….. [W]hile wearing only underwear, [the defendant] continued to clench his buttocks and attempted to shield his backside from Callahan’s and Singer’s view…. [When] [t]he defendant pulled down [the] waistband” of his underwear, Singer “saw a plastic bag protruding from the defendant’s buttocks. Singer ordered the defendant to remove the bag or have Singer remove it. The defendant agreed to remove it himself and then pulled down his underwear. Singer put his hand on top of the defendant’s hand as the defendant ‘removed the bag.’ The bag contained fifteen individually wrapped bags of cocaine and thirteen individually wrapped bags of heroin.” After the return of indictments charging the defendant with possession with intent to distribute cocaine and heroin, he filed a motion to suppress the drugs. The motion was denied and the defendant was convicted as charged. On appeal, he challenged the denial of the motion to suppress. He argued that under “the principles concerning manual body cavity searches articulated in [Rodriquesv.] Furtado, [410 Mass. 878 (1991)], … seizures from a body cavity may be made only on the authority of a warrant issued by a judge and supported by a high degree of probable cause.”

In its decision, the Appeals Court agreed with the defendant’s argument. The Court stated, “While there was heightened probable cause to believe that the bag protruding from the defendant’s rectum contained contraband, it was seized without a judicial warrant in circumstances that do not justify failure to obtain one.” The Court rejected the Commonwealth’s contention that it should prevail “because the defendant removed the bag himself. Even assuming the removal of the bag by the defendant and [Officer Singer] together could be characterized as removal by the defendant himself, … the question before us is not the manner of the seizure, but the propriety of the seizure itself. [Singer] ordered the defendant to remove the bag, threatening that otherwise he would do so himself. The Commonwealth provides no reason why it makes any difference whose hand removed the bag, nor any citation to relevant authority. When a defendant gives something to a police officer after being ordered to do so, the police are nonetheless responsible for the seizure.”

Drug charges are extremely serious and may carry a minimum mandatory sentence. If you or a loved one has been charged with a drug crime, it’s extremely important to have an experienced attorney to help you evaluate the evidence, research the relevant law, and persuasively argue the motion to suppress to the court.  Attorney Daniel Cappetta is well versed in search and seizure law and has successfully litigated numerous motions to suppress.  Call him for a free consultation today.

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