CAN THE POLICE LOOK IN MY UNDERWEAR FOR DRUGS AFTER THEY PULL ME OVER?
In April of 2016, the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Amado, in which the Court reversed a Massachusetts Appeals Court decision that affirmed a jury’s conviction of the defendant for trafficking cocaine. The defendant’s pretrial motion to suppress the contraband was denied by the trial judge, but the SJC ruled that the motion should have been allowed, as the police officer’s search of the defendant’s “jock” area was a “strip search,” and because there was no probable cause for such a search.
The facts were that four police officers were travelling in an unmarked police cruiser in Brockton at night, when one of them recognized the defendant who was then riding in the passenger seat of a nearby vehicle. The defendant was known to the police as having recently been arrested for illegal possession of a firearm. The police followed the vehicle and “noticed that the registration plate was not properly affixed.” They then pulled the vehicle over.
As they approached the vehicle, one of the officers noticed the defendant’s arm to be moving, and he alerted his fellow officers of this. The police also noticed that the defendant seemed nervous, avoided eye contact with the officers, had trembling hands, and was breathing rapidly.
One of the officers then ordered the defendant to exit the vehicle and conducted a pat frisk for weapons, pursuant to Terry v. Ohio and its progeny. A so-called Terry frisk is permissible if an officer has a reasonable fear for his safety, but the scope of such a search is limited to a search for weapons.
While patting down the defendant, the officer felt an object behind the defendant’s testicles, in what is referred to in the case as his “jock” area. The officer did not suspect that this object was a weapon, based on its feel. Nevertheless, the police pulled the waistband of the defendant’s shorts and underwear aside, and observed a plastic bag that was later found to contain illegal narcotics.
On appeal, the SJC held that the stop of the vehicle was legal, although based on a pretext. The Court also held that ordering the defendant out of the vehicle and pat frisking him for weapons was legal under the circumstances. The problem, said the Court, was that there was no probable cause to subject the defendant to what amounted to a strip search.
Where an officer has issued an exit order based on safety concerns, the officer may conduct 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.” Com. v. Almeida, 373 Mass. 266, 272 (1977). “In most instances[,] the search must be confined to a pat-down of the outer clothing of the suspect.” Com. v. Silva, 366 Mass. 402, 408 (1974). 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. Com. v. Wilson, 441 Mass. 390, 396-97 (2004).
The Court also noted that new case law had recently established 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.” Com. v. Morales, 462 Mass. 334, 342 (2012).
The SJC held that probable cause to arrest the defendant or subject him to a strip search did not arise when the police felt the object in the defendant’s “jock” area, because the nature of the object was not obvious. Rather, the police merely suspected that the object contained illegal drugs. And since probable cause, and not reasonable suspicion, is required before arresting or strip-searching an individual, the search was invalid and the evidence was unlawfully discovered and seized. The SJC reversed the Appeals Court’s decision, vacated the conviction, and remanded the matter to the trial court.
More specifically, the Court looked at the following factors in determining that no probable cause arose from simply feeling the object, viz.:
- 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.
- There was no other indication that the defendant was committing or about to commit a drug offense.
- The defendant’s arm movements and nervousness prompted the protective pat frisk but suggested no connection to suspected narcotics.
- The defendant was ordered out of an automobile stopped for a minor motor vehicle infraction, but not for suspected drug activity.
- The defendant was not the driver of the vehicle, nor was there concern about his having operated a vehcle while under the influence.
- The defendant’s clothing showed no visual clues indicating the presence of narcotics on his person.
- The vehicle was not stopped in an area known for drug trafficking.
So, the police need probable cause before they can look in your underwear, and not just reasonable suspicion.
Related: WHEN CAN THE POLICE ORDER ME OUT OF MY CAR?
The Court in the Amado case reviewed the law regarding exit orders; here it is:
An exit order is proper when: (1) 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; (2) the officer developed a reasonable suspicion based on specific and articulable facts that the passenger was engaged in, or about to engage in, criminal activity apart from any offense committed by the driver; or (3) the police are conducting a search of the automobile on other grounds, such as the automobile exception to the warrant requirement.
Common examples of the above would be: (1) someone in the car has a history of illegal firearm possession; (2) the officer suspects the driver is intoxicated and wants to conduct standardized field sobriety testing; and (3) the police are performing a justified search of the vehicle and cannot do same while the vehicle is being occupied.
Attorney Kevin D. Quinlan