Massachusetts Appeals Court Reverses Drug Conviction Where Revere Police Unlawfully Removed Narcotics from Defendant’s Rectum

The Massachusetts Appeals Court today reversed a defendant’s conviction for possessing heroin and cocaine where the drugs were removed from his rectum without the necessary warrant.  The name of the case is Commonwealth v. Jeannis

The defendant was arrested by Revere police officers for an unsuspected crime.  When he was at the police station, he told the cops he felt sick because he had swallowed drugs.  A police lieutenant noticed the defendant was sitting in an awkward position on the bench in the booking room, and when he was escorted to the bathroom he was walking in a slow manner and appearing to clench his buttocks.  Worrying that the defendant might be hiding a weapon, the lieutenant escorted him to a cell and ordered him to take off his clothes.  The defendant resisted removing his underwear and appeared to be trying to shield his buttocks from the lieutenant and a second officer who was assisting.  The defendant finally obeyed the cops’ orders to remove his underwear, and the officers saw a plastic bag protruding from his buttocks.  The officers told him to remove the bag or they would remove it for him.  The defendant removed the bag, which contained 15 individually-wrapped bags of cocaine and 13 individually-wrapped bags of heroin.  A Suffolk Superior Court jury ultimately convicted him of possessing the drugs.

On appeal, the defendant argued the motion to suppress the drugs he had filed before his trial should have been allowed by the superior court judge who conducted the hearing.  The Appeals Court agreed.  There are three related types of searches involving the removal of a defendant’s clothes.  A strip search involves the visual inspection of a naked suspect without any close examination of his body cavities.  A visual body cavity search is a strip search that includes the visual inspection of the suspect’s genital and anal areas.  And a manual body cavity search is a strip search focusing on the genital and anal areas of the suspect’s body that involves a police officer touching or probing the body cavities.  To resolve this case, the Appeals Court needed first to define the search.  The Commonwealth argued the search was a strip search because the bag was simply wedged between the defendant’s buttocks, but not inserted into his rectum.  The Appeals Court rejected the Commonwealth’s argument, pointing out that the motion judge specifically found (and the evidence at the hearing supported) that at least part of the bag had penetrated the defendant’s rectum.  The Commonwealth also asserted the police conduct in this case could not have been a manual body cavity search because the defendant removed the bag himself, instead of allowing the cop to do it for him.  The Appeals Court didn’t buy this argument either, pointing out that whether the cop or the defendant physically removed the bag, the police were responsible for ordering its removal.

Having concluded the defendant was subject to a manual body cavity search, the Appeals Court ruled that the cops did not obtain the proper judicial authorization to seize the bag.  In order to perform a manual body cavity search, the police are required to make a showing of heightened probable cause that contraband will be discovered and are required to obtain a judicial warrant prior to the search.  While there was heightened probable cause in this case, it is undisputed that the cops did not obtained a warrant.  Therefore, the drugs should have been suppressed and the Appeals Court reversed the defendant’s convictions.