The Supreme Judicial Court today tossed evidence against a Lowell man charged with heroin possession - the bag of powder police found clenched between his butt cheeks after they pulled his underwear down as he lay on a sidewalk, handcuffed.
The court agreed Carlos Morales had given police more than enough cause to pat him down - including evidence he had just sold drugs, fidgety behavior in his car when pulled over and an attempt to fight his way out of an arrest. But even though that pat down revealed a lump in his buttocks that did not belong, police should have waited until they could get him back to the station to conduct a more thorough search in private, because the lump was too soft to be a weapon and pulling his underwear down as he lay there constituted a strip search that violated his privacy rights, the court said:
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.
