Commonwealth v. Rivera

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22-P-717 Appeals Court

COMMONWEALTH vs. LYRIQ RIVERA.

No. 22-P-717.

Suffolk. September 12, 2023. – August 5, 2024.

Present: Massing, Henry, & Brennan, JJ.

Controlled Substances. Constitutional Law, Search and seizure.
Search and Seizure, Protective frisk, Search incident to
lawful arrest. Practice, Criminal, Motion to suppress.

Indictments found and returned in the Superior Court
Department on March 29, 2022.

A pretrial motion to suppress evidence was heard by
Catherine H. Ham, J.

An application for leave to prosecute an interlocutory
appeal was allowed by David A. Lowy, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
him to the Appeals Court.

Jeffrey A. Garland, Committee for Public Counsel Services,
for the defendant.
Ian MacLean, Assistant District Attorney (John C. Mooney,
Assistant District Attorney, also present) for the Commonwealth.

HENRY, J. The defendant, Lyriq Rivera, was charged with

one count of trafficking in fentanyl, G. L. c. 94C, § 32E (c
2

1/2), and one count of trafficking in cocaine, G. L. c. 94C,

§ 32E (b) (1). The defendant filed a motion to suppress, among

other things, physical evidence obtained during a search of the

defendant, including the narcotics obtained by the police.1

After an evidentiary hearing, the judge denied that aspect of

the motion, relying on the dissenting opinion in Commonwealth v.

Amado, 474 Mass. 147 (2016), to conclude that the search of the

defendant's genital area was reasonable. Under the Amado

majority, which is controlling precedent from the Supreme

Judicial Court, the defendant was subject to an unreasonable

public strip search. Accordingly, we reverse.

Background.2 On January 15, 2021, at approximately 2:40

P.M., two Boston police officers were patrolling in a marked

cruiser on Norfolk Street when they observed a gray Infiniti

sedan with "extremely" dark tinted windows. They conducted a

query of its license plate, which indicated that the sedan's

inspection sticker had expired and that the registration was

"cancelled"; they effected a motor vehicle stop without

1 The defendant also moved to suppress evidence found in the
search of the vehicle he was driving and statements he made
after the search. Those portions of the motion were denied and
granted respectively and are not the subject of this appeal.

2 We summarize the facts from the motion judge's findings,
supplemented in part by our independent review of the body-worn
camera footage. See Commonwealth v. Yusuf, 488 Mass. 379, 380-
381 (2021); Commonwealth v. Agogo, 481 Mass. 633, 633 (2019).
3

incident. The defendant, who was the driver, provided officers

with his learner's permit. However, the defendant was operating

in violation of G. L. c. 90, § 8B, because the only passenger in

the vehicle was unlicensed, in violation of the requirement that

a learner-driver be accompanied by a qualified licensed driver.

One officer ordered the defendant out of the vehicle and

conducted a patfrisk by the driver's side door of the sedan.

When the officer frisked the defendant's groin area, he 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.
4

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.

Discussion.3 It is undisputed that the police had the right

to search the defendant as a search incident to a lawful arrest

3 "In reviewing a ruling on a motion to suppress evidence,
we accept the judge's subsidiary findings of fact absent clear
error . . . . We review independently the application of
constitutional principles to the facts found" (citation
omitted). Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
5

for operating a motor vehicle with a learner's permit without a

licensed driver occupying a seat beside him. See G. L. c. 90,

§ 8B ("The holder of a learner's permit who operates a motor

vehicle without a duly licensed driver . . . who is occupying a

seat beside the driver shall be deemed to be operating a motor

vehicle without being duly licensed . . ."); G. L. c. 90, §§ 10,

21 (authorizing arrest without warrant for operating motor

vehicle without license); Commonwealth v. Perkins, 465 Mass.

600, 605 (2013) (search incident to lawful arrest is exception

to warrant requirement); Commonwealth v. Jackson, 464 Mass. 758,

761 (2013) (same).

However, a strip search, especially a public one, requires

more than probable cause to arrest; rather, the search must be

"justified by probable cause to believe that the defendant [has]

concealed [drugs] on his person or his clothing that would not

otherwise be discovered by the usual search incident to arrest."

Commonwealth v. Morales, 462 Mass. 334, 339 (2012), quoting

Commonwealth v. Prophete, 443 Mass. 548, 554 (2005).

Additionally, the strip search must be conducted in a reasonable

manner. Morales, supra at 342. Under controlling Supreme

"We leave to the judge the responsibility of determining the
weight and credibility to be given oral testimony at the motion
hearing, but review de novo any findings based entirely on a
video recording" (quotation and citations omitted). Yusuf, 488
Mass. at 385.
6

Judicial Court precedent, the officer conducted an unreasonable

public strip search of the defendant.

1. Whether a public strip search occurred. For the first

time on appeal, the Commonwealth argues that the search of the

defendant was not a strip search. Passing over whether the

Commonwealth waived the issue by not raising it below, see

Commonwealth v. Alexis, 481 Mass. 91, 101 (2018), we discern no

error in the motion judge's finding that a strip search

occurred. In Morales, the Supreme Judicial Court rejected the

Commonwealth's argument that a detainee must be fully unclothed

for a "strip search" to occur. See Morales, 462 Mass. at 341-

342. The court explained that a "strip search also may occur

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." Id. at 342.

Similarly, in Amado, the Supreme Judicial Court, applying

Morales, 462 Mass. at 342, concluded that a search where a

defendant's private area is "viewed and exposed" is a strip

search. Amado, 474 Mass. at 154. In Amado, the "arresting

officer opened the waistband of the defendant's underwear,

exposed his bare skin, directed a flashlight on the area, and

then retrieved the object." Id. Here, as in Amado, the

arresting officer opened the waistband of the defendant's
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underwear, exposed his skin, and, aided by daylight rather than

a flashlight, retrieved the object. The Amado decision is

controlling. The motion judge did not err in finding that a

strip search occurred in these circumstances.

2. Whether the strip search was lawful. We assume,

without deciding, that officers had probable cause to conduct a

strip search. See Agogo, 481 Mass. at 637; Prophete, 443 Mass.

at 553-554. As to the question of whether the strip search was

otherwise lawful, we conclude that the motion judge erred in

relying on the dissent rather than the majority opinion of

Amado. Under Amado and Morales, the search was unreasonable.

It is a fundamental principle of common law jurisprudence

that judges must follow precedent except in extraordinary

circumstances where the court has the explicit authority to

alter the law. See Shiel v. Rowell, 480 Mass. 106, 108-109

(2018) (adherence to precedent is "preferred course" because it

promotes reliability and integrity of judicial system [citation

omitted]). Just as this court is bound by the decisions of the

Supreme Judicial Court, so too are the trial court judges of

Massachusetts. Commonwealth v. Vasquez, 456 Mass. 350, 356

(2010) (Supreme Judicial Court "is the highest appellate

authority in the Commonwealth, and [its] decisions on all

questions of law are conclusive on all Massachusetts trial

courts and the Appeals Court").
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After describing the opinion of the majority and the

dissent in Amado, the motion judge opted to follow the dissent:

"Like the dissent opinion in Amado, I find that the strip search

[of the defendant] was reasonable in scope and manner." Neither

we nor the trial court judges have the "power to alter, overrule

or decline to follow the holding of . . . the Supreme Judicial

Court." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485

(2003). Accordingly, the motion judge was bound to follow the

holdings of Amado and Morales, and erred by failing to do so.

A strip search is unreasonable where, absent exigent

circumstances, it is conducted in public. Amado, 474 Mass. at

156-157; Morales, 462 Mass. at 342-343, quoting Commonwealth v.

Thomas, 429 Mass. 403, 409 n.5 (1999) (search is reasonable

"where no one, other than the investigating officer or officers,

can see the person being searched"). A member of the public

need not in fact witness the search; it is the location of the

search itself that drives the inquiry. Amado, supra. In Amado,

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. Id. at 149, 153. There, police officers took a

defendant into an alleyway in between two nearby, residential

buildings and shined a flashlight on his buttocks. Id. at 149,

160. The majority held the search was an unreasonable strip

search where there was the possibility that a member of the
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public could have witnessed it. Id. at 157. Similarly, in

Morales, the Supreme Judicial Court held that the search was

unreasonable where the defendant's buttocks were exposed on a

public sidewalk. Morales, 462 Mass. at 343-344. "With no

exigency existing, the defendant should have been transported to

a private space or location." Id. at 344.

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. See Amado, 474 Mass. at 157. 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.4 Given the strong preference for strip

4 The Commonwealth contends, relying on the facts of
Commonwealth v. Vick, 90 Mass. App. Ct. 622, 624 (2016), that
the danger that the defendant might ingest or access secreted
narcotics during transport established exigency. The argument
is unavailing. See Morales, 462 Mass. at 343-344 (no exigent
circumstances where defendant was handcuffed face down on
sidewalk surrounded by four officers and officers knew object in
defendant's shorts was not weapon).
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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.

Conclusion. We vacate that much of the order denying the

motion to suppress the physical evidence recovered during the

strip search and remand the matter to the Superior Court for

further proceedings consistent with this opinion.

So ordered.