Commonwealth v. Amado (Lawyers Weekly No. 10-053-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11914 COMMONWEALTH vs. ADERITO P. AMADO. Plymouth. December 8, 2015. – April 19, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Search and Seizure, Protective frisk, Probable cause, Body examination. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Practice, Criminal, Motion to suppress. Indictment found and returned in the Superior Court Department on July 18, 2011. A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J., and the case was tried before Merita A. Hopkins, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Susan E. Taylor for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. HINES, J. After a jury trial, the defendant, Aderito Amado, was convicted of trafficking in fourteen grams or more of cocaine, in violation of G. L. c. 94C, § 32E (b). The Appeals Court affirmed the conviction in an unpublished memorandum and order issued pursuant to its rule 1:28. We granted the defendant’s application for further appellate review to consider whether the search of the defendant’s genital area during a patfrisk for weapons was a strip search and, if so, whether it satisfied the probable cause requirement articulated in Commonwealth v. Morales, 462 Mass. 334, 342 (2012). We conclude that although the police properly initiated the motor vehicle stop, the subsequent search, which involved pulling the defendant’s clothing away from his body, shining a flashlight inside the clothing, and removing an object from his buttocks, was an unlawful strip search on two grounds. First, the search of the defendant’s buttocks area exceeded the permissible scope of a patfrisk for weapons where it occurred after the police had dispelled the safety concerns prompting the exit order and patfrisk. Second, the search met the criteria of a strip search as we have defined it, and the search was unlawful because the police lacked probable cause to believe the defendant was concealing drugs on his person and it was otherwise unreasonable. Thus, the judge erred in denying the motion to suppress the evidence obtained during the search. We reverse the denial of the motion to suppress and remand the matter to the Superior Court for further proceedings. 1. Motion to suppress. a. Background. On June 2, 2011, […]