United States v. Perez, 2020 WL 5987902 (1st Cir. 2020)
Two veteran investigators driving an unmarked police car saw what they believed to be a drug transaction between the occupants of a Mercedes sedan and a man on the street. They saw a man, dressed in scanty attire despite the cold Massachusetts October morning, walk up to a Mercedes and exchange something with the occupants. The officers followed the Mercedes in a pattern that suggested the Mercedes occupants knew police were following. The investigators turned on emergency lights and the Mercedes pulled into a driveway.
As the investigators approached the Mercedes, the occupants switched cell phones. Andres Perez, the driver, was arrested for driving on a revoked license. Cesar Alicea, the passenger, suddenly bolted from the car and fled. A pursuing officer saw Alicea throw something from his waistband; officers later recovered a gun. Another veteran officer arrived and stated he recognized Perez as a drug dealer, having arrested him for selling cocaine. A K9 sniff of the Mercedes led to a search and the discovery of a single baggie of crack cocaine. The car also contained three cell phones.
The court relied on its prior holdings that strip searches of arrested persons may be justified by particularized reasonable suspicion the suspect is concealing contraband or evidence.
At the booking station, an officer found $269 in cash in various denominations, an amount consistent with street-level drug sales, but found no drugs. Based on the discovery of only one baggie of cocaine, the cash, the multiple cell phones, the observed transaction and Perez’s prior drug sales arrest, officers believed he was hiding additional drugs. An officer told Perez to drop his pants and bend over. A pink bag containing crack protruded from the crack. The officer used his gloved hand to pull out the pink bag from Perez’s nether region, which contained 10 additional baggies of crack cocaine and three baggies of heroin.
Perez challenged the strip search and asked that his booty treasure be suppressed. Perez claimed both the stop and the search were not supported by reasonable suspicion. The prosecution argued there was particularized reasonable suspicion for the search done during the booking procedure. The trial court upheld the search, citing the rule of Florence v. Board of Chosen Freeholders (566 U.S. 318 (2012)), which permits strip searches of all jail inmates booked into general population.
The court of appeals agreed with the trial court that the stop was justified based on the observation of the suspected sale and the driving pattern afterward. The revoked license supported a warrantless arrest. Alicea’s flight, the discovery of the discarded gun, the dog sniff, the multiple cell phones, the amount of cash and Perez’s prior drug sales arrest all provided reasonable suspicion to believe Perez was holding drugs. The court of appeals did not address the Florence v. Board of Chosen Freeholders argument. Instead, the court relied on its prior holdings that strip searches of arrested persons may be justified by particularized reasonable suspicion the suspect is concealing contraband or evidence. The court held there was ample reasonable suspicion to conduct the visual body cavity search.
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