977 F.3d 163
1st Cir.2020Background
- On Oct. 31, 2017, two experienced Revere, MA narcotics officers observed a man pacing and talking on a cell phone, rush to a parked Mercedes, lean into the passenger window for ~10–15 seconds, then walk away — conduct they interpreted as a street-level drug transaction.
- The Mercedes drove a circuitous route after being followed, officers activated lights, the car pulled into a driveway, and officers approached; Perez (driver) gave registration but said he had no license; dispatch reported his license revoked.
- Passenger Cesar Alicea fled the vehicle as officers approached, tossed an object over a fence (later found to be a loaded semiautomatic firearm), and was arrested; Perez was handcuffed and taken into custody.
- A K-9 search of the Mercedes during booking recovered a single small baggie of suspected crack from the driver-side floor and three cell phones; Perez had ~$269 on him; officers knew Perez from prior narcotics investigations and affiliation with a drug gang.
- Booking officers, relying on collective knowledge and experience, conducted a strip and visual body cavity search at the station; an officer observed and removed a plastic baggie protruding from Perez’s buttocks containing multiple baggies of crack and heroin.
- Perez moved to suppress evidence from the stop and the visual body cavity search; the district court denied suppression; Perez entered a conditional plea and appealed the denial of suppression.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Perez) | Held |
|---|---|---|---|
| 1) Whether officers had reasonable suspicion to stop the Mercedes | The totality of circumstances (suspicious pacing/phone call, short window interaction, officers’ narcotics expertise, and evasive driving) gave reasonable suspicion of a drug transaction to justify the investigatory stop | Officers only had a hunch; observations were too innocuous to support reasonable suspicion for a stop | Court: Stop was supported by reasonable suspicion under Arvizu and related precedent (affirmed) |
| 2) Whether officers had particularized reasonable suspicion to conduct a visual body cavity search during booking | Collective knowledge (Perez’s narcotics history, single distribution-size baggie found in car, money, multiple phones, passenger’s flight and firearm) supplied individualized reasonable suspicion that Perez was concealing more drugs on his person | Visual body cavity search required more specific indicia (e.g., a tip that Perez hid drugs in a cavity); officers lacked that particularized suspicion | Court: Booking officers had particularized reasonable suspicion under Barnes/Swain, so the cavity search was permissible (affirmed) |
| 3) Whether the district court properly relied on Florence/Wolfish to allow a less-demanding standard | Government did not press Florence on appeal; district court erroneously cited Florence (a detention-facility rule) without record evidence of facility safety concerns | District court improperly invoked Florence; lower standard was not briefed or argued | Court: District court erred in applying Florence, but suppression denial is upheld on Barnes/Swain particularized-suspicion grounds |
Key Cases Cited
- United States v. Arvizu, 534 U.S. 266 (totality-of-circumstances reasonable-suspicion standard)
- Florence v. Bd. of Chosen Freeholders, 566 U.S. 318 (suspicionless searches in detention-facility intake context)
- Bell v. Wolfish, 441 U.S. 520 (reasonableness of searches on detainees in custodial settings)
- United States v. Barnes, 506 F.3d 58 (1st Cir.) (visual body cavity searches require particularized suspicion)
- Swain v. Spinney, 117 F.3d 1 (1st Cir.) (reasonable-suspicion standard governs strip and visual cavity searches)
- United States v. Dubose, 579 F.3d 117 (1st Cir.) (brief window/leaning-in contacts can support suspicion of drug transaction)
- Florida v. Rodriguez, 469 U.S. 1 (evasive movements can augment reasonable suspicion)
- United States v. Vargas, 633 F.2d 891 (1st Cir.) (evasive driving supports stop)
- United States v. Rasberry, 882 F.3d 241 (1st Cir.) (drug dealers commonly conceal drugs on person; supports search inference)
- United States v. Cofield, 391 F.3d 334 (1st Cir.) (recognition that controlled substances often are concealed on persons)