On September 21, 2007, a local Police Officer observed a motor vehicle in a residential area traveling at 30 miles per hour in a 20 miles per hour zone. The officer pulled the car over and when he called in his “stop” he allegedly observed the operator, later identified as the defendant, slide down in his seat and pulling his hand out of his pants. The officer ultimately determined that the defendant's right to operate a motor vehicle was suspended and the defendant was paced under arrest for operating with a suspended license. The officer conducted a pat frisk for weapons and did not find any.
During the pat search the officer observed that the defendant was wearing layered clothing and claimed that this attire was consistent with a person hiding drugs on himself. Upon returning to the police station, the officer conducted a strip search and found a substance he believed was heroin and glass pipes in the defendant's possession.
Attorney McCarthy filed a motion to suppress the evidence and argued that the confiscation of the heroin and paraphernalia violated the defendant's state and federal constitutional rights to a reasonable expectation of privacy. Specifically, she claimed that the seizure of the evidence was unlawful for the following reasons:
1. said evidence was not seized pursuant to a lawful arrest;
2. it was not in plain view;
3. there was no probable cause;
4. no warrant;
5. no exigent circumstances;
6. not pursuant to a lawful stop-and-frisk;
7. not consented to;
8. there was no reasonable suspicion or probable cause to stop and/or seize the car,
question the defendant and/or search the defendant;
9. and stop and search were in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article 14 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and M.G.L. c. 276 §1 et seq.
Following an evidentiary hearing the judge allowed Attorney McCarthy's motion holding that the strip search of the defendant was overly intrusive and unreasonable.