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The Constitutionality of Strip Searches in Massachusetts

The United States Supreme Court will decide in its upcoming term the issue of whether or not a person entering a jail has a right to be free from strip search absent additional facts or individualized reasonable suspicion justifying the search. The Supreme Court has already held that the Fourth Amendment right to be free from unreasonable searches applies to strip searches and it held that there must be a greater justification from officials for strip searches than less intrusive searches. In Safford v. Redding, the Supreme Court held that public school officials violated the Fourth Amendment rights of a young teenager while at school when they searched her for drugs and subjected her to a strip search without any facts suggesting that drugs were hidden under her clothing.

This begs the question in a case where a defendant has been arrested by police in Massachusetts: What is the current law here and does it afford greater individual protections than what the United States Supreme Court has already recognized under the Fourth Amendment? In Massachusetts, searches and seizures of individuals by the police may be conducted at the time of an arrest or at a later point when the defendant arrives a the place of detention. However, for a strip search to be constitutionally permissible, the police must have probable cause to believe that the individual possesses concealed illegal contraband on his person or under clothing that would not be discovered by a routine pat down frisk that is usually performed upon an arrest. See Commonwealth v. Thomas, 429 Mass. 403, 409 (1999). What is probable cause? Probable cause is said to have been met when the facts and circumstances within the police officers knowledge and which they had reasonably trustworthy information are sufficient to “warrant a man of reasonable caution in the belief that an offense has been or is being committed.” See Commonwealth v. Hason, 387 Mass. 169, 174 (1982)

Therefore, the law in Massachusetts requires that there be probable cause to believe that the items sought by the police are actually related to the criminal activity that they are investigating and they can be reasonably expected to be found in the place searched based upon the known facts and circumstances at the time. See Commonwealth v. Truax, 397 Mass. 174, 178 (1986). The Massachusetts standard applying the probable cause analysis to strip searches and visual body cavity searches is greater than the Supreme Court Fourth Amendment analysis, which requires only that police have “reasonable suspicion” before conducting these intrusive searches.

Moreover, in Massachusetts, the Supreme Judicial Court has also indicated that there should be a written policy that police must follow when conducting strip searches. Appropriate procedures must be adhered to and only initiated in accordance with the written policy that has been set forth. See Commonwealth v. Prophete, 443 Mass. at 551, 557 (2005).

Have you been unlawfully stopped and searched in Massachusetts and charged with a crime? Patrick J. Murphy, Esquire is an experienced Boston and Massachusetts criminal defense lawyer with years of experience handling criminal matters involving illegal searches and seizures. Attorney Murphy has successfully argued in court to have evidence suppressed that has been unlawfully seized by the police when they have not followed the proper protocol and procedures when conducting searches. Attorney Murphy strongly advises you to hire an seasoned and knowledgeable Massachusetts criminal defense attorney if you have been arrested or charged with any case where the police have seized illegal drugs, weapons or other contraband.

Contact the Law Office of Patrick J. Murphy today to discuss the specific details of your case and to receive a free confidential consultation. You may call attorney Murphy directly by telephone at 617-367-0450 or by competing the contacts tab on the website. Attorney Murphy will return your call or email promptly and will be ready to assist you in your time of need right away.