COMMONWEALTH vs. DONNE K. AGOGO
SJC-12592
Supreme Judicial Court of Massachusetts
March 15, 2019
Suffolk. December 3, 2018. - March 15, 2019. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
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Complaint received and sworn to in the Chelsea Division of the District Court Department on March 28, 2016.
A pretrial motion to suppress evidence was heard by D. Dunbar Livingston, J.
An application for leаve to prosecute an interlocutory appeal allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Michael A. Frates for the defendant.
Amanda Teo, Assistant District Attorney, for the Commonweаlth.
LENK, J. The Commonwealth appeals from a District Court judge‘s order allowing the defendant‘s motion to suppress narcotics seized from the defendant‘s crotch area as the result of a strip search that took place in a cell at the Chelsea police station. The motion judge determined that police did not have probable cause to believe that the defendant was concealing contraband on his person so as to justify conducting a strip search. Because we agree that the police lacked the requisite probable cause to believe that the defendant had concealed narcotics somewhere on his person that could not have been detected through an ordinary sеarch procedure, we affirm.
1. Background. We reprise the motion judge‘s findings of fact, supplemented, in part, by uncontroverted testimony at the hearing
a. Police surveillance. On an evening in March of 2016, at approximately 9 P.M., Detective Jose Torres, Jr., and Lieutenant Detective David Betz of the Chelsea police department were conducting surveillance near Bellingham Square in Chelsea. Torrеs reported that, in his opinion, Bellingham Square is a “high crime” area. In addition, in the spring of 2016, the Chelsea police department had received several complaints from citizens regarding illicit drug activity and the solicitation of sexual services near Bellingham Square.
The officers were sitting in an unmarked police vehicle and were focused particularly on a nearby multifamily apartment building. They observed the defendant standing with a woman on the sidewalk outside the building. While they watched, the defendant repeatedly entered the apartment building, remained inside for approximately thirty seconds, and then returned to the sidewalk in front of the building. On at least one of these occasions, the woman accompanied the defendant inside the building. Bаsed on his training and experience in the narcotics unit, Torres believed that it was common for individuals engaged in street-level drug transactions to maintain the bulk of their narcotics elsewhere, so as not to have drugs on their persons if stopped, and to return to the “stash location” after a sale in order to retrieve drugs for a new sale (“re-up“). Torres believed that thе defendant was engaging in this practice.
The officers saw the defendant initiate conversations with several pedestrians passing by on the sidewalk. On one occasion, a pedestrian stopped and spoke with the defendant; the two then walked around the corner, where they remained out of the officers’ sight for approximately five to ten minutes. Torres beliеved that the defendant had conducted a drug transaction on the side street in order to avoid being seen by anyone on the main street.
After approximately twenty minutes of observation, and having become increasingly suspicious of the defendant‘s behavior, the officers saw an individual, later identified as James Foster, approach the defendant, who was again standing outside the apartment building. Torres noticed that Foster was “manipulating something in his hands” as he spoke to the defendant; Torres believed
When the officers pulled onto the side street, they saw the defendant and Foster standing facing one another. Torres believed that the defendant handed an item to Foster. Torres could not see the item, but thought that he had just witnessed a hand-to-hand drug transaction; therefore, he and Betz got out of their vehicle and approaсhed the two men.
As he approached, Torres requested that Foster remove his hands from his sweatshirt pocket. Although Foster initially was hesitant to comply, he told Torres that it was because he had a knife in his front pocket. When Torres removed the knife from Foster‘s sweatshirt pocket, he saw a clear bag containing a white substance, which he believed to be cоcaine. Foster subsequently was arrested.
Torres then approached the defendant, who had been speaking with Betz. The defendant appeared to be upset and animated, and he was not complying with Betz‘s demands. Torres stated that the defendant had taken a “bladed” stance toward Betz and was pulling away from the officers.3 This led Torres to fear for his safety, so he determined a patfrisk was necessary. The officers did not find any weapons or drugs, but they did seize a twenty dollar bill from the defendant. In Torres‘s experience, the amount of suspected cocaine found on Foster‘s person had a street value of roughly twenty dollars. The defendant was arrested.
b. The strip search. The defendant was brought to the Chelsea police station, where officers began a routine booking procedure. At some point, police suspended the booking procedure because the arresting officers believed that the defendant could have had drugs concealed on his person.4 More specifically, Torres testified that, in his experience, it is common for street-level drug distributors to conceal drugs in their crоtch area to avoid detection. The officers thus determined that a “more thorough search of the defendant was necessary,” and decided to conduct a strip search.
Torres аnd Betz escorted the defendant to a nearby cell and ordered that he remove his shoes and socks, as well as his shirt, pants, and underwear.5 When the defendant was fully undressed, the two officers saw a red bandana and seized it from his groin area. The bandana contained what they believed to be seven small bags of cocaine. The officers returned the defendant‘s clothing, allowed him to dress, and then resumed the booking procedure.
c. Prior proceedings. The defendant was charged with distribution of a class B substance,
The Commonwealth filed a petition pursuant to
2. Discussion. In reviewing a decision on a motion to suppress, “we accept the judge‘s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.‘” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). “[O]ur duty is to make an independent determination of the correctness of the judge‘s application of constitutional
a. Applicable standards. Thе motion judge determined that the officers had probable cause to arrest the defendant on drug charges, and that they were justified, therefore, in searching the defendant for evidence of drugs incident to that arrest. Searches incident to arrest, however, “may be unconstitutional notwithstanding the lawful arrest, because they involve inspections of such a highly personal nature, or are conducted in such a manner, as to constitute an unreasonable intrusion on an individual‘s privacy.” Commonwealth v. Prophete, 443 Mass. 548, 555 (2005), and cases cited. Indeed, “strip or visual body cavity searches, by their very nature, are humiliating, demeaning, and terrifying experiences that, without question, constitute a substantial intrusion on one‘s personal privacy rights protected under the
In addition to the probable cause requirement, for a strip search to be constitutional under the
b. Probable cause. In making a probable cause determination, “as the very name implies, we deal with probabilities[,] . . . the factual and practical considerations of everyday life on which reasonable and prudent [individuals], not legal technicians, act.” See Commonwealth v. Cast, 407 Mass. 891, 895-896 (1990), quoting Draper v. United States, 358 U.S. 307, 313 (1959). The factual and practical considerations known to the police at the time they concluded that a strip search was necessary here were as follows. The officers determined that the defendant had been
On these facts, it is evident that the officers had, at best, a reasonable suspicion that the defendant could be concealing contraband in his crotch. When determining whether a strip search is constitutionally permissible, however, a reasonable suspicion is not enough. See Prophete, 443 Mass. at 553 (reasonable suspicion to initiate strip search is sufficient under Fourth Amendment, but probable cause is required under art. 14).7 Probable cause requires some affirmative indication that drugs or other contraband are being concealed in areas such as the crotch or groin.
The requisite affirmative indication that contraband or weapons are being secreted in very рrivate parts of the body may take a number of forms, as our cases have recognized. It may be the sight or feel of an unusual object or protrusion that supplements police suspicion of drug involvement. See, e.g., Commonwealth v. Clermy, 421 Mass. 325, 330-331 (1995) (police suspicion supplemented when, during patfrisk, they felt hard plastic prescription drug container hidden in defendant‘s groin); Commonwealth v. Vick, 90 Mass. App. Ct. 622, 624-625, 630-631 (2016) (probable causе to conduct strip search where, during patfrisk, officer felt hard object in cleft of defendant‘s buttocks). When a hard object or suspicious bulge is detected, it is more likely to amount to probable cause if the confluence of factors otherwise known to police at the time of the strip search confirms their belief that the object is a weapon or сontraband. See generally 2 W.R. LaFave, Search and Seizure § 3.6(b) (5th ed. 2018) (“If the package is
The requisite affirmative indication also may be found in behaviors suggesting that the defendant is hiding something somewhere on his person that a patfrisk reasonably could not discover, absent divestiture of the arrestee‘s clothing. For example, such an indication may emerge when, during an ordinary search or patfrisk, the arrestee is seen notably attempting to block his or her groin, buttocks, breasts, or genital area from police view or reach. See Prophete, 443 Mass. at 554-555 (police suspicion supplemented when defendant twice used hands to protect groin area during patfrisk). See also Commonwealth v. Thomas, 429 Mass. 403, 408 (1999) (probable cause to strip search defendant after police saw his associate obtain from him two bags of cocaine, sell one bag to undercover officer, and return with onе bag and money to defendant, who appeared to serve as his associate‘s “stash” location).
Here, there was no affirmative indication that the defendant was secreting contraband or weapons in his groin area. After finding only a twenty dollar bill on the defendant and arresting him, the officers had nothing more than a generalized suspicion that this street-level drug dealer, who likely kept a stash of drugs in the nearby apartment building, had them on his person.9 The officers felt or saw nothing indicative of concealed contraband after searching him at the scene, and the defendant did not attempt, at any point, to block officers from reaching or viewing his groin area. There also was no evidence that the officers ever saw the defendant place anything in his crotch, reach for his crotch, or walk in a manner consistent with there being an object concealed in his crotch.
The officer‘s training and experience as to the general practices of street-level drug dealers do not constitute the requisite particularized indication of concealment. Cf. Amado, 474 Mass. at 155
3. Conclusion. While we are mindful that a strip search may, at times, be necessary to effectuate the legitimate ends of law enforcement or to protect public safety, on the facts found by the motion judge, the police lacked probable cause to conduct a strip search of this defendant.
Order allowing motion to suppress affirmed.