Commonwealth v. Agogo
Commonwealth v. Agogo
Opinion
*496
The defendant was charged by complaint in the Chelsea Division of the District Court Department with distribution of a class B controlled substance, conspiracy to violate the drug laws, and possession of cocaine with the intent to distribute. He filed a motion to suppress evidence and statements, and challenged the validity of a strip search. After an evidentiary hearing, the judge issued written findings and an order that allowed, in part, the defendant's motion as it related to evidence seized pursuant to the strip search, concluding that it was not supported by probable cause and conducted in violation of a written strip search policy. The Commonwealth filed a timely notice of appeal. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and reported the matter to this court. See G. L. c. 278, § 28E ; Mass.R.Crim.P. 15(a)(2), as appearing in
1. Background . The entirety of the Commonwealth's evidence at the suppression hearing was provided by Chelsea police Detective Jose Torres, Jr. Based on the evidence the judge found credible, he made the following findings of fact:
*669 a. The surveillance . At the relevant time, Detective Torres had been a member of the Chelsea police department for approximately eight and one-half years. For approximately the last one and one-half years, Torres had worked as a detective assigned to the drug unit. 2
Torres was familiar with the Bellingham Square area of Chelsea. The Bellingham Square area is considered to be a high crime *497 area. On March 25, 2016, Torres was working with Lieutenant Betz of the Chelsea police department conducting surveillance from an unmarked cruiser while in plain clothes. At approximately 9:00 P.M. , Torres and Betz were parked on Fourth Street between the intersection of Broadway and Division Street, an area adjacent to Bellingham Square. This location, which is both residential and commercial, was chosen for surveillance after the police received citizen complaints of street level drug dealing and drug use in this area.
Torres and Betz focused their attention on a multifamily residential building located at 9-11 Fourth Street (the building). The building was approximately eighty feet from the police surveillance position and on the same side of the street. From their vantage point, the officers had a largely unobstructed, well-lit view of the front area of the building.
b. The defendant arrives . After approximately twenty minutes of surveillance, Torres observed a person, later identified as the defendant, arrive at the front of the building. The defendant was accompanied by a woman. The defendant was not previously known to Torres and Betz. The defendant and the woman stood on the sidewalk in front of the building. On several occasions, Torres observed the defendant enter the building, remain inside the building and out of view for approximately thirty seconds, and then return to the sidewalk in front of the building. On at least one of these occasions, the woman accompanied the defendant into the building. Based upon his experience and training, Torres knew that it is common practice for persons engaged in street level drug distribution not to have drugs on their person. Instead, some drug purveyors keep drugs nearby in a "stash" location and periodically retrieve small quantities of drugs from it to sell, and then return to the stash location to retrieve another small quantity of drugs for the next sale.
Torres watched people walk in front of the building, passing by the defendant as he stood in front of the building. He saw the defendant attempt to initiate conversations with some of the pedestrians as they passed him. On one occasion, Torres saw the defendant walk with one of the pedestrians around the corner of Fourth Street onto Division Street, where they were out of view for five to ten minutes, and then return to the front of the building.
*498 Based upon his training and experience, Torres knew that it was common practice for drug dealers to consummate a drug transaction on a side street out of view in order to avoid detection. Fourth Street is a main street in Chelsea, while Division Street is a side street.
*670 c. The hand-to-hand sale . After conducting surveillance for approximately twenty to twenty-five minutes, Torres saw a man, later identified as James Foster, walk by the front of the building, stop, and appear to speak with the defendant. 3 Foster was unknown to the police. From his vantage point, Torres could see Foster "manipulating something in his hands" as he spoke with the defendant. Torres believed that Foster's hand movements were consistent with someone counting currency. The defendant and Foster then walked together on Fourth Street toward the surveillance position and turned right onto Division Street out of police view. Torres believed that a drug transaction was about to take place.
The police officers drove their cruiser on Fourth Street toward the building, turned left onto Division Street, and activated their emergency lights. As they turned onto Division Street, Torres saw the defendant and Foster standing face-to-face. It appeared that the defendant was handing an item to Foster, but Torres could not see the item. Foster was wearing a hooded sweatshirt with a pouch-like pocket in front that was accessible from the right or left side. After the interaction between the defendant and Foster, Torres watched Foster put his hands into the sweatshirt pocket. Based upon his experience and training, Torres believed that he had witnessed a hand-to-hand drug transaction. Having seen this, the officers drove up to where the defendant and Foster were standing and got out of the cruiser. Torres approached Foster. Betz approached the defendant. Both officers had their police badges displayed and they identified themselves as police officers.
d. The defendant's arrest . Torres told Foster that he was being stopped because the officers believed Foster was involved in a drug transaction. Torres told Foster to take his hands out of his sweatshirt pocket. Foster hesitated to comply with the order. Foster told Torres that he had a knife in his sweatshirt pocket; Torres was concerned for his safety. Torres removed the knife from the sweatshirt pocket. The knife was a folding knife. Upon *499 removing the knife, Torres observed in the pocket a clear plastic knotted bag containing a white powdered substance. Based upon his experience and training, Torres believed that the substance was cocaine packaged for street-level distribution. Foster was placed under arrest.
During the time that Torres spoke with Foster, Betz and the defendant stood about ten feet away. After arresting Foster, Torres approached Betz and the defendant. The defendant was not being compliant with Betz's orders. The defendant appeared to be upset and had taken a "bladed" stance toward Betz, i.e., a fighting stance. The defendant was "pulling away" from the police, apparently attempting to prevent Betz from conducting a search of his person. The defendant was "animated" in his speech and gestures; the officers were concerned for their safety. The defendant was pat frisked, which revealed nothing of significance. During a search of the defendant, the officers seized a twenty dollar bill. The defendant was arrested.
e. Booking and strip search . The defendant was transported to the station house and brought to the booking area. The officers commenced a routine booking procedure with the defendant. At some point, the booking procedure was suspended.
*671 The officers believed that the defendant, who had conducted a drug transaction, may have drugs concealed on his person because they had not found any drugs during the search incident to his arrest at the scene. Based upon his experience and training, Torres knew that persons engaged in street-level drug transactions commonly hid drugs in their crotch. The officers decided that a more thorough search of the defendant was necessary, and Betz decided to conduct a strip search of the defendant. The Chelsea police department has a written "Strip and Body Cavity Search Policy." Pursuant to that policy, Betz advised the defendant that he was going to be subjected to a strip search. The defendant responded in an "animated" manner, telling the police that they were "not going to do that."
Torres and Betz escorted the defendant to a cell near the booking area for the purpose of conducting a strip search. The cell was a private area. Only Torres, Betz, and the defendant were present during the search. Betz explained the strip search process to the defendant. The defendant was directed to remove his shirt, pants, underwear, shoes, and socks. He complied. Torres observed a red bandana in the defendant's crotch area, which was seized. Wrapped inside the bandana were seven small bags that contained *500 a white powdered substance believed to be cocaine. The defendant's clothes were returned to him, and the booking procedure was completed.
Based on this evidence, in a thoughtful memorandum of law, the motion judge determined that the stop, patfrisk, and seizure of money from the defendant, along with his arrest, were lawful. However, the motion judge concluded that the strip search was not supported by probable cause and was not conducted in accordance with the Chelsea police department's written strip search policy. Specifically, the motion judge concluded that "[t]he mere fact that the police did not find drug contraband on the defendant in their initial search incident to arrest cannot serve, absent other supporting facts not present here, to justify a strip search." However, because there are other facts here that support a finding of probable cause, this was error.
2. Discussion . a. Probable cause . The defendant claims, and the motion judge concluded, that the police lacked probable cause to justify the strip search of the defendant. We disagree for the following reasons.
There is no dispute that the police had probable cause to arrest the defendant for possession of cocaine with the intent to distribute, and to search him incident to that arrest, as they had witnessed him sell cocaine to Foster. Indeed, "[o]nce a custodial arrest occurs, as did here, no additional justification is required for a search of the person for weapons that otherwise might be used to resist arrest or to escape, or to discover evidence of the crime for which the arrest was made."
Commonwealth
v.
Prophete
,
"Probable cause exists where 'the facts and circumstances within ... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves
*501
to warrant a man of reasonable caution in the belief that' an offense has been or is being committed."
Commonwealth
v.
Hason
,
Probable cause must be determined based on the totality of the circumstances known to the police. See
Commonwealth
v.
Prophete
,
supra
at 554-555,
Several factors and circumstances in this case establish probable cause to believe that the defendant was secreting contraband on his person; as a result, the strip search was justified. What occurred can be distilled into six salient facts and circumstances: (1) the police were conducting surveillance in an area known for illegal drug dealing; (2) the defendant's conduct was consistent with someone engaged in street-level drug dealing; (3) the police witnessed the defendant sell cocaine to Foster; (4) the defendant attempted to evade, in an animated manner, a search of his person at the scene; (5) based on Torres's experience and training, he knew that the crotch area is commonly used by drug dealers to conceal narcotics; and (6) at the police station, when the police *502 told the defendant they were going to conduct a strip search, the defendant again protested in an animated fashion.
Based on the salient facts outlined in (1) though (5), there was sufficient reasonably trustworthy information to warrant a person of reasonable caution to believe that the defendant still had drugs on his person. See
Commonwealth
v.
Prophete
,
This conclusion becomes even more apparent if the salient fact in (6) is added to the probable cause calculus, i.e., when told that he was going to be strip searched, the defendant staged an animated protest in the booking area.
6
While it is, of course, understandable that a person would not relish the indignity of a strip search, the probable cause inquiry does not require the government to exclude other possible explanations for behavior or circumstances that do not equate to probable cause. See
Commonwealth
v.
Hason
,
At bottom, the defendant's animated protest to the strip search may properly be considered in gauging whether it was supported by probable cause. See
Commonwealth
v.
Battle
,
There is similarly no merit to the dissent's assertion that because the police lacked probable cause "at the time" they told the defendant they were going to conduct the strip search, see
post
at 513-514, 104 N.E.3d at 681, the defendant's protest cannot be used in the probable cause analysis. Even if this were true (and as outlined above, it is not), the fundamental flaw of this assertion is that
*504
probable cause to support a strip search must objectively exist "at time the search was made,"
Commonwealth
v.
Amado
,
The totality of the circumstances, when viewed collectively, provided sufficient factual and practical considerations, from which a reasonable and prudent person could conclude that the defendant was concealing drugs on his person. 8
*675
*505
b.
Strip search policy
. The motion judge also concluded that the strip search of the defendant failed to comply with the Chelsea police department's written strip search policy (the policy) because the search was not authorized by the "officer in charge." This was not a ground raised in the defendant's motion to suppress or in his affidavit in support thereof. See Mass.R.Crim.P. 13(a)(2), as appearing in
The policy does not define the phrase "officer in charge." The evidence at the suppression hearing was that Detective Torres and Lieutenant Betz did not together make the decision to conduct a strip search, because the decision was for Betz alone to make. Later, Torres clarified that because Betz was Torres's "commanding officer," Betz made "the final decision to authorize the strip search." Although the judge concluded that the strip search was not authorized by the "officer in charge," he did not do so by finding that a "commanding officer" does not qualify as an "officer in charge." Rather, he mistakenly stated that there was no testimony supporting the conclusion that Betz was the commanding officer, which is clearly erroneous.
9
See
Commonwealth
v.
Castillo
,
However, even if Betz's prior approval as the commanding officer did not satisfy the policy's dictates, neither the Supreme Judicial Court nor this court has required adherence to such a policy to find a strip search justifiable.
Commonwealth
v.
Vick
, 90 Mass. App. Ct. at 631 n.15,
Instead, the reasonableness of a strip search is assessed by a variety of factors, such as privacy in the place where the search is conducted, minimizing the number of persons present during the search, and having a person of the same gender as the defendant conduct the search; each case is to be judged on its own facts. See
Commonwealth
v.
Morales
,
supra
at 342-343,
In view of the above factors, this strip search was conducted in a reasonable and respectful manner, which outweighed the lack of prior approval by the officer in charge, to the extent that that occurred at all. See
Commonwealth
v.
Vick
,
3. Conclusion . As the strip search was supported by probable cause and conducted reasonably, it was error to suppress the fruits of that search. We reverse so much of the order as allowed the motion to suppress the evidence obtained as a result of the strip search.
So ordered .
SULLIVAN, J. (dissenting, with whom Henry, J., joins).
*507
Today's decision blurs the distinction between probable cause to search (which was present here) and probable cause to conduct a strip search (which was not), and dispenses with the need for the type of specific, particularized probable cause to conduct a strip search required since
Commonwealth
v.
Thomas
,
The Supreme Judicial Court has held that "the search of the defendant lawfully could progressively extend into a strip (or a visual body cavity) search only if such a search was justified by probable cause to believe that the defendant had concealed [drugs] on his person or his clothing that would not otherwise be discovered by the usual search incident to arrest."
Commonwealth
v.
Prophete
,
On the facts found by the motion judge, the evidence here was insufficient to establish probable cause to believe that the defendant had secreted drugs in such a way as to necessitate a strip search. Because the police lacked probable cause to believe that they would find contraband in
*677
the private areas of his body, they lacked a lawful basis to conduct a strip search, that is a search which requires "the arrested person to discard all of his or her clothing,"
Commonwealth
v.
Prophete
,
supra
at 556,
These are the relevant facts as found by the motion judge, supplemented by undisputed facts that he implicitly credited, and that are consistent with his ruling. See
Commonwealth
v.
Jones-Pannell
,
On March 25, 2016, at approximately 9:00 P.M. , Officer Jose Torres, Jr. and Lieutenant Betz of the Chelsea police department drug unit were conducting surveillance near the Bellingham *508 Square area of Chelsea. The officers had received citizen complaints of illegal drug activity and prostitution in the general area of their surveillance position. The officers focused on a multifamily residential building located at 9-11 Fourth Street (building).
After twenty minutes, Torres saw the defendant, whom he did not know, arrive at the front of the building with a woman. On three to five occasions, Torres saw the defendant go into the building, remain inside the building and out of view for thirty seconds, and then "take a short walk" of five or ten minutes duration. He then returned and went into the building again. Torres testified that it is "common practice for street-level dealers to retrieve the item that they're looking to sell, the narcotics, and make that [sale] and then return back to the stash location ... and re-up."
The judge credited this testimony explicitly, stating that Torres was "aware that it is common practice for persons engaged in street level drug distribution to not have a drug stash on their person, but to retrieve a small quantity of drugs from a stash location, sell the drugs, and then return to the stash location to retrieve another small quantity of drugs to sell." 2 Consistent with Commonwealth v. Jones-Pannell , supra , we treat this as the judge's finding on this issue.
After twenty-five minutes of surveillance, Torres saw a pedestrian, later identified as James Foster, speaking with the defendant in front of the building. As set forth in the majority opinion, the police observed what they believed to be a hand-to-hand drug transaction, leading to Foster's arrest and the discovery of drugs in the pocket of Foster's sweatshirt.
After placing Foster under arrest, Torres approached Betz and the defendant. The defendant was upset, animated in his speech and gestures, and did not comply with Betz's orders. He took a "bladed" stance, which the judge found to be a "fighting" stance. The defendant pulled away from the officers in an "apparent[ ] attempt[ ]" to prevent Betz from searching *678 him. The officers eventually conducted a search of the defendant and found no *509 weapons or drugs, but did discover a twenty dollar bill, a dollar value consistent with the amount of cocaine discovered on Foster. The defendant was placed under arrest and transported to the police station.
During booking, the officers decided that a more thorough search of the defendant was necessary to determine if he had concealed drugs on his person. This decision was based on the fact that they had not found drugs during the search, and Torres's belief that the groin area was a common place for dealers to hide their contraband to avoid detection from law enforcement.
Betz informed the defendant that he was going to be strip searched. In response, the defendant became animated and stated that the officers were "not going to do that." 3 Torres and Betz brought the defendant to a private cell and explained the strip search process. The defendant complied with the command to remove his shirt, pants, underwear, socks, and shoes. The officers saw a red bandana in the defendant's crotch area. Upon inspection of the red bandana, the officers discovered seven small bags containing a white powdered substance believed to be cocaine.
The motion judge concluded that the fact that the police did not find drugs on the defendant during the initial search was not, "absent other supporting facts not present here," sufficient to justify the strip search.
Discussion
. In reviewing a decision on a motion to suppress, we must accept the motion judge's "subsidiary findings absent clear error but conduct an independent review of the ultimate findings and conclusions of law."
Commonwealth
v.
Jones-Pannell
,
"[S]trip or bodily 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."
Commonwealth
v.
Prophete
,
This means that the officers had to have probable cause to believe that the defendant was hiding drugs in the intimate areas of his body, and that moving or removing all his clothes would be necessary to
*679
find them. However, such probable cause is lacking here. The police did not report feeling any object near the defendant's groin or buttocks. Contrast
Commonwealth
v.
Clermy
,
The prosecutor expressly urged the motion judge to make a finding that the defendant was shielding his groin area. The Commonwealth relied on Torres's testimony that he thought the defendant's "crotch area" warranted further attention because the defendant distanced himself and took a bladed stance before the patfrisk was conducted.
5
However, when asked by the prosecutor what distancing meant, Torres answered that the defendant was
*511
distancing his whole body, not any particular area of the body.
6
The motion judge's decision not to make a factual finding that the defendant was shielding his groin area was supported by the record, and was not the product of inadvertence or oversight. It is not for us to supplement that determination with a contrary finding.
Commonwealth
v.
Jones-Pannell
,
The Commonwealth has not cited, and we have not found, a Massachusetts case validating a strip search in the absence of some evidence that the contraband was hidden in a private area of the defendant's body. As just discussed, the police did not feel any object near, and did not see the defendant reach toward, his groin area. Nor was there any evidence that the defendant stayed on the street after making sales, thus permitting an inference that he had concealed drugs on his body. Contrast
Commonwealth
v.
Thomas
,
In this case, a finding of probable cause must rest, then, on an assessment of four remaining factors: (1) the defendant took a fighting stance and was pulling away as if to avoid the patfrisk; (2) the defendant had previously gone inside the building to *512 "re-up"; (3) Torres's testimony that drug dealers frequently hide drugs in the groin area; and (4) the defendant's resistance to being strip searched at the police station.
We recognize that "probable cause ... deal[s] with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."
Commonwealth
v.
Prophete
,
Torres's general knowledge that some drug dealers "jock" drugs is insufficient to establish a particularized suspicion, much less probable cause, to believe that this defendant was doing so. See
Commonwealth
v.
Amado
,
The majority attempts to bridge this evidentiary gap in three ways. First, it relies on the evidence that a drug deal took place. That evidence is relevant to the propriety of the search incident to arrest, but says nothing about whether there were drugs on the *513 defendant's person requiring the removal of the defendant's clothing.
Second, the majority also states that the judge's findings about the defendant returning to the building are unsupported, speculating instead that "it is also just as likely that the defendant held more drugs on his person for each sale."
Ante
at 504 n.7, 104 N.E.3d at 674 n.7. The evidence in
*681
the record on this point was to the contrary. Unlike the defendant in
Commonwealth
v.
Thomas
,
Third, the majority relies on the defendant's protest of the strip search, asserting that this protest, together with all the other facts and circumstances, provides a substantial basis for a finding of probable cause as a matter of law. The defendant's statement that the officers "were not going to do that" was offered to show consciousness of guilt.
9
This evidence may not be relied upon to tip the scales in favor of probable cause, however. At the time that
*514
the officers told the defendant that they would strip search him, they lacked probable cause to do so. The defendant's protest of a search without probable cause cannot create probable cause for a search. "Were the rule otherwise, the police could turn a hunch into [probable cause] by inducing the conduct justifying the [search]."
Commonwealth
v.
Thibeau
,
A generalized suspicion that drug dealers may jock drugs, coupled with the protest of an unlawful demand for an unconstitutional search, do not probable cause make. Accordingly, I respectfully dissent.
While in the drug unit, Torres participated in approximately fifty drug investigations. Prior to being assigned to the drug unit, Torres participated in over 100 drug related arrests. At the outset of his police career, Torres completed a training course at the Lowell police academy in basic police practices and procedures. During his career as a police officer, Torres received regular training, including instruction in drug recognition, common methods of packaging for street level drug distribution, quantities of drugs commonly bought and sold on the street, and street terms often used in the drug trade. During his time as a member of the Chelsea police department, Torres witnessed in excess of seventy street-level hand-to-hand drug transactions.
The woman had left at some point during the period of surveillance prior to Foster's arrival.
Here, there is also no dispute that the defendant was strip searched. See
Commonwealth
v.
Vick
,
The Commonwealth seeks to add an additional "key fact" that it claims the motion judge "ignored," which is Torres's testimony that the defendant was "distancing" his "crotch area" from the police. While the evidentiary support for this was thin at best, and the judge was not required to credit that testimony, we need not resolve the issue because probable cause existed even in the absence of such evidence.
Contrary to the dissent's suggestion, see
post
at 512 n.9, 104 N.E.3d at 681 n.9, the judge found that "Betz advised the defendant that he was going to be subjected to a strip search. The defendant responded in an animated manner telling the police that they were 'not going to do that.' " Characterizing this as an animated protest against a strip search or as consciousness of guilt neither changes the judge's finding of fact nor contravenes
Commonwealth
v.
Jones-Pannell
,
Contrary to the dissent's view, see
post
at 512, 104 N.E.3d at 680-81, the motion judge did not find that the defendant consistently returned to the building to "re-up" in order "to not have a drug stash on [his] person." The judge made no such finding, and if he had, it would not have been properly supported by the record. Although the police saw the defendant going in and out of the nearby building, and Torres was aware that it is "common practice" for street-level drug dealers to use "a stash location" rather than storing drugs on their person, there was no evidence that this defendant did so. In fact, it is just as likely that the defendant held more drugs on his person for each sale because he was without knowledge as to how much each buyer intended to purchase. In the end, practical considerations of everyday life would lead a prudent person, with knowledge of methods of concealing narcotics on a dealer's person, to reasonably conclude that the defendant's animated opposition to a further search of his person indicated that he was either not employing a stash at the building, or that he was, but nevertheless also possessed drugs from that stash on his person. See
Commonwealth
v.
Thomas
,
The dissent relies on
Commonwealth
v.
Warren
,
The judge did not have the benefit of the transcript at the time.
The motion judge's findings were prefaced with the statement: "Based upon the credible evidence presented at the hearing on the defendant's motion to suppress on August 19, 2016, the court finds as follows."
The judge described Torres, the only witness to testify at the suppression hearing, as a highly experienced officer who had received "in service training" in drug recognition and distribution, and who had participated in fifty drug investigations while a member of the drug unit, had made over 100 drug arrests before joining the drug unit, and had witnessed over seventy street-level hand-to-hand drug transactions.
Torres testified that the defendant "was being animated, passive, not willing to comply."
In addition, "to pass constitutional muster, the strip searches must have been reasonably conducted under the circumstances."
Commonwealth
v.
Amado
,
Q .: "Based on your interaction with [the defendant] on the street, was there a particular area of his body that you thought warranted further attention?"
A .: "Yes."
Q .: "What was that?"
A .: "The crotch area."
Q .: "And why did you think that?"
A .: "That was where he was distancing himself from us during the encounter on the street, during the search, the pat-frisk."
Q .: "Okay. When you said he was trying to create distance between the two of you, was it any specific part of his body that he was pulling away any more than-"
A .: "Well, just more so his body."
Barnes
involved a visual bodily cavity search. Under the Fourth Amendment to the United States Constitution, a strip search may be justified upon arrest for drug distribution, but a visual body cavity search requires a more particularized suspicion that contraband is being concealed.
United States
v.
Barnes
,
In stating his ultimate conclusions, the motion judge also specifically stated that "other ... facts" supporting probable cause were "not present here."
As a general matter, there are many reasons why a defendant might protest a strip search, not the least of which is, as the Supreme Judicial Court has pointed out, that strip searches are a substantial and highly charged intrusion on personal privacy rights.
Commonwealth
v.
Thomas
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.