Commonwealth v. Agogo
Commonwealth v. Agogo
Opinion
**633 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 search procedure, we affirm.
1.
Background
. We reprise the motion judge's findings of fact, supplemented, in part, by uncontroverted testimony at the hearing
**634
on the motion to suppress. See
Commonwealth
v.
Jones-Pannell
,
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. Torres 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 *253 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. Based 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 the 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 believed 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 **635 that Foster was counting currency. Foster and the defendant then turned and walked around the corner, where they were no longer in view of the officers. 2 Because the officers believed a drug transaction was about to take place, they, too, rounded the corner.
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 approached 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 cocaine. 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 *254 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 crotch 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.
**636 Upon being told that he was to comply with the strip search, the defendant responded in a verbally animated manner and protested that the officers were "not going to do that."
Torres and 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, G. L. c. 94C, § 32A ; conspiracy to violate the drug laws, G. L. c. 94C, § 40 ; and possession with intent to distribute, G. L. c. 94C, § 32A ( c ). He moved to suppress the drugs seized, inter alia, on the ground that the drugs were obtained as a result of an unconstitutional strip search. After an evidentiary hearing, the judge found that police did not have probable cause to conduct a strip search of the defendant, and allowed his motion to suppress. 6
The Commonwealth filed a petition pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in
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
,
a.
Applicable standards
. The 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
,
In addition to the probable cause requirement, for a strip search to be constitutional under the United States Constitution and the Massachusetts Declaration of Rights, "such searches also must be reasonably conducted." See
Morales
,
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
,
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
*256
permissible, however, a reasonable suspicion is not enough. See
Prophete
,
The requisite affirmative indication that contraband or weapons are being secreted in very private 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
,
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
,
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 *257 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
,
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 .
The sole witness at the hearing was Detective Jose Torres, Jr., of the Chelsea police department; the motion judge explicitly credited his testimony.
The judge made no finding as to whether the defendant had "re-upped" before engaging with Foster, and there was no testimony from Torres to this effect. See
Commonwealth
v.
Jones-Pannell
,
Torres explained that a bladed stance refers to a fighting position.
The Commonwealth does not argue that an inventory search was conducted at any point.
The record is unclear as to whether the defendant undressed himself or whether the officers removed his clothing.
The defendant also moved to suppress on the grounds that police lacked reasonable suspicion to justify the initial stop and frisk, and that his arrest was not supported by probable cause. The judge denied the motion on those two grounds, from which the defendant does not appeal. The sole issue before us is whether the officers had probable cause to justify conducting a strip search of the defendant.
A strip search is not as intrusive as a manual body cavity search, "which involves some degree of touching and probing of body cavities" and therefore requires "a strong showing of particularized need supported by a high degree of probable cause" (citations omitted).
Commonwealth
v.
Morales
,
In
Commonwealth
v.
Amado
,
Where police believed that a sale to Foster had just been consummated, there would be no likely reason why the defendant would continue to have had drugs on his person if he only retrieved enough from a stash for each sale.
Reference
- Full Case Name
- COMMONWEALTH v. Donne K. AGOGO.
- Cited By
- 7 cases
- Status
- Published