Commonwealth v. Agogo ( 2019 )

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SJC-12592
COMMONWEALTH vs. DONNE K. AGOGO.
Suffolk. December 3, 2018. - March 15, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Constitutional Law, Search and seizure, Probable cause. Search
and Seizure, Body examination, Probable cause. Probable
Cause. Practice, Criminal, Motion to suppress,
Interlocutory appeal.
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 leave 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
Commonwealth.
2
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 search procedure, we affirm.
1. Background. We reprise the motion judge's findings of
fact, supplemented, in part, by uncontroverted testimony at the
hearing on the motion to suppress. See Commonwealth v. Jones-
Pannell, 472 Mass. 429, 431 (2015); Commonwealth v. Morales, 462
Mass. 334, 335 (2012).1
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
1 The sole witness at the hearing was Detective Jose Torres,
Jr., of the Chelsea police department; the motion judge
explicitly credited his testimony.
3
"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. 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.
4
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 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.
2 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, 472 Mass. 429, 433 (2015).
5
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 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
3 Torres explained that a bladed stance refers to a fighting
position.
6
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. 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
4 The Commonwealth does not argue that an inventory search
was conducted at any point.
5 The record is unclear as to whether the defendant
undressed himself or whether the officers removed his clothing.
7
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 422 Mass. 1501 (1996),
seeking leave to pursue an interlocutory appeal, and a single
justice of this court allowed the appeal to proceed in the
Appeals Court. A divided panel of that court reversed the order
allowing the motion to suppress, see Commonwealth v. Agogo, 93
Mass. App. Ct. 495, 506 (2018), and we allowed the defendant's
petition for further appellate review.
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.
6 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.
8
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 principles to the facts as found."
See Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), quoting
Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
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, 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 Fourth Amendment [to the United
States Constitution] and art. 14 of the Massachusetts
Declaration of Rights." Id. at 553. As such, "before police
may command removal of an arrested person's last layer of
clothing, they must have probable cause to believe . . . that
they will find a weapon, contraband, or the fruits or
9
instrumentalities of criminal activity that they could not
reasonably expect to discover without forcing the arrested
person to discard all of his or her clothing" (citation
omitted). Id. at 553, 556. Reasonable suspicion is not enough.
Commonwealth v. Amado, 474 Mass. 147, 155 (2016).
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, 462 Mass. at 342.
It is undisputed that a strip search occurred here, and, because
we conclude that there was no probable cause to strip search the
defendant, we need not reach the question whether the strip
search was reasonably conducted.
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 engaging in street-level
drug distribution. Based on their training and experience, they
10
believed that individuals engaged in street-level drug
distribution may conceal drugs in the crotch area to avoid
detection. When police approached the defendant, he had taken a
"bladed" stance, and he had displayed an animated demeanor. He
also had pulled away from officers prior to their decision to
pat frisk him. After the patfrisk, officers discovered the
twenty dollars on the defendant's person; this amount was
consistent with the street value of the suspected cocaine they
found on Foster's person. Later, at the police station, when
police informed the defendant of his imminent strip search, he
vocally protested.
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
7 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, 462 Mass.
334, 340 n.4 (2012).
11
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 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, 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 cause 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 contraband. See generally 2 W.R. LaFave, Search and
Seizure § 3.6(b) (5th ed. 2018) ("If the package is concealed in
the groin area, a finding of probable cause is much more likely.
And even if the touching does not alone supply probable cause,
12
it may contribute together with other facts to a probable cause
finding" [footnote omitted]).8
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 one 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.
8 In Commonwealth v. Amado, 474 Mass. 147, 149, 155-156
(2016), the detection of a hard object behind the defendant's
testicles did not give rise to probable cause for a strip
search. The police had no evidence to suggest that the
defendant was involved in drug activity, and officers already
knew that the object was not a weapon, thereby dispelling any
safety concerns arising from an exit order and upon which the
attendant patfrisk was predicated.
13
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 (suspicion of contraband based on police
experience and training insufficient). Likewise, the
defendant's behavior justifying the patfrisk at the scene
(taking a bladed stance) is too attenuated in relation to the
later strip search that occurred at the police station. There,
the defendant's animated vocal displeasure at the prospect of
being subjected to a strip search is not the type of behavior we
9 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.
14
have recognized as affirmatively indicative of concealment.
Were it otherwise, the risk is that such a reaction to being
told of an imminent strip search readily could be induced, and
then used to justify the search. See Commonwealth v. Thibeau,
384 Mass. 762, 764 (1981) (police cannot "turn a hunch into a
reasonable suspicion by inducing the conduct justifying the
suspicion"). Cf. Commonwealth v. Alexis, 481 Mass. 91, 99-100
(2018) (police cannot justify warrantless search of home by
inducing exigency). To permit such a search in these
circumstances, absent an affirmative indication of concealment,
would be to authorize an inherently degrading strip search
whenever an ordinary search of a suspected drug dealer does not
yield evidence of the contraband police seek. We are
constrained by art. 14 from doing so. See 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.