Commonwealth v. Agogo

481 Mass. 633

119 N.E.3d 251

COMMONWEALTH

v.Donne K. AGOGO.

SJC-12592

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 3, 2018

Decided March 15, 2019

Michael A. Frates, New Bedford, for the defendant.

Amanda Teo, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

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, 35 N.E.3d 357 (2015) ; Commonwealth v. Morales, 462 Mass. 334, 335, 968 N.E.2d 403 (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 "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. 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.

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 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 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, 104 N.E.3d 666 (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, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (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, 880 N.E.2d 759 (2008), quoting Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (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, 823 N.E.2d 343 (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, 823 N.E.2d 343. 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 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, 823 N.E.2d 343. Reasonable suspicion is not enough. Commonwealth v. Amado, 474 Mass. 147, 155, 48 N.E.3d 414 (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, 968 N.E.2d 403. It is undisputed that a strip search occurred here, and, because we conclude that there was no probable cause to strip search the...