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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.
