Commonwealth v. Agogo

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17-P-199 Appeals Court

COMMONWEALTH vs. DONNE K. AGOGO.

No. 17-P-199.

Suffolk. January 10, 2018. - June 29, 2018.

Present: Trainor, Meade, Hanlon, Sullivan, & Henry, JJ.1

Constitutional Law, Search and seizure, Probable cause. Search
and Seizure, Body examination, Probable cause. Probable
Cause. Practice, Criminal, Motion to suppress.

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 was allowed by Margot Botsford, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.

Amanda Teo, Assistant District Attorney, for the
Commonwealth.

1 This case was initially heard by a panel comprised of
Justices Meade, Sullivan, and Henry. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Justices
Trainor and Hanlon. See Sciaba Constr. Corp. v. Boston, 35
Mass. App. Ct. 181, 181 n.2 (1993).
2

Michael A. Frates for the defendant.

MEADE, J. The defendant was charged by complaint in

Chelsea District Court 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 which 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 422 Mass. 1501 (1996).

We conclude that the strip search was proper and therefore

reverse the order which allowed, in part, the motion to

suppress.

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:
3

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 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.

2 While in the drug unit, Torres participated in
approximately fifty drug investigations. Prior to being
assigned to the drug unit, Torres participated in over one
hundred 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.
4

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 to not have drugs on his 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.
5

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. 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.

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

3 The woman had left at some point during the period of
surveillance prior to Foster's arrival.
6

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
7

knife from the sweatshirt pocket. The knife was a folding

knife. Upon 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. The officers believed that the defendant, who had

conducted a drug transaction, may have drugs concealed on his
8

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 which contained 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
9

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, 443 Mass. 548, 552 (2005).

See G. L. c. 276, § 1. To lawfully extend an initial search
10

into a strip search,4 the strip search must be "justified by

probable cause to believe that the defendant had concealed

[cocaine] on his person or his clothing that would not otherwise

be discovered by the usual search incident to arrest."

Commonwealth v. Prophete, supra at 554. See Commonwealth v.

Thomas, 429 Mass. 403, 408 (1999). See also Cypher, Criminal

Practice and Procedure § 5:133, at 450-542 (4th ed. 2014).

"Probable cause exists where 'the facts and circumstances

within . . . [the officers'] knowledge and of which they had

reasonably trustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in the belief

that' an offense has been or is being committed." Commonwealth

v. Hason, 387 Mass. 169, 174 (1982), quoting from Brinegar v.

United States, 338 U.S. 160, 175-176 (1949). See Carroll v.

United States, 267 U.S. 132, 162 (1925). "The officers must

have entertained rationally 'more than a suspicion of criminal

involvement, something definite and substantial, but not a prima

facie case of the commission of a crime, let alone a case beyond

a reasonable doubt.'" Commonwealth v. Keefner, 461 Mass. 507,

517 (2012), quoting from Commonwealth v. Santaliz, 413 Mass.

238, 241 (1992). See Texas v. Brown, 460 U.S. 730, 742 (1983)

4 Here, there is also no dispute that the defendant was
strip searched. See Commonwealth v. Vick, 90 Mass. App. Ct.
622, 628 (2016).
11

(probable cause "does not demand any showing that" a reasonable

belief that contraband may be concealed is "correct or more

likely true than false"); Commonwealth v. Garcia, 34 Mass. App.

Ct. 645, 650 (1993) (same). Indeed, in cases involving the

seizure of contraband, "probable cause is a flexible, common-

sense standard." Carroll v. United States, supra. In the end,

"[i]n dealing with "probable cause . . . we deal 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."

Brinegar v. United States, supra at 175. See Grasso & McEvoy,

Suppression Matters Under Massachusetts Law § 8-1 (2017).

Probable cause must be determined based on the totality of

the circumstances known to the police. See Commonwealth v.

Prophete, supra at 554-555; Commonwealth v. Hernandez, 448 Mass.

711, 715 (2007). The facts and circumstances are to be viewed

collectively, not in isolation. See Commonwealth v. Santaliz,

supra at 241; Commonwealth v. Lawrence L., 439 Mass. 817, 823

(2003).

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
12

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 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, 443 Mass. at 554-555. While this defendant did not

use his hands to protect the area of his groin,5 as occurred in

Prophete, he did attempt to evade, in an animated manner, a

search of his person at the scene, although no drugs were then

discovered. This behavior, coupled with the fact that the

5 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.
13

defendant was selling drugs in a high crime area known for drug

dealing, coupled with Torres's experience and training regarding

dealers secreting drugs in their crotch area, are factual and

practical circumstances that could leave a reasonable and

prudent person with the belief that the defendant was still

concealing drugs on his person. See Brinegar v. United States,

supra at 175.

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, 387 Mass. at 175 ("Probable

cause does not require a showing that the police resolved all

their doubts"). Indeed, even when proving guilt beyond a

6 Contrary to the dissent's suggestion, see post at _[13]__
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, 472 Mass. 429, 431-
432 (2015).
14

reasonable doubt, the government is not charged with excluding

hypotheses of innocence. See Commonwealth v. Merola, 405 Mass.

529, 533-534 (1989) (Commonwealth "need not exclude every

reasonable hypothesis of innocence [to prove its case], provided

the record as a whole supports a conclusion of guilt beyond a

reasonable doubt" [quotation omitted]). Put another way, and

viewing all the facts and circumstances before the motion judge

together, the mere possibility that the defendant may have been

innocently motivated in avoiding the strip search does not

necessarily mean the police, who are equipped with specialized

training and experience, were not justified in believing he was

concealing drugs. See Commonwealth v. Freeman, 87 Mass. App.

Ct. 448, 454 (2015) ("While there could have been an innocent

explanation for the events observed by [the detective], he was

entitled to view them through the lens of his specialized

training and experience and conclude that more than mere

coincidence was involved"). In fact, even if the factors

justifying probable cause do not rise to the level of prima

facie evidence, see Commonwealth v. Santaliz, 413 Mass. at 241,

or even if they turn out to be incorrect, probable cause is not

negated. See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 701

(1984); Grasso & McEvoy, Suppression Matters Under Massachusetts

Law § 8-1.
15

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, 365

Mass. 472, 476 (1974). See also United States v. McGhee, 627

F.3d 454, 458-459 (1st Cir. 2010) (where officers told defendant

they were going to complete search of him, and he protested,

"saying that they could not 'stick a finger up [his] ass,'" this

"pattern of behavior was a reasonable signal that drugs were

likely concealed within"). On this matter, the dissent

endeavors to be the legal technicians the probable cause

formulation long ago warned against. See Brinegar v. United

States, supra at 175. In fact, the dissent's choice to isolate

the possibility that there may be reasons other than guilt to

explain the defendant's opposition to the strip search fails to

appreciate the flexible, lenient, and common sense approach of

the probable cause inquiry. See Texas v. Brown, 460 U.S. at

735.

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 _[13]_, 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 probable cause to support a strip search must
16

objectively exist "at time the search was made," Commonwealth v.

Amado, 474 Mass. 147, 154 (2016), not when the police officers

subjectively determined they would conduct one and so informed

the defendant. See 2 LaFave, Search & Seizure § 3.2(d), at 58

and n.104 (5th ed. 2012) (mistake to assert that probable cause

must exist "at the moment the decision is made," but rather

probable cause is properly determined, based on "totality of

facts" available to police, "at the time of the arrest or

search" [quotation omitted]). See also Commonwealth v.

Alvarado, 420 Mass. 542, 551 (1995) (unnecessary to determine

"at precisely what point the probable cause arose; it is

sufficient that it existed at the time that [the officer]

conducted his search of [defendant's] person"). Cf.

Commonwealth v. Murdough, 428 Mass. 760, 765 (1999) ("Whren v.

United States, 517 U.S. 806[, 812] (1996), teaches that, if the

objective circumstances justify the action taken, that is

enough").7

7 Contrary to the dissent's view, see post at _[12-13]__,
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 their 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
17

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

intended to purchase. In the end, practical considerations of
everyday life would leave 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, 429 Mass. at 408-409. See also
Commonwealth v. Battle, 365 Mass. at 476 (considering totality
of circumstances, consciousness of guilt can be important factor
when determining whether probable cause exists).

8 The dissent relies on Commonwealth v. Warren, 475 Mass.
530, 539 (2016), in support of its claim that if the facts,
circumstances, and police knowledge in this case were enough
evidence to justify a strip search, then "'our long-standing
jurisprudence' requiring particularized probable cause 'will be
seriously undermined.'" See post at _[11]__. However, the
dissent's reliance is misplaced. The defendant in Warren ran
away from the police, who merely had a hunch that he was
involved in a breaking and entering. Commonwealth v. Warren,
supra at 532. The court held that "evasive conduct in the
absence of any other information tending toward an
individualized suspicion that the defendant was involved in the
crime is insufficient to support reasonable suspicion." Id. at
538. Here, as cataloged above, the defendant's animated protest
against the search (behavior not in the nature of flight)
occurred in the police station, after the police watched him
sell cocaine to Foster, and after he was under arrest for that
crime. Not only was the police interaction with the defendant
not based on merely a hunch, but the fact that his arrest was
supported by probable cause is not even challenged. Also unlike
Warren, the defendant's behavior did not occur as a means to
avoid a "consensual" encounter with the police. Here, the
defendant's freedom to avoid the police had long since ended.
Contrast Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981)
(quick maneuver to avoid contact with police insufficient to
establish reasonable suspicion).
18

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 442 Mass. 1516 (2004)

("Grounds not stated which reasonably could have been known at

the time a motion is filed shall be deemed to have been

waived"). Although the policy was made an exhibit at the

hearing, the defendant did not make the "officer in charge"

claim until after the evidence was closed, and after the

Commonwealth could have cured any ambiguity. Despite this, the

judge relied on it in his decision, and we will assume the claim

is not waived. See Commonwealth v. Vargas, 475 Mass. 338, 343

n.6 (2016).

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
19

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, 89 Mass. App. Ct. 779, 781 (2016).

Thus, the procedure Torres followed prior to the strip search

conformed to the policy's requirement for an arresting officer

to receive prior approval from a commanding officer.

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. Indeed, not adhering to

such a policy is not determinative of the reasonableness of a

search; it is only one factor in the analysis. See Commonwealth

v. Morales, 462 Mass. 334, 343 n.9 (2012); Commonwealth v. Vick,

supra at 631.

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

9 The judge did not have the benefit of the transcript at
the time.
20

own facts. See Commonwealth v. Morales, supra at 342-343 and

cases cited. Here, it is important to note that the defendant

has not claimed that the manner or place in which the strip

search was conducted was unreasonable, and the judge did not so

find. Rather, the judge found that the strip search was

conducted by Torres and Betz (two male officers) in a private

cell near the booking area. Betz explained the process to the

defendant, who was directed to remove his clothing, and he

complied. When the red bandana concealing the seven bags of

cocaine was revealed, it was seized, whereupon the defendant's

clothes were returned to him.

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, supra at 632. In this posture, there is no occasion to

apply the exclusionary rule. See Commonwealth v. Wilkerson, 436

Mass. 137, 142 (2002) (because police officers "did nothing

wrong, there is no unlawful conduct for exclusion of the

evidence to deter").

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
21

order allowing the motion to suppress the evidence obtained as a

result of the strip search.

So ordered.
SULLIVAN, J. (dissenting, with whom Henry, J., joins).

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, 429 Mass.

403, 408-409 & n.5 (1999). For this reason, I respectfully

dissent.

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, 443 Mass. 548, 554 (2005). In so

holding, the court departed from Federal cases, and instead

required that a strip search be based on probable cause to

believe that drugs, weapons, or contraband were hidden in such a

way that a more intrusive search was justified. See id. at 553-

554, citing Bell v. Wolfish, 441 U.S. 520, 559 (1979).

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
2

believe that they would find contraband in 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, or in which the "last layer of clothing is moved . . . in

such a manner whereby an intimate area of the detainee is

viewed, exposed, or displayed." Commonwealth v. Morales, 462

Mass. 334, 342 (2012).

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, 472 Mass. 429, 431 (2015); Commonwealth v.

Depiero, 473 Mass 450, 452 n.3 (2016).1 We repeat them here

because fealty to the supported findings is central to the case.

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

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

1 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."
3

focused on a multifamily residential building located at 9-ll

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

2 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.
4

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 him. The

officers eventually conducted a search of the defendant and

found no 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
5

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, 472 Mass. at 431 (quotation omitted). Inferences

to be drawn from the testimony, the weight of the evidence, and

3 Torres testified that the defendant "was being animated,
passive, not willing to comply."
6

questions of credibility are for the motion judge, not an

appellate court. See id. at 431-432 & n.3; Commonwealth v.

Tremblay, 92 Mass. App. Ct. 295, 297 n.3 (2017).

"[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, 443 Mass.

at 553, citing Commonwealth v. Thomas, 429 Mass. at 408-409 &

n.5. For this reason, to conduct a strip search in the

Commonwealth, the "police 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 removing all clothing or

exposing intimate areas of the defendant's body. Commonwealth

v. Vick, 90 Mass. App. Ct. 622, 628 (2016), quoting from

Commonwealth v. Prophete, 443 Mass. at 556.4 See Commonwealth v.

Morales, 462 Mass. at 342.

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

In addition, "to pass constitutional muster, the strip
4

searches must have been reasonably conducted under the
circumstances." Commonwealth v. Amado, 474 Mass. 147, 157-158
(2016) (Gants, C.J., dissenting). The motion judge did not find
that the search was executed in an unreasonable manner, and no
argument of that sort is made on appeal.
7

would be necessary to 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, 421 Mass. 325, 327 (1995) (officer felt hard object

in genital area during patfrisk and retrieved object);

Commonwealth v. Amado, 474 Mass. 147, 158 (2016) (Gants, C.J.,

dissenting) (officer "felt a hard object behind the defendant's

testicles" that "was not 'part of the male anatomy'"). The

motion judge made no finding that the defendant was reaching

toward, reaching into, shielding, or attempting to shield his

groin area or buttocks, although the Commonwealth argued for

such a finding. Contrast Commonwealth v. Prophete, supra at

554-555 ("defendant, twice, used his hands to protect the area

around his groin during the officers' initial pat-down search");

Commonwealth v. Vick, supra at 624 (defendant attempted to reach

his cuffed hands toward his buttocks and thereafter, officer,

while performing search incident to arrest, felt hard object in

cleft of defendant's buttocks).

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
8

the patfrisk was conducted.5 However, when asked by the

prosecutor what distancing meant, Torres answered that the

defendant was 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, 472

Mass. at 432 ("The Commonwealth essentially asks us to do what

our case law proscribes: to rely on testimony that was neither

explicitly nor implicitly credited by the motion judge,

otherwise put, that we in essence make additional findings, and

5 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."

6 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."
9

reach a different result, based on our own view of the

evidence").

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, 429 Mass. at 408 ("It was . . .

reasonable for the police to believe that . . . because he

remained on the street with the woman, . . . he had more hidden

drugs"). Even Federal cases that apply a far more lenient

"particularized suspicion" standard, have found strip searches

unlawful absent some particularized showing that the drugs were

actually hidden on the defendant's body. See, e.g., United

States v. Barnes, 506 F.3d 58, 62 (1st Cir. 2007).7

In this case, a finding of probable cause must rest, then,

on an assessment of four remaining factors: (1) the defendant

7 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, 506 F.3d at 62.
10

took a fighting stance and was pulling away as if to avoid the

patfrisk; (2) the defendant had previously gone inside the

building to "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, 443 Mass. at 555, quoting from Draper

v. United States, 358 U.S. 307, 313 (1959). The first three

factors were sufficient to demonstrate probable cause to conduct

the patfrisk and search. However, none of the first three

factors, either alone or in combination, suffice to establish

probable cause to conduct a strip search of this defendant. The

Commonwealth's argument in this respect ignores the fact that

the judge credited Torres's testimony that the defendant

consistently returned to the building for thirty seconds at a

time, in order "to not have a drug stash on [his] person." Nor

did the cash found on the defendant indicate anything more than

a single sale of the amount of drugs found on Foster.8

8 In stating his ultimate conclusions, the motion judge also
specifically stated that "other . . . facts" supporting probable
cause were "not present here."
11

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, 474 Mass. at 149

("'Jocking' refers to a suspect's attempt to hide narcotics in

the buttocks area"). "The evidence . . . that [the defendant]

was a suspected drug dealer in possession of narcotics and that

some drug dealers conceal drugs between their buttocks -- did

not endow [the officer] with an individualized suspicion that

[the defendant] was 'cheeking' drugs." United States v. Barnes,

506 F.3d at 62 (invalidating body cavity search). If a

generalized suspicion that a drug dealer may be carrying drugs

in his groin or buttocks is enough to justify a strip search,

then a strip search would be justified in virtually all drug

arrests, and "our long-standing jurisprudence" requiring

particularized probable cause "will be seriously undermined."

Commonwealth v. Warren, 475 Mass. 530, 539 (2016).

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 defendant's person requiring the removal of

the defendant's clothing.
12

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

_[16]__ n.6. The evidence in the record on this point was to

the contrary. Unlike the defendant in Commonwealth v. Thomas,

429 Mass. at 408, this defendant "re-up[ped]" after each "walk."

The motion judge credited Torres's testimony explicitly and

found that the defendant was going in the building to re-up for

the express purpose of ensuring that there were no drugs on his

person in the event of arrest. Although the motion judge did

not explicitly say "and I so find" following his summary of

Torres's testimony, he was not required to do so once he stated

that he credited Torres's testimony. See Commonwealth v. Jones-

Pannell, 472 Mass. at 431-432. Indeed, once the motion judge

credited this testimony, and the reasonable inferences drawn

therefrom, there is no other way to interpret his ruling.

Torres did testify that some drug dealers jock drugs, but the

motion judge specifically credited the testimony that this

dealer did not, and, in fact, returned to the building to re-up.

Whether there was probable cause to believe that the defendant

was hiding drugs on his body "depends on specific facts found by

the judge that underlie such a determination." Commonwealth v.

Jones-Pannell, supra at 434. It was for the motion judge to
13

weigh the evidence and make findings. The motion judge's

findings binds us.

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 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

9 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, 429 Mass. at
409 n.5. While Commonwealth v. Warren, 475 Mass. at 538-539,
would suggest that it is up to the judge to determine the weight
of the evidence of consciousness of guilt, the judge here did
not make explicit findings on that issue. Commonwealth v.
Jones-Pannell, supra at 436-438, would require that we review
any implicit finding regarding consciousness of guilt in a
manner consistent with, not contrary to, the motion judge's
stated ruling. However, even if we were to accede to the
majority's conclusion that the motion judge was required, as a
matter of law, to make a factual finding that this evidence
showed consciousness of guilt, a proposition we do not accept,
the evidence could not be considered for the reasons stated
above.
14

cause] by inducing the conduct justifying the [search]."

Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981). See

Commonwealth v. Stoute, 422 Mass. 782, 789 (1996). This is not

a "legal technician's" sleight of hand. It is bedrock

constitutional law. Where, as here, the police lacked a lawful

basis to demand the strip search, the defendant's protest should

not be treated as consciousness of guilt in assessing the

probable cause calculus. See Thibeau, supra.

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.