COMMONWEALTH VS. DONNE K. AGOGO
[Search & Seizure, Probable Cause, Reasonable Suspicion]
In this case the Commonwealth appealed from a District Court judge’s order allowing the motion of the defendant, Donne K. Agogo, 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, Massachusetts Police Department. 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 the strip search.
The Massachusetts Supreme Judicial Court affirmed the judgment of the District Court judge to allow the motion, concluding that the police lacked the necessary 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.
One 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. According to Torres, the area in which the officers were conducting surveillance was a “high crime” area.
From an unmarked police vehicle, the officers were focused on a nearby multifamily apartment building. They observed the defendant standing with a woman on the sidewalk of the building. The defendant repeatedly entered the apartment building, remained inside for approximately thirty seconds, and then returned to the sidewalk in front of the building. The defendant also initiated several conversations with pedestrians passing by on the sidewalk. He also disappeared for a time into a side street.
Based on the behavior, the officers suspected, from personal experience, that the defendant was conducting an illicit drug transaction.
After approximately twenty minutes of observation, the officers saw an individual, later identified as James Foster, approach the defendant. Based on observations made on the movement of Foster’s hands, Torres believed that Foster was counting currency for a drug transaction. Eventually, Foster and the defendant rounded the same side street the defendant disappeared down earlier and once again moved out of the view of the officers. Believing a drug transaction was about to take place, the officers followed them in their unmarked vehicle.
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. He and Betz exited their vehicle and approached the two men.
As he approached, Torres requested that Foster remove his hands from his sweatshirt pocket. Foster was initially hesitant to comply and stated that this was so 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 he believed to be cocaine. Foster was subsequently arrested.
Torres approached the defendant next, who was speaking with Betz. The defendant appeared to be upset and agitated and was not complying with Betz’s demands. He began pulling away from the officers. Fearing for his safety, Torres 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.
At the Chelsea police station, the officers began a routine booking procedure. At some point during the procedure, the arresting officers suspended the procedure because they believed the defendant could have drugs concealed on his person. Torres testified that in his experience, it was common for street-level drug distributors to conceal drugs in their crotch area to avoid detection. The officers determined that a strip search would be appropriate. The defendant verbally protested against the strip search but the arresting officers proceeded with the search anyway.
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 defendant was subsequently charged with distribution of a class B substance.
The defendant later moved to suppress the drugs seized on the ground that the drugs were obtained as a result of an unconstitutional strip search. The District Court judge allowed this motion. The Commonwealth appealed this decision.
When a higher court reviews a decision on a motion to suppress, it accepts the judge’s subsidiary finding of fact absent clear error but conducts an independent review of the judge’s ultimate findings and conclusions of law. A higher court’s duty is to make an independent determination of the correctness of the judge’s application of constitutional principles to the facts as found.
Searches incident to arrest can be unconstitutional in spite of a 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.A strip or visual body cavity search, by its very nature, are humiliating, demeaning, and terrifying experiences that, without question, constitute a substantial intrusion on a person’s personal privacy rights protected under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights.
The Courts have ruled that probable cause is necessary to conduct a strip search. Reasonable suspicion alone is not enough.
To determine if probable cause has been established, a court will need to deal with probabilities and the factual and practical considerations of everyday life on which reasonable and prudent individuals, and not legal technicians, act.
The officers determined that the defendant had been engaging in street-level drug distribution. Based on their training and experience, they believed that individuals engaged in street-level drug distribution could conceal drugs in the crotch area to avoid detection. Later at the police station, when police informed the defendant of his imminent strip search, he vocally protested.
Based on these facts the Court reasoned that the officers had at best reasonable suspicion and not probable cause. Probable cause in this circumstance required some affirmative indication that drugs or other contraband were being concealed in areas such as the crotch or groin such as a sight or feel of an unusual object or protrusion.TheCourt added that 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.
This necessary affirmative indication could also be found in behaviors suggesting that the defendant was hiding something somewhere on his person that a pat frisk reasonably could not discover, absent removal of the arrestee’s clothing. Such behaviors could include the arrestee notably attempting to block his or her groin, buttocks, breasts, or genital area from police view or search.
The Court concluded that there was no affirmative indication that the defendant was concealing contraband or weapons in his groin area. The officers only found a twenty-dollar bill on the defendant after arresting him. They likewise felt or saw nothing indicative of concealed contraband after searching the defendant at the scene, and the defendant did not attempt, at any point, to block officers from reaching or viewing his groin area. There was also 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.
An officer’s training and experience as to the general practices of street-level drug dealers does not constitute alone the necessary indication of concealment of contraband.
While the Court acknowledged that a strip search may, at times, be necessary for law enforcement to perform its function and to protect public safety, based on the facts found by the motion judge, the police lacked probable cause to conduct a strip search of the defendant.
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Source: Commonwealth vs. Donne K. Agogo, SJC-12592