In a recent case – Commonwealth v. Agogo – the Supreme Judicial Court affirmed the suppression of “narcotics seized from the defendant’s crotch area as the result of a strip search,” on the grounds 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.”
The basic facts were as follows. While conducting surveillance in a high crime area, two police officers (Torres and Betz) “observed the defendant standing … on the sidewalk outside [an apartment] building. While they watched, the defendant repeatedly entered the … building, remained inside for approximately thirty seconds, and then returned to the sidewalk in front of the building…. Based on his training and experience …, 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…. Torres believed that the defendant was engaging in this practice…. After … 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. Because the officers believed a drug transaction was about to take place, they, too, rounded the corner.” As they did so, Torres observed “the defendant [apparently] hand[ing] 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 … approached the two men.”
Torres ascertained that Foster was in possession of “a clear bag containing a white substance, which [appeared] to be cocaine…. Torres then approached the defendant, who had been speaking with Betz. The defendant appeared to be upset and animated”; he had taken a fighting position “and was pulling away from the officers.” As a safety precaution, Torres “determined [that] a patfrisk was necessary. The officers did not find any weapons or drugs, but they did seize a twenty dollar bill from the defendant,” the amount that, in Torres’s estimation, the “suspected cocaine found on Foster’s person” would have cost. The defendant was arrested and brought to the police station. On the basis of Torres’s encounters with street-level drug distributors who had concealed drugs in their crotch area, the officers decided to conduct a strip search. They ordered the defendant to remove all of his clothes. “When [he] was fully undressed, the … officers saw a red bandana and seized it from his groin area.” In the bandana were several small bags containing a substance that appeared to be cocaine. Upon the issuance of a complaint charging the defendant with drug offenses, he moved to suppress the drugs. The judge allowed the motion on the grounds that the officers did not have probable cause to conduct the strip search. The Commonwealth filed an interlocutory appeal.
In its decision affirming the allowance of the defendant’s motion to suppress, the Appeals Court noted that “‘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). [Commonwealth v. Prophete, 443 Mass. 548,] 553, 556 .” The Court concluded “that the officers [in this case] had, at best, a reasonable suspicion that the defendant could be concealing contraband in his crotch…. [H]owever, a reasonable suspicion is not enough…. Probable cause requires some affirmative indication that drugs or other contraband are being concealed” in a private area of the defendant’s body. Here, stated the Court, there was no such indication.
If you or a loved one is in a situation where the police obtained evidence against you as the result of a warrantless seizure and search, you will need an attorney to fight to suppress that evidence. Attorney Daniel Cappetta is an experienced and skilled attorney who has litigated numerous motions to suppress. Call him today for a consultation to determine whether you have a strong motion that should be litigated.