Heard: January 10, 2018.
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.
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.
Teo, Assistant District Attorney, for the Commonwealth.
Michael A. Frates for the defendant.
Present: Trainor, Meade, Hanlon, Sullivan, & Henry, JJ.
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.
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:
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
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.
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
The defendant arrives.
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.
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.
The hand-to-hand sale.
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. 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 Street out of police view. Torres believed that a
drug transaction was about to take place.
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.
The defendant's arrest.
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 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.
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.
Booking and strip search.
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 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."
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.
on this evidence, in a thoughtful memorandum of law, the
motion judge determined that the stop, patfrisk, and seizure
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.