Heard: December 3, 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
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.
Teo, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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.
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
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 "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.
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.
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. 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.
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 ...