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Commonwealth v. Agogo

Supreme Judicial Court of Massachusetts, Suffolk

March 15, 2019

COMMONWEALTH
v.
DONNE K. AGOGO.

          Heard: December 3, 2018

         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 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.

          Amanda Teo, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LENK, J.

         The 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.

         1. Background.

         We 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 (2012), [1]

         a. Police surveillance.

         On an 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.

         The 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.

         The 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.

         After 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 ...


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