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Massachusetts Appeals Court Delivers Troubling Decision on Strip Searches

In a sharply-divided opinion published yesterday, the Massachusetts Appeals Court reversed a district court judge’s decision that Chelsea police officers had conducted an unlawful strip search on a suspected drug dealer.  The name of the case is Commonwealth v. Agogo

Chelsea Police Detective Torres was a member of the drug unit and was conducting surveillance with another officer in March of 2016.  The officers watched as the defendant arrived in the front of a multi-family home located on a main road.  The defendant repeatedly entered the building for short periods of time before returning to the sidewalk and trying to talk to pedestrians as they walked near him.  The cops saw the defendant and one of the pedestrians duck into a side street for 5-10 minutes before returning to the front of the building.  It is obviously common for drug dealers to sell drugs in areas where they won’t be seen by the police.  Shortly thereafter, a second pedestrian approached the defendant in front of the building and appeared to be counting money.  The two men walked toward the side street and the cops followed them.  Detective Torres saw the defendant appear to hand an item to the pedestrian, who appeared to place the item in his sweatshirt pocket.  The officers confronted the men and recovered cocaine from the pedestrian.  Believing the defendant had sold the cocaine to the pedestrian, the officers attempted to arrest the defendant, who appeared upset and adopted a “fighting stance.”  Despite the defendant’s efforts to pull away, the cops were able to patfrisk him (which did not result in the seizure of contraband) and arrest him.  Once at the station, the officers decided to strip search the defendant, since they had not recovered any drugs as a result of the patfrisk.  The defendant complained, but the strip search commenced in a private cell.  When the defendant disrobed, the police discovered a bandana in his crotch area that held seven small bags containing a powder believed to be cocaine.  He was charged with possession with intent to distribute the cocaine discovered in his crotch.

The defendant filed a motion to suppress the drugs found during the strip search, and a Chelsea District Court judge agreed the strip search was unconstitutional.  In Massachusetts, the police may strip search someone under arrest only if there is probable cause to believe contraband will be discovered during the strip search (and would not have been discovered during an ordinary search incident to arrest).  Three Appeals Court justices concluded such probable cause existed in this case because: the defendant was standing in an area known for drug dealing; the defendant was acting like a drug dealer; the cops witnessed the defendant participate in a drug deal; the defendant resisted a search of his person when he was being arrested; Detective Torres knew it was common for drug dealers to hide drugs in their crotches; and the defendant complained at the police station when the cops said they were going to strip search him.  Based on this evidence, according to the majority, there was probable cause to believe the defendant still had drugs on him.  Two dissenting justices pointed out that the cops did not feel any suspicious objects when they patfrisked the defendant, and the defendant did not make any movements toward his crotch.  There was no evidence whatsoever that the defendant was hiding contraband in a private area of his body.  The dissent correctly warned that if a generalized suspicion that a drug dealer might be hiding drugs in his groin or buttocks, then virtually every drug arrest will permit the police to conduct a strip search.

This is a really bad decision that expands the right of a police officer to strip search a suspect, and hopefully the Supreme Judicial Court will agree to review the case and reverse the Appeals Court.

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