Complaint received and sworn to in the
Barnstable Division of the District Court Department on June 25, 2018.
A pretrial motion to suppress evidence was
heard by John M. Julian, J., and a conditional plea of guilty was accepted by
Joseph P. Harrington, J.
Patrick Levin, Committee for Public
Counsel Services, for the defendant.
Karen A. Palumbo, Assistant District
Attorney, for the Commonwealth.
After a police dog "alerted" to the odor of narcotics on the
defendant's person, the defendant was strip searched. The search revealed a package, suspected to
contain narcotics, located in the cleft between the defendant's buttocks. The defendant was charged with possession of
a class B controlled substance with intent to distribute. He filed a motion to suppress evidence of the
drugs, which was denied by a District Court judge. The defendant entered a guilty plea to simple
possession, conditioned on his right to appeal the denial of his motion to
suppress. See Commonwealth v. Gomez, 480
Mass. 240, 240-241 (2018); Mass. R. Crim. P. 12 (b) (6), as appearing in 482
Mass. 1501 (2019). On appeal, the
defendant contends that his motion to suppress was improperly denied because
(1) the police lacked reasonable suspicion to conduct an investigatory stop,
and (2) the police conducted a strip search without probable cause. We affirm.
Background. The undisputed facts are as follows. At approximately 1:45 A.M. on June 25, 2018,
a Barnstable police officer was on patrol in downtown Hyannis when he noticed a
group of five or six people gathered in the parking lot of a hotel. The police officer had previously
participated in narcotics investigations at this particular hotel and the
Barnstable police considered it to be a "problem property." The officer drove through the parking lot and
passed by the group, and then parked his cruiser across the street in order to
conduct surveillance. For the next hour,
and with the assistance of binoculars, the officer observed the group of
people. Although the group remained in
the parking lot, the officer also observed that members of the group would
occasionally enter two vehicles -- a Chevy Impala and a Honda Pilot -- either
to retrieve an object or to sit inside.
3 A.M., the officer watched as a woman got out of the passenger seat of
the Impala and walked to its trunk. The
defendant met her there, and the woman reached into the trunk and retrieved an
item that appeared to be a small handbag.
Both the defendant and woman appeared to be "looking around"
as if they were "conducting counter surveillance." The woman handed the item to the defendant,
who then got into the driver's seat of the Impala while the woman waited
outside the door. When the defendant
emerged from the car, the woman got into the driver's seat, the two trading
places. Believing that he had just
witnessed a drug transaction, the officer radioed dispatch to request
The group, however, began to disperse
before additional officers arrived. The
officer drove into the parking lot and parked his cruiser near the Impala,
illuminating the area with the cruiser's white lights. He stepped out of his cruiser, and as he
approached the Impala, he saw a "white powdery substance" on the
center console. The officer ordered the
members of the group to stop and commanded those standing outside the vehicles,
including the defendant, to put their hands on the hood of the Impala. Shortly thereafter, when additional officers
arrived at the scene, the defendant and the others were handcuffed, pat
frisked, and placed into separate police vehicles.
After the defendant was secured, a canine
officer was summoned. The canine officer
directed his dog to sniff the defendant for narcotics. After the dog alerted to the defendant's
backside, the defendant was transported to the police station, where officers
asked him to remove his shirt, pants, and undergarments. An item that "looked like drug packaging
material," and which the officers believed to be cocaine, protruded from
the area between the defendant's buttocks.
Discussion. "When reviewing the denial of a motion
to suppress, we accept the motion judge's findings of fact absent clear error,
but independently review the judge's ultimate findings and conclusions of
law." Commonwealth v. Tejada, 484
Mass. 1, 7, cert. denied, 141 S. Ct. 441 (2020). Accord Commonwealth v. Sanders, 90 Mass. App.
Ct. 660, 664-665 (2016).
Validity of the stop. a. Moment of seizure. The defendant argues that he was seized at
the outset of the encounter with police, when the officer parked his cruiser
near the Impala and illuminated the area with the cruiser's white lights. The Commonwealth argues that the seizure did
not occur until after the officer alighted from his cruiser and commanded the
defendant to place his hands on the hood of the Impala.
"A person is seized in the
constitutional sense when 'an officer has, through words or conduct,
objectively communicated that the officer would use his or her police power to
coerce that person to stay.'"
Commonwealth v. Chin-Clarke, 97 Mass. App. Ct. 604, 608 (2020), quoting
Commonwealth v. Matta, 483 Mass. 357, 362 (2019). "We interpret the officer's actions
based on the totality of the circumstances surrounding the
encounter." Commonwealth v. Evelyn,
485 Mass. 691, 697 (2020).
"'[Article] 14 [of the Massachusetts Declaration of Rights]
provides more substantive protection than does the Fourth Amendment [to the
United States Constitution] in defining the moment' of seizure"; thus,
determining the moment of seizure under "the more stringent standards of
art. 14" necessarily satisfies the standards of the Fourth Amendment. Commonwealth v. Browning, 99 Mass. App. Ct.
735, 740 (2021), quoting Commonwealth v. Lyles, 453 Mass. 811, 812 n.1 (2009).
The defendant points to the officer's
"swift" approach in a marked police cruiser and the officer's
decision to park behind the Impala and illuminate the area with the cruiser's
floodlights. Certainly, the manner in
which a police officer approaches a suspect may constitute a seizure requiring
reasonable suspicion, but the facts of this case do not persuade us that the
initial approach was "sufficiently confrontational" such that it
implicated art. 14. Commonwealth v.
Campbell, 69 Mass. App. Ct. 212, 215 (2007).
See Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) ("not every
encounter between a law enforcement official and a member of the public
constitutes an intrusion of constitutional dimensions").
First, the judge did not make a specific
finding that the officer used his cruiser to "block [the Impala] from
leaving" and, indeed, the officer testified to the contrary. An appellate
court may not "engage in . . . independent fact finding in order
to reach a conclusion of law that is contrary to that of a motion judge who has
seen and heard the witnesses, and made determinations regarding the weight and
credibility of their testimony."
Commonwealth v. Jones-Pannell, 472 Mass. 429, 438 (2015). Furthermore, and unlike in the cases cited by
the defendant, the defendant was no longer seated in the Impala when the
officer approached the group. Even
supposing that the officer had parked his cruiser in a way that prevented the
Impala from leaving, the defendant's movement would not have been
obstructed. See Matta, 483 Mass. at
Second, the officer's use of the cruiser's
white lights to illuminate the area did not constitute coercive police
power. See Commonwealth v. Briand, 71
Mass. App. Ct. 160, 162-163, S.C., Commonwealth v. Clark, 452 Mass. 1022
(2008). Contrast Commonwealth v.
Smigliano, 427 Mass. 490, 492 (1998).
Rather, we agree with the Commonwealth that the moment of seizure
occurred when the officer ordered the defendant to place his hands on the hood
of the Impala. At that point, "a
reasonable person would understand [the officer's instruction] as a command
that would be enforced by the police power." Commonwealth v. Barros, 435 Mass. 171, 176
Justification for the stop.
Having determined the moment of seizure, we next consider whether the
officer's actions were justified. See
Commonwealth v. Gomes, 453 Mass. 506, 510 (2009). "Whether a stop is a seizure, requiring
reasonable suspicion, or an arrest, requiring probable cause, depends upon the
circumstances of each case."
Commonwealth v. Manha, 479 Mass. 44, 48 (2018). "[P]robable cause exists where, at the
moment of arrest, the facts and circumstances within the knowledge of the
police are enough to warrant a prudent person in believing that the individual
arrested has committed or was committing an offense" (citation
omitted). Commonwealth v. Santaliz, 413
Mass. 238, 241 (1992).
Here, the officer knew, from personal
experience, that the hotel was a common location for suspected drug
transactions. The officer observed the
defendant and his companion conduct "counter surveillance" while the
two retrieved an item from the Impala's trunk. Each then took a turn sitting in the driver's
seat with that item. Based on this
unusual sequence of events, it was reasonable for the officer to believe that
he had just witnessed a drug transaction.
See Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 451 n.2 (2015).
This suspicion strengthened into probable
cause when, prior to the moment of seizure, the officer observed white powder
on the Impala's console adjacent to where the defendant had been sitting just
moments before. See, e.g., Commonwealth
v. Franco, 419 Mass. 635, 640 (1995). At
that time, the facts known to the officer established probable cause to believe
that the defendant had engaged in a street-level drug transaction. Cf. Commonwealth v. Washington, 449 Mass.
476, 486 (2007) ("the police need not arrest a suspect the moment they
obtain probable cause").
Strip search. The defendant
sought to suppress evidence that was seized after the police discovered,
pursuant to a strip search, a package concealed in the cleft between the
defendant's buttocks. The Commonwealth
relies wholly on the dog's alert to establish probable cause for the strip
search. On appeal, the defendant argues
that the Commonwealth failed to present evidence that an alert by the dog was
sufficiently reliable such that it could establish probable cause to conduct a
strip search. Absent such a showing, the defendant contends, the State and
Federal Constitutions require suppression of the fruits of the illegal search.
As noted supra, the police had probable
cause to arrest the defendant on drug charges and consequently were justified
in conducting a search of the defendant incident to that arrest. A strip search of an arrestee, however,
"constitute[s] a substantial intrusion on one's personal privacy rights,"
Commonwealth v. Prophete, 443 Mass. 548, 553 (2005), and is constitutionally
impermissible absent a "particularized indication of
concealment." Commonwealth v.
Agogo, 481 Mass. 633, 639 (2019). Thus,
art. 14 requires the police to possess probable cause to believe that the
defendant is concealing contraband that the police "could not reasonably
expect to discover without forcing the arrested person to discard all of his or
her clothing." Agogo, supra at 637,
quoting Prophete, supra at 556.
"Probable cause requires some affirmative indication that drugs or
other contraband are being concealed in areas such as the crotch or
groin." Agogo, supra at 638.
Whether a drug-detecting dog's alert to an
individual's private area establishes probable cause for a strip search
necessarily depends on the reliability of the alert. See Commonwealth v. Overmyer, 469 Mass. 16,
21 (2014) (discussing whether police officers can reliably predict quantity of
marijuana through sense of smell so as to provide probable cause to search for
criminal amount of marijuana), citing Commonwealth v. Antobenedetto, 366 Mass.
51, 56 n.2 (1974) ("The foundation of probable cause must be specific
data, the reliability of which could be judged by a magistrate").
Here, the Commonwealth presented the
testimony of Barnstable Police Officer Kevin Fullam to establish reliability of
the dog's alert. Officer Fullam had been
a police officer for eight years and a narcotics dog handler for the past three
years. Prior to being assigned the
position of narcotics dog handler, Officer Fullam attended over 480 hours of
training with his canine partner, a female "English line black lab,"
under the supervision of the individual who ran a program known as Alpha Canis. The program consisted of observation as well
as leash time (handler with dog) and involved training the dog to recognize
narcotics odors and to indicate on those odors.
The training progressed to the point where Officer Fullam and the dog
could go into a "blind room," where neither knew where drugs had been
hidden, and "certifying" that the dog could find the drugs and that
Officer Fullam could recognize the dog's indications. Officer Fullam and the dog thereafter kept
current on their skills by attending bimonthly trainings through the police
Officer Fullam explained that as a result
of the training, the dog was conditioned to respond to the odor of narcotics
through a food reward. The dog did not
eat unless she participated in a search for narcotics, so she trained every
day. On a daily basis, Officer Fullam
hid narcotics and then readied the dog for a search. Officer Fullam went through a sequence of
events, the same each time, to signal to the dog that a search was about to
begin. Although the search protocol was
consistent, the actual search itself was not; Officer Fullam hid the drugs in
different ways, mixing up scenarios so that the dog would be ready for
anything. When the dog detected the odor
of narcotics, she exhibited changes in her behavior, including the way she
carried her body, her breathing, and her level of salivation as she anticipated
a food reward. When she settled on the
source of the odor, she got her nose as close as she could to the source and
became still, her final indication.
These were all conditioned responses through her training. The dog
was never fed during a live search because it was not a controlled setting; the
point was to keep the training "pure." Officer Fullam testified that through the
daily exercises, the dog was "never wrong because she show[ed] a pattern
every, single day of doing the right thing."
With respect to the dog's search at the
scene, Officer Fullam testified that he went through the same sequence he went
through each time the dog prepared for a search. The dog was first tasked with searching one
of the other individuals who had been detained.
After the dog gave no indication, that individual was removed from the
immediate area. Subsequently, the
defendant was presented to the dog for a search; this time, the dog had a
marked change in her behavior –- her breathing changed and she began
salivating. She paced around but kept
focusing on the defendant's waistband and midsection area. Finally, the dog "sat on the ground and
she continued to nudge her nose to [the defendant's] buttocks." The defendant then was taken to the police
station for the strip search. Based on this evidence, the judge found the
reliability of the dog's alert to have been established.
Relying on Florida v. Harris, 568 U.S. 237
(2013), the defendant argues that the judge erred in finding the dog's alert to
be reliable, because there was no evidence of the dog's certification by a bona
fide organization, no evidence of what standards a dog and handler team are
required to attain in order to successfully complete training, and no training
records related to the dog introduced in evidence. He argues that the absence of records or
other information reflecting training standards or the dog's error rates
requires suppression. Yet, the Supreme
Court did not specify what particular evidence must be presented in order to
establish reliability of a dog alert; to the contrary, it specifically rejected
an "inflexible checklist" approach.
Id. at 245.
By way of example, the Court suggested
that reliability could be established by "evidence of a dog's satisfactory
performance in a certification or training program," Harris, 568 U.S. at
246, or "[i]f a bona fide organization has certified a dog after testing
his reliability in a controlled setting," id. at 246-247, or "even in
the absence of formal certification, if the dog has recently and successfully
completed a training program that evaluated h[er] proficiency in locating
drugs," id. at 247. Ultimately, the
Court held that "[i]f the State has produced proof from controlled
settings that a dog performs reliably in detecting drugs, and the defendant has
not contested that showing, then the court should find probable
cause." Id. at 248. The Court emphasized that the question, like
any inquiry into probable cause, "is whether all the facts surrounding a
dog's alert, viewed through the lens of common sense, would make a reasonably
prudent person think that a search would reveal contraband or evidence of a
Here, the Commonwealth presented evidence
that the dog (together with Officer Fullam, her handler) had received extensive
training from an independent program even prior to being put to work for the
police department as a drug-detecting team.
The training culminated in certifying, in a controlled setting, that the
team could successfully detect drugs.
The team had worked together for three years prior to the suppression
hearing, and during that time, had engaged in bimonthly continuing education
trainings through the police department.
Finally, due to the dog's food reward system, her accuracy in detecting
drugs in a controlled setting was established on a daily basis.
On cross-examination, the defendant did
not challenge the quality or standards of the training programs or the dog's
performance in them. See Harris, 568
U.S. at 247 (defendant may contest adequacy of training programs or examine how
dog and handler performed in those settings).
The defendant also did not inquire into the dog's past performance in the
field or raise any questions concerning the soundness of the particular search
in the case. See id. (defendant may ask
handler about past field performance or undermine particular search by pointing
As the Commonwealth "produced proof
from controlled settings that [the] dog perform[ed] reliably in detecting
drugs," and the defendant did not contest that showing by way of
cross-examination or independent proof, the judge was warranted in finding
probable cause. Harris, 568 U.S. at 248. As the Supreme Court noted, "a
well-trained dog's alert establishes a fair probability –- all that is required
for probable cause –- that either drugs or evidence of a drug crime
. . . will be found." Id.
at 246 n.2.
Conclusion. The order denying the defendant's motion to
suppress is affirmed.
 The defendant provided a video
recording (video) that he claims contradicts the testimony of the officer and
the judge's findings. However, this is
not a case where we should "independently review [the] documentary
evidence" and set aside our traditional standard of deferential review of
the findings which draw upon that evidence, because it does not appear that the
video exhibit provided a basis for any of the judge's findings of fact. Commonwealth v. Tremblay, 480 Mass. 645,
654-655 (2018). Nor do we assign the
video the significance that the defendant urges us to. The video begins after the point at which the
officer first parked his cruiser in the hotel's parking lot and after
additional officers had arrived at the scene.
It provides no information as to the position of the defendant or the
officer's cruiser at the outset of the encounter.
 "A strip search occurs when 'the
last layer of clothing of a detainee [is] removed,' or 'when a detainee remains
partially clothed, but . . . a last layer of clothing is moved (and
not necessarily removed) in such a manner whereby an intimate area of the
detainee is viewed, exposed, or displayed.'" Commonwealth v. Jeannis, 482 Mass. 355, 358
(2019), quoting Commonwealth v. Morales, 462 Mass. 334, 342 (2012).
 The Commonwealth argues that the
defendant waived the issue of the dog's reliability by failing to challenge it
specifically in his motion. See Mass. R.
Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004) ("pretrial
motion shall state the grounds on which it is based . . . which shall be set
forth with particularity," otherwise grounds "shall be deemed to have
been waived"). The defendant's
motion sought to suppress "a quantity of white powder, cash, and a cell
phone" seized in violation of the Fourth Amendment and art. 14. His supporting affidavit alleged that the
police stopped, interrogated, searched, and arrested him without showing him a
warrant. Although neither the motion nor
the affidavit specifically mentioned the dog or its reliability, "a
quantity of white powder" was seized directly from the defendant's person
as a result of a strip search, which was undertaken because of the dog
sniff. Thus, the Commonwealth was on
notice that it would have to establish the requisite justification for the
warrantless strip search. See
Commonwealth v. Mubdi, 456 Mass. 385, 389 (2010) ("the detail required in
the motion and accompanying affidavit under rule 13 (a) (2) must be sufficient
to . . . enable a judge to determine whether to conduct an
evidentiary hearing . . . [and] to give fair notice to the
prosecution of the particular search or seizure that the defendant is challenging"). Moreover, at the beginning of the suppression
hearing, the defendant made clear that he was looking to suppress items seized
from his person. Additionally, when the
defendant argued in closing that the Commonwealth had failed in its burden to
establish the dog's reliability, the Commonwealth did not contend that the
issue was waived. See id. at 390-391
(Commonwealth, having failed to object to lack of particularity in defendant's
suppression motion, waived issue on appeal).
 Officer Fullam explained that all dogs
are individuals and may have different ways of responding; he gave the example
of another dog he worked with that had different responses to the detection of
drug odors. A handler learns not only
from training but also from experience with a particular dog. As Officer Fullam put it, "[T]he dog is
a tool to expedite a searcher to find the narcotic
odor. . . . I can read
 The dog remained on scene and searched
another individual, giving no response; that person was then removed from the
immediate area. The dog then searched
the Impala. After walking around the
car, the dog showed a behavior change on the front driver's side door. Officer Fullam then opened the door to the
Impala and let the dog inside. After
exploring the interior of the car, the dog came back to the front driver's side
floorboard and indicated on a purse that was there by nuzzling her nose as
close as possible; police found drugs inside the purse.
 Relying on Commonwealth v. Ramos, 72
Mass. App. Ct. 773, 781 (2008), the defendant argues that a "well-trained
and experienced canine that received ongoing training from a competent
handler" does not suffice for probable cause under art. 14. Ramos concerned review of probable cause for
a search warrant where the supporting affidavit contained material omissions,
neglecting to mention information about false positives, and material
misstatements, exaggerating that dog's active duty achievements. See id. at 779-781. Therefore, while the dog in that case was
trained and experienced, its reliability was specifically impeached. The court noted that this factor
distinguished it from State and Federal cases in which alerts from drug dogs
had been found to provide probable cause to search. See id. at 779 n.5. Unlike the dog in Ramos, the reliability of
the dog in the case before us was not specifically impeached.