Commonwealth v. Daquan Sparks.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-2

COMMONWEALTH

vs.

DAQUAN SPARKS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a Superior Court

judge suppressing cocaine that police found in the defendant's

underpants. The Commonwealth argues that the search was

permissible because, while executing a search warrant of the

defendant's person for cocaine, police saw a plastic baggie

protruding from his underpants, and then directed the defendant

to remove the baggie, which contained cocaine. We affirm.

Background. Boston police obtained a warrant to search the

person of the defendant for items including cocaine.1 The

warrant application was supported by an affidavit of Detective

Timothy Murray describing three controlled buys by a

1Police also obtained a search warrant, apparently based on
the same affidavit, to search the defendant's apartment. No
issue pertaining to that warrant is before us.
confidential informant (CI), as to each of which the CI told

police that the CI bought from the defendant a substance later

identified as cocaine. The affiant opined, based on his

training and experience, that "drug dealers often keep smaller

quantities of drugs on their person[s] ready for sale" and that

the defendant "is using his person as a means to conceal,

possess, and distribute crack cocaine." However, the affidavit

did not relate any information that the defendant secreted drugs

in his underpants. Police executed the search warrant and found

in the defendant's underpants a plastic baggie of cocaine.2

The defendant moved to suppress, arguing that police

improperly strip searched him. At a hearing on the motion,

Murray testified that to execute the search warrant, police

encountered the defendant outside his apartment building, showed

him the warrant, and escorted him to his apartment to conduct

the search privately. Murray testified that, in compliance with

the verbal order of Detective Timothy Stanton, the defendant

removed his own clothing until he was wearing only his

underpants. According to Murray, at that point the defendant's

private parts were not visible, but Murray could see "a bulge"

near the defendant's groin and part of a plastic baggie sticking

2 From a backpack the defendant was carrying, police seized
another baggie of cocaine. The judge declined to suppress that
cocaine, and no issue pertaining to its seizure is before us.

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out from the side of his underpants. At Stanton's request, the

defendant reached into his underpants, retrieved the baggie, and

turned it over to police; it contained cocaine. Questioned as

to whether police continued to search the defendant after they

seized the baggie, Murray replied, "[I]t's my common

practice . . . to remove the underwear, but I don't have a

memory if we did that or not."

The defendant testified at the motion hearing. In contrast

to the police version of events, he said that he was wearing

boxer shorts that were loose around his leg and groin area, and

when he was clad in only the boxer shorts the baggie was well

hidden between his buttocks close to his anus and not visible to

police. The defendant testified that Stanton spoke aggressively

and pulled down the defendant's jogger pants and boxer shorts.3

The judge allowed the motion to suppress the cocaine found

in the defendant's underpants. The judge found that "Stanton or

[the defendant]" took off the defendant's pants and "partially

took off his underwear/boxers to remove the narcotics." Because

Murray testified that he did not remember whether the

defendant's underpants were removed, the judge credited the

defendant's testimony that they were removed. The judge further

3 The defendant also testified that Stanton reached
barehanded between the defendant's buttocks and pulled out the
baggie. The judge did not credit that testimony, and so we do
not consider it.

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found that removal or partial removal of the underpants exposed

an intimate area. The judge concluded that "there was no

probable cause to lead the officers to believe that [the

defendant] was concealing drugs in his private area or inside

his buttocks," and ruled that the police impermissibly conducted

a strip search and a visual body cavity search.

The Commonwealth moved to reconsider, arguing that the

judge's findings did not make clear whether she credited

Murray's testimony that when the defendant was clad in only his

underpants the baggie was visible, or the defendant's testimony

that he was wearing loose-fitting boxer shorts and the baggie

was not visible. The judge denied the motion to reconsider,

stating in part, "My findings of fact in my decision [are] clear

that [the defendant's] underwear was partially removed during

the search, before the discovery of drugs." The Commonwealth

appeals.

Discussion. "In reviewing a decision on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error but conduct an independent review of h[er]

ultimate findings and conclusions of law" (quotations and

citations omitted). Commonwealth v. Agogo, 481 Mass. 633, 636

(2019). In addition to the facts found by the judge, we may

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consider facts gleaned from documentary evidence and from

uncontroverted testimony.4 See id. at 633-634.

A strip search does not mean simply "inspection of a naked

individual"; it also includes circumstances when the individual

"remains partially clothed," and the "last layer of clothing is

moved (and not necessarily removed)" so that "an intimate area"

is "viewed, exposed, or displayed" (citations omitted).

Commonwealth v. Vick, 90 Mass. App. Ct. 622, 628 (2016). See

Commonwealth v. Morales, 462 Mass. 334, 341-342 (2012) (strip

search occurred where officer moved waistband of arrestee's

shorts, exposing buttocks). A visual body cavity search is

defined as a "visual inspection of the anal and genital areas."

Commonwealth v. Thomas, 429 Mass. 403, 407 n.4 (1999). Both

strip searches and visual body cavity searches are "substantial

intrusion[s] on one's personal privacy rights protected under

the Fourth Amendment and art. 14 of the Massachusetts

Declaration of Rights." Commonwealth v. Prophete, 443 Mass.

548, 553 (2005). To conduct such an intrusive search, police

must have probable cause to believe that a defendant is

4 To the extent that the judge found that she credited the
testimony of Murray except as to certain testimony that
conflicted with that of the defendant, and further that she
credited the testimony of the defendant except as to certain
testimony that conflicted with that of Murray, those findings
were unnecessary, because an appellate court may credit
uncontroverted testimony. See Agogo, 481 Mass. at 633-634.

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concealing contraband "in a place where it would not be

discovered by a traditional search of the person -- that is, in

a place where the police reasonably could not expect to discover

it without exposing or inspecting an intimate area of the

defendant's body." Commonwealth v. Jeannis, 482 Mass. 355, 358-

359 (2019).

1. Plain view. The Commonwealth contends that before the

defendant's underpants were disturbed, police saw the baggie

protruding from them, and thus had probable cause to strip

search him. The Commonwealth argues that because Murray's

testimony about his lack of memory whether the underpants were

removed pertained to the period after police found the baggie,

the judge impermissibly considered it as discrediting Murray's

testimony about seeing the baggie protruding from the

underpants. We are not persuaded.

In her initial decision, the judge found that "Stanton or

[the defendant] partially took off [the defendant's]

underwear/boxers to remove the narcotics," and "an intimate area

was exposed." In her ruling on the motion to reconsider, the

judge clarified the sequence of events, finding that the

defendant's underpants were "partially removed during the

search, before the discovery of drugs." We are obligated to

defer to the judge's findings of fact based on the credibility

of the testimony of witnesses, see Commonwealth v. Gonzalez, 93

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Mass. App. Ct. 6, 11 (2018), and on inferences "derived

reasonably from the testimony" (citation omitted), Commonwealth

v. Gonzalez, 487 Mass. 661, 668 (2021). In weighing the

credibility of the defendant's testimony that the baggie was not

visible to police until Stanton pulled down the defendant's

underpants, the judge could consider Murray's lack of memory

about whether the defendant's underpants were removed at any

point, as well as the defendant's contrasting testimony.

Based on her finding that police did not see the baggie

until after the defendant's underpants were partially removed,

the judge concluded that police impermissibly conducted a strip

search and visual body cavity search. On the record before us,

we discern no error in this determination. See Agogo, 481 Mass.

at 638 (based on defendant's engaging in street-level drug

transactions and detective's opinion that individuals who do so

commonly conceal drugs in their crotch areas, police had "at

best, a reasonable suspicion" for strip search). Contrast

Jeannis, 482 Mass. at 355-358, 363 (based on arrestee's telling

police he had swallowed narcotics, leaning to one side while

sitting, clenching buttocks, and shielding his backside from

view, police had probable cause to conduct strip and visual body

cavity searches for contraband).

2. Search pursuant to warrant. In the alternative, the

Commonwealth argues that because the police had a warrant to

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search the defendant's person for cocaine, they could

permissibly search anywhere on his person "reasonably capable of

containing" cocaine. We are not persuaded.

As mentioned above, and as the judge noted, the search

warrant affidavit did not establish probable cause that the

defendant was secreting cocaine in his underpants. It did not

state that the CI told police any such information. To the

extent that it set forth the affiant's opinion, based on his

training and experience, that the defendant was concealing

cocaine on his person, there was no assertion that the cocaine

was in his underpants.5

Absent information in the affidavit establishing probable

cause that there was contraband in the defendant's underpants or

other facts from which such a conclusion could be reasonably

inferred, the search warrant for the defendant's person did not

permit police to conduct a strip search or visual body cavity

search, as they did here. See Agogo, 481 Mass. at 638. Cf.

Commonwealth v. Cintron, 103 Mass. App. Ct. 799, 802 (2024)

("Even where the warrant authorizes the search of any person

5 Even if the affiant had asserted his opinion that the
defendant was concealing cocaine in his underpants, such an
opinion would not suffice to show probable cause for a strip
search. See Agogo, 481 Mass. at 638. Cf. Commonwealth v.
White, 475 Mass. 583, 589-590 (2016) (officer's opinion that
coventurers communicate with cell phones not sufficient to
establish probable cause to search).

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present, the police must limit such searches to those within the

scope of the probable cause"). Under these circumstances, the

police exceeded the scope of the search warrant for the

defendant's person, so suppression was proper. See Jeannis, 482

Mass. at 361.

Order entered March 17, 2023,
allowing motion to
suppress, affirmed.

Order entered July 12, 2023,
denying motion for
reconsideration, affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.6),

Clerk

Entered: February 5, 2025.

6 The panelists are listed in order of seniority.

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