A defendant convicted on a drug possession charge challenged the legality of using drug-sniffing dogs for probable cause for a strip search. The Massachusetts Appeals Court affirmed the conviction of the defendant and the use of the drug-sniffing dog alert as probable cause to strip search in Commonwealth v. Elijah Judge.

Defendant was spotted by police with a group of people in a downtown Hyannis hotel parking lot. Police considered this spot a “problem property,” and knew it to be a location where police had previous narcotics investigations. Police watched the defendant for about an hour, and approximately 3 AM, the officer saw a woman and the defendant standing by the trunk of his car and looking around as if they were “conducting counter surveillance.”  The officer also saw the defendant and the woman took something out of the trunk and put into the front of the car.

Believing he witnessed a drug transaction, the police officer called for backup. While waiting for backup, the police officer went to the car and turned on his lights. When approaching the car, he saw a “white powdery substance” on the center console of the car.

When additional officers arrived, the defendant and the others were handcuffed, patted down, and placed in separate police cars. A drug-sniffing dog was brought to sniff the defendant, and the dog alerted to the defendant’s backside.

The defendant was brought to the police station, where he was asked to remove his clothing. The officers found an “item that looked like drug packaging material” between the defendant’s buttocks.

What is considered probable cause?

In Massachusetts, probable 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.” Essentially, a reasonable person would be able to look at the situation and believe that the defendant committed or was committing a crime.

In this case, the Court determined that the police officer was reasonable in believing he witnesses a drug transaction. The facts the Court cited in coming to this decision were that the hotel was a common location for suspected drug transactions, the “counter surveillance,” and most importantly, the officer observing the white powder when he approached the car. But, this probable cause alone is not enough to conduct a strip search on a suspect.

The specific requirements for police to conduct a strip search

To conduct a strip search on a suspect, the police must have 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 take off all of their clothing. And “requires some affirmative indication that drugs or other contraband are being concealed in areas such as the crotch or groin.”

Probable cause can also be established by a well-trained dog’s alert. At trial, the prosecution presented evidence that the drug-sniffing dog was the additional affirmative indication that was required for probable cause for a strip search. There was evidence presented around the dog’s intensive daily training, and that the dog had never been wrong in detecting drugs.

The Court determined this was enough to establish probable cause for a strip search when the dog altered to the defendant’s backside.

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