Indictment found and returned in the
Superior Court Department on August 28, 2014.
A pretrial motion to suppress evidence was
heard by Kenneth W. Salinger, J., and a motion for reconsideration was
considered by him.
An application for leave to prosecute an
interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was reported by her to
the Appeals Court.
Eduardo Masferrer for the defendant.
Kathleen Celio, Assistant District Attorney,
for the Commonwealth.
MILKEY, J.
In August, 2014, a grand jury indicted the defendant for trafficking in
200 grams or more of cocaine. G. L.
c. 94C, § 32E (b) (4). The
charge was based on evidence found during a warrantless search of the
defendant's motor vehicle. Following an
evidentiary hearing, a Superior Court judge denied the defendant's motion to
suppress that evidence. [1] On the
defendant's interlocutory appeal, we reverse.
Standard of review. "When reviewing a decision on a motion
to suppress, we accept the judge's findings of fact absent clear error, but
make an independent determination whether the judge correctly applied constitutional
principles to the facts as found."
Commonwealth v. Evans, 87 Mass. App. Ct. 687, 688 (2015). The judge made careful, detailed findings,
all of which are supported by the record and therefore are binding on us. Notably, the judge rejected some of the
police witnesses' claims about what they were able to observe from a distance,
and the specific factual claims that the judge did credit were qualified. The factual recitation that follows is drawn
from the judge's findings. [2]
Background. 1. The
tip provided to police. The Boston
police focused on the defendant's vehicle because of a tip they had received
from an undisclosed source.
Specifically, on or before June 9, 2014, the police received information
that a green Volvo station wagon containing a "large" amount of drugs
would be near a certain intersection in the Roxbury section of Boston. No other information regarding the tip was
provided at the evidentiary hearing. [3]
Thus, for example, there was no evidence that the tipster provided the
license plate number of the vehicle, what time it would arrive, or any
information whatsoever about the vehicle's occupants, if any. Similarly, there was no evidence about who
the tipster was, how he or she purportedly came into possession of the alleged
information, how that information was passed along to police, or whether the
police had any reason to trust it.
It was not happenstance that so little
evidence was presented about the tip, and none about the tipster. At the beginning of the evidentiary hearing,
the prosecutor made it clear that she did not intend to go into such issues
because she did not want to risk identifying the informant. [4] Thus, in an effort to head off any inquiry
into the tip, the prosecutor expressly disavowed trying to establish the tip's
reliability pursuant to applicable case law, and she made it clear that she
would be "objecting to any sort of [cross-examination] questions regarding
the . . . source of that information that the police had." Defense counsel responded that he was content
with this arrangement based on his understanding of how the informant's alleged
information would be treated.
Specifically, he stated as follows:
"It's a statement for context only that's not being used because it
doesn't satisfy [the standard set forth in Aguilar v. Texas, 378 U.S. 108
(1964), and Spinelli v. United States, 393 U.S. 410 (1969)]. For those purposes, I've agreed to not go
into the -- who the source is, how is it that it came about, what were the
exact details of the tip because we're [sic] not using it under
Aguilar-Spinelli to suppor[t] the stop or search." The judge responded by stating,
"Okay. Fair enough." The prosecutor made no effort to disabuse
defense counsel of his understanding.
2.
Police observations. Upon receiving
the tip, four police officers set up surveillance at the intersection mentioned
by the informant. At about 5:15 P.M. on
June 9, 2014, they saw a green Volvo station wagon turn at the intersection
without the driver using his turn signal.
The vehicle then parked approximately fifty feet away. Shortly thereafter, one of the officers
observed the vehicle's operator, subsequently identified as the defendant, lean
down toward his right side "as if he [were] reaching toward the floor of
the passenger side with both hands."
According to the judge's findings, the officer could not see the
defendant's hands or what the defendant might have been doing with them. Observing from a distance, the officers saw a
man approach the parked vehicle from an adjacent building and interact with the
defendant at the driver's side window for approximately half a minute. While the judge found that the police
observed the unidentified man who had approached the defendant's vehicle lean
toward it "in a manner consistent with that man placing his hands on the
Volvo door or reaching inside the Volvo," he also found that the police
did not observe the defendant and the unidentified man actually "reach
their hands toward each other, bring their hands together, or exchange any object." Furthermore, the judge found that the police
did not see anything in the pedestrian's hands as he was walking away from the
vehicle, nor did they see him put anything into his pocket, or move his arm in
a manner suggesting that he had just put anything there. Despite the absence of any observation of an
item being exchanged between the men, the judge found that their interaction
was "consistent with the two men exchanging something."
After the man walked away, the defendant
drove his vehicle to an adjacent street, where the police pulled his vehicle
over. Although the defendant appeared
nervous, he produced his driver's license and vehicle registration when
requested to do so. At this point, there
were at least four officers at the scene, and one of them ordered the defendant
out of the vehicle. As the defendant was
stepping out of the vehicle, the officer saw a roll of cash in a clear plastic
bag on the inside of the driver's door.
After further questioning of the defendant proved fruitless [5] and a
patfrisk of him revealed nothing, the police initiated a thorough search of the
vehicle, subsequently aided by a drug-sniffing dog. They eventually uncovered a metal box
underneath the passenger seat, inside of which was a large amount of cocaine
and additional cash.
The defendant moved to suppress all the
evidence the police collected pursuant to the stop and search of his vehicle,
including the cocaine, its packaging, the money (which totaled $11,050), the
defendant's cellular telephones, and a magnet that police believed was used to
access a "hide" inside the vehicle.
The judge ruled in the Commonwealth's favor. In doing so, he did not rely on the informant's
tip in any fashion. In fact, with regard
to that tip, the judge found that "[t]he Commonwealth did not present any
evidence to demonstrate the basis for the informant's knowledge, that the
police had any reason to believe that the informant was truthful, or that the
police had corroborated the source's information that the [defendant's vehicle]
would contain illegal drugs."
Instead, the judge concluded that the police had reasonable suspicion to
stop the vehicle and to order the defendant out of it based on the brief
interaction that the police had observed between the defendant and the
unidentified man who had approached his vehicle. Then, according to the judge, once the police
observed the wad of bills in the driver's door while the exit order was being
executed, they gained probable cause that justified their subsequent search of
the vehicle.
Discussion. 1.
Introduction. The dispute before
us is relatively narrow. It is
uncontested that the police found the cocaine and other incriminating evidence
during an investigatory search of the defendant's vehicle. It follows that this search was valid only if
the Commonwealth at that point had probable cause to conduct the search. Commonwealth v. Eggleston, 453 Mass. 554, 557
(2009). [6] Moreover, the Commonwealth
acknowledges that its claim that it had probable cause depends on the police
having observed the roll of bills in the door of the vehicle while they were
executing the exit order. Therefore, if
the exit order was not valid, the Commonwealth's claim that it had probable
cause to search the vehicle falls short.
While the police could have stopped the
vehicle for the civil traffic violation they observed, [7] this would not have
justified the exit order that led to the discovery of the roll of bills. [8] Rather, in the particular circumstances of
this case, the validity of the exit order -- and hence the Commonwealth's claim
that it obtained probable cause once it found the wad of bills -- depends on the police having gained
reasonable suspicion that the defendant was engaged in illegal drug
activity. See Commonwealth v. Bostock,
450 Mass. 616, 621-622 (2008) (exit order justified when police have reasonable
suspicion that operator engaged in criminal activity). The key question, then, is whether, by the
time the police ordered the defendant out of his vehicle, they had "reasonable
suspicion, based on specific, articulable facts and reasonable inferences
therefrom, that an occupant of the . . . motor vehicle had committed,
was committing, or was about to commit a crime." Commonwealth v. Anderson, 461 Mass. 616, 621,
cert. denied, 568 U.S. 946 (2012), quoting Commonwealth v. Alvarado, 423 Mass.
266, 268 (1996). We turn to that
question and begin by examining the grounds on which the judge relied.
2.
Reasonable suspicion. a. Police observations. The motion judge found, without referring to
the tip, that the police had reasonable suspicion to believe the defendant was
selling illegal drugs based on the defendant's brief interaction with the
unidentified pedestrian (after the defendant stopped his vehicle on a public
street and reached toward the floor of the vehicle). We disagree.
As noted, the police did not observe any
item being exchanged between the defendant and the person who approached and
leaned toward his vehicle. As the
Commonwealth highlights, testimony of an observed hand-to-hand exchange in some
circumstances can establish the requisite degree of suspicion that an illegal
narcotics sale has occurred even where the police do not "actually see an
object exchanged." Commonwealth v.
Kennedy, 426 Mass. 703, 710 (1998). [9]
However, in those narcotics sale cases in which reasonable suspicion has
been found in the absence of police observing an item being exchanged, there
were significantly more suspicious circumstances than those encountered
here. For example, in Commonwealth v.
Stewart, 469 Mass. 257, 261 (2014), the court found reasonable suspicion for
police to stop the defendant where -- knowing that he previously had been
arrested for drug dealing -- they observed that "three persons followed
[him] down a narrow street often used by drug users, with [a] woman counting
currency as she walked, and then all four huddled briefly together in a
doorway, before they dispersed."
See Commonwealth v. Gomes, 453 Mass. 506, 511-512 (2009); Commonwealth
v. Moses, 408 Mass. 136, 140 (1990). [10]
Here, as a police witness acknowledged,
neither the defendant nor the putative buyer was known to the police. [11] Furthermore, the judge found that the police
had no reason, based on past experience, to expect a drug transaction to occur
in this particular area, which was made up of "relatively quiet
residential streets." [12] All the
police observed was an unknown driver stop his vehicle in a residential
neighborhood, lean down toward the passenger-side floor, and subsequently have
a brief interaction with an unknown pedestrian during which the pedestrian
leaned toward the vehicle (as if to place his hands on or in it). As far as it goes, the judge's finding that
what the police saw was "consistent with" a hand-to-hand exchange of
illegal drugs is unassailable. However,
the defendant's observed actions would also be "consistent with" a
broad range of other interactions. These
would include, as mere examples, the driver's saying a quick hello to an
acquaintance he passed on the street, the driver's asking for directions after
looking for a map, or the driver's stopping to drop off tickets to a sporting
event or another item to a friend he had arranged to meet. Even if there were sufficient evidence to
establish reasonable suspicion that an exchange had taken place, there was not
enough to establish that the exchange was of illegal drugs. Put otherwise, if the looming presence of the
unsubstantiated tip is truly disregarded, then the specific actions that the
police observed -- even when seen through the eyes of experienced officers --
created at most a "hunch" that a drug transaction had just
occurred. As the Supreme Judicial Court
has long held, a "mere 'hunch' is not enough" to establish reasonable
suspicion. Commonwealth v. Silva, 366
Mass. 402, 406 (1974). [13]
The Commonwealth seeks to justify the stop
by having us add to the mix the undisclosed informant's tip about a green Volvo
station wagon containing drugs. [14]
Although the judge himself placed no reliance on the tip, it is plain
from one of the arresting officer's testimony that, unsurprisingly, such
information played a major part in leading him "to believe that a possible
drug transaction [had] occurred."
Because we can affirm the denial of the motion to suppress on any ground
fairly supported by the record, see Commonwealth v. Va Meng Joe, 425 Mass. 99,
102 (1997), we must evaluate whether considering the tip here makes a
difference.
b.
The import of the tip. The
Supreme Judicial Court has made it clear that the Commonwealth cannot rely on
an informant's tip unless the reliability of that tip has been demonstrated
pursuant to the two-pronged Aguilar-Spinelli test (in which courts are to
assess the extent to which the informant's veracity and basis of knowledge have
been shown). See Commonwealth v. Upton,
394 Mass. 363, 375 (1985), citing Aguilar v. Texas, 378 U.S. 108 (1964), and
Spinelli v. United States, 393 U.S. 410 (1969).
In continuing to adhere to the Aguilar-Spinelli test in the context of
challenges brought pursuant to art. 14 of the Massachusetts Declaration of
Rights, the court on multiple occasions has rejected calls that it adopt the
less demanding "totality of the circumstances" test employed by the
United States Supreme Court in challenges brought pursuant to the Fourth
Amendment to the United States Constitution.
See Upton, 394 Mass. at 371-375 (rejecting the rule adopted in Illinois
v. Gates, 462 U.S. 213 [1983]). See also
Commonwealth v. Lyons, 409 Mass. 16, 18 (1990) (declining to follow the rule stated
in Alabama v. White, 496 U.S. 325, 328 [1990]); Commonwealth v. Mubdi, 456
Mass. 385, 395-396 (2010).
In its brief, the Commonwealth appears to
maintain that where, as here, the tip is not the sole basis for the police
action, the Aguilar-Spinelli test does not apply. Rather, the Commonwealth seems to suggest,
the information received from the informant can be considered as one factor
among others that collectively tip the scales.
In this manner, the Commonwealth effectively advocates for a "totality
of the circumstances" test that the Supreme Judicial Court has time and
again rejected. Under existing case law,
if the requisite level of suspicion depends on an informant's tip, that tip
must satisfy Aguilar-Spinelli.
Here, nothing in the record establishes
the informant's basis of knowledge or his or her veracity. Indeed, although the Commonwealth refers to
the information the undisclosed informant provided as an "anonymous
tip," this actually overstates its force.
An anonymous tip -- such as one made by an unidentified caller to 911 --
typically includes some information that is helpful to assessing the caller's
basis of knowledge or reliability. See
Commonwealth v. Depiero, 473 Mass. 450, 452-453 (2016) (anonymous 911 caller
reported seeing drunk driving in Cambridge, with the vehicle "swerving all
over the road"). The Commonwealth
not only failed to make any evidentiary showing with regard to these issues,
but also expressly foreswore attempting to do so when the evidentiary hearing
began. [15]
That said, the cases have long recognized
that while the Commonwealth will need to demonstrate a tip's reliability based
on "the informant's reliability and his or her basis of knowledge[,
i]ndependent police corroboration may make up for deficiencies in one or both
of these factors." Commonwealth v.
Lyons, supra at 19. Thus, while the
Aguilar-Spinelli test must be satisfied, there is more than one way of doing
so. Moreover, in the context of
reasonable suspicion, the demonstrated reliability of an informant's tip need
not be as robust as what is needed to demonstrate probable cause. Lyons, supra.
The question then is whether the observations the police made at the
scene provided sufficient corroboration of the tip to establish its reliability
for purposes of assessing reasonable suspicion.
At most, the police observations
corroborated the unexceptional fact that at some undisclosed point in time, a
green Volvo station wagon would be in the identified neighborhood. [16] As the Supreme Judicial Court recently
observed, "Corroboration of purely innocent details that are observable by
any bystander, such as the description of a vehicle and its location, provides
only limited enhancement to the reasonable suspicion determination." Commonwealth v. Pinto, 476 Mass. 361, 365
(2017). To the extent the Commonwealth
argues that the brief curbside interaction between the defendant and the
unidentified pedestrian corroborated the tip that there were drugs inside of a
green Volvo station wagon, we are unpersuaded. [17] See Commonwealth v. Mubdi, 456 Mass. at 387,
398-399 (fact that a person was observed
interacting with defendant and other occupant of defendant's vehicle and
started to walk away from the vehicle after seeing approaching police officers
held insufficient to corroborate informant's tip about a purportedly illegal
sale of a firearm). Compare Commonwealth
v. Dasilva, 66 Mass. App. Ct. 556, 560 (2006) (anonymous tip that defendant
illegally possessed a firearm was corroborated by police observations that,
"[a]fter looking directly at the marked police cruiser, the defendant
moved his right hand toward his waistband, fled up the stairs of the building
where he was standing, and continued to flee even after [a police officer]
ordered him to stop"). Without a
sufficient showing that the informant's tip should be considered reliable, it
cannot be relied upon to demonstrate reasonable suspicion. [18]
Conclusion. The judge was correct not to rely on the
informant's tip. However, without such
reliance, his ruling that the police had reasonable suspicion to order the
defendant out of his vehicle cannot stand.
In turn, without a valid exit order, the police cannot rely on their
discovery of the wad of money in the driver's door, and the police therefore lacked
probable cause to search his vehicle.
"Because the evidence in issue was traceable to . . . the illegal
order[] that the defendant[] leave the car, it must in these circumstances be
suppressed as the 'fruit of the poisonous tree.'" Commonwealth v. Loughlin, 385 Mass. 60, 63
(1982). The order denying the
defendant's motion to suppress is reversed.
So ordered.
HANLON, J. (dissenting). I agree with much of the majority's
thoughtful decision. Respectfully,
however, I dissent on the crucial issue -- whether, at the time that the
officers told the defendant to get out of the vehicle, they had a reasonable
suspicion to believe that he had engaged in an illegal drug transaction. The stop itself clearly was justified by the
earlier traffic violation, a conclusion that the defendant does not really
dispute. The motion judge explicitly
credited the officers' testimony "that [the defendant] made [a] turn [from
Copeland Street through the intersection at Warren Street and onto Waverly
Street] without using any turn signal." [1]
Background. As the majority notes, the judge's findings
were careful and thorough. First, he
found that, at the time of the encounter, the two lead officers, Fabiano and
Gero, "were both experienced narcotics investigators." They were assisted by officers from the
District B-2 anti-crime unit. "That
afternoon they were looking to intercept and stop a green Volvo station wagon
because an unidentified informant had told Fabiano that he could find such a
vehicle in the area of Waverly and Copeland Streets in Boston and that the
vehicle would contain a large amount of illegal narcotics."
When the officers stopped the defendant
driving a green Volvo station wagon, they knew:
first, the defendant had stopped his vehicle on Waverly Street, in front
of the first building on the left, "a residential building." Second, "a second man immediately left
the nearest building and walked to the driver's door of [the defendant's] vehicle[. A]s the second man approached[, the
defendant] leaned down to his right as if he were reaching toward the floor by
the front passenger seat," using both hands. Third, the defendant then sat back up and
interacted for no more than thirty seconds with the second man, who stood
immediately outside the driver's door of the defendant's vehicle. During this interaction, the second man
leaned toward the vehicle as if he were placing his hands on the vehicle's door
or reaching into the vehicle; he "was moving one or both of his arms while
he was standing next to the Volvo and facing [the defendant], in a manner
consistent with the two men exchanging something." Fourth, after approximately thirty seconds,
the defendant drove away and the second man walked back into the building he
had emerged from a moment earlier. The
motion judge found that, "[b]ased on their training and experience with
hand-to-hand drug transactions, [the officers] both suspected that the
pedestrian had purchased some kind of illegal drugs from [the
defendant]."
At the time that the officers ordered the
defendant out of the vehicle, they had some additional information. They had asked for his license and
registration, noting that the defendant "seemed to be nervous
. . . [and] that [he] seemed to be breathing heavily, was looking in
his rear view and side view mirrors at the various police officers and vehicles
that had pulled up behind him, and was not making eye contact" with either
of the officers who were speaking with him.
Finally, while the judge declined to use the talismanic words "high
crime area" and, in fact, specifically found that, as of this date,
"the Boston police had no reason based on past experience to expect to see
a drug transaction take place on Waverly Street or Copeland Street, which are
both relatively quiet residential streets," he also "credit[ed]
Of[ficer] Gero's testimony that over the years he ha[d] made numerous arrests
for possession or distribution of illegal narcotics in this general
neighborhood." [2]
Discussion. 1.
Exit order. The law is clear that
a police officer may order a driver to get out of a vehicle when he has a
reasonable suspicion that the driver has committed a crime. See Commonwealth v. Bostock, 450 Mass. 616,
621-622 (2008). Therefore, as noted, the
issue is whether the officer had reasonable suspicion when he ordered the
defendant out of the vehicle.
"[R]easonable suspicion is a lower
standard than probable cause."
Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998). See Commonwealth
v. Hill, 49 Mass. App. Ct. 58, 63 (2000):
"The
specific facts on which the police based their stop of the defendant have been
described as follows: '(1) a vehicle
pulled up and an interaction occurred between someone in the vehicle and
someone [in the parking lot], who apparently retrieved something before
concluding the interaction with the vehicle's occupant; (2) [the interaction
occurred] in a place known by the police officer[s] as a place of high
incidence of drug traffic; and (3) [the interaction was] witnessed by an
experienced officer, who had made numerous drug arrests [although not
necessarily in the neighborhood] and considered the event as [suggesting] a
drug sale.' Commonwealth v. Kennedy, 426
Mass. [703], 708 [1998]. Moreover, 'the
quickness of the interaction between [the other party and the defendant]
reasonably could be interpreted by the officer as suspicious conduct, similar
to the suspicious conduct of the "furtive" transaction observed in
[Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992)].' Commonwealth v. Kennedy, supra at
708-709. We are mindful that in Kennedy
the seller had been arrested previously for narcotics sales and was the subject
of complaints from people in the neighborhood, id. at 704; that in Santaliz,
there was an obvious exchange of an object and money, supra at 240; and that in
both Kennedy and Santaliz the officers had had considerable experience with
drug transactions in the same location.
However, in each of those cases the facts were deemed sufficient to
establish probable cause for arrest. If
the facts set out in Kennedy and Santaliz were sufficient to support a finding
of probable cause, the facts established here were sufficient to establish
reasonable suspicion" (emphasis supplied).
See also
Commonwealth v. Santiago, 470 Mass. 574, 579 (2015) ("Although [the
officer] did not see any item actually exchanged, the defendant's extended arm
and [the recipient's] corresponding gesture in relation to his shirt pocket
provided some basis for [the officer's] belief that a drug transaction between
the two men had just taken place").
I also suggest that art. 14 of the
Massachusetts Declaration of Rights does not require us to ignore completely
the fact that the officers made their observations after receiving a tip that a
green Volvo station wagon containing a "large" amount of drugs would
be in the area of Waverly and Copeland Streets.
Certainly, the tip by itself did not satisfy either prong required by
the teaching of Aguilar-Spinelli. [3]
However, viewing the tip as one of a number of factors contributing to
reasonable suspicion does not, as the majority fears, impermissibly weaken the
standard to a mere "totality of the circumstances." See Commonwealth v. Depiero, 473 Mass. 450,
452 (2016) ("[T]he information gleaned from the anonymous call in the present
case, corroborated by other information, was sufficiently reliable to warrant a
finding that the officer had reasonable suspicion to stop the defendant's
vehicle"). In this case, the tip
was corroborated by the fact that someone driving a green Volvo station wagon
engaged in what the officers reasonably suspected was a drug transaction some
fifty feet up Waverly Street from the intersection of Waverly, Copeland, and
Warren Streets.
The majority does not cite to any case
holding that such a tip must be disregarded completely, and there are a number
of other cases that hold otherwise. See,
e.g., Commonwealth v. Anderson, 461 Mass. 616, 623, cert. denied, 568 U.S. 946
(2012) ("Where the caller is anonymous, there are at least two ways to
establish the caller's reliability. The
first is through independent corroboration by police observation or
investigation of the details of the information provided by the caller. See . . . Florida v. J.L., 529 U.S.
266, 270 [2000], quoting Alabama v. White, 496 U.S. 325, 327 [1990] [anonymous
tip, suitably corroborated, may exhibit 'sufficient indicia of reliability to
provide reasonable suspicion to make the investigatory stop']");
Commonwealth v. Wilson, 441 Mass. 390, 395-396 (2004) ("Independent police
corroboration of the details in the telephone call by [the t]rooper
. . . when he arrived at the location identified by the caller and
saw a group of nine men establishes that the caller's information was also
reliable. Commonwealth v. Willis, 415
Mass. 814, 819 [1993]").
Finally, the fact that the tip predicted a
future event (the Volvo would arrive at the particular intersection containing
drugs) also buttresses its credibility.
See Commonwealth v. Va Meng Joe, 425 Mass. 99, 104 (1997)
("Corroboration of future behavior, which goes beyond 'readily available
information,' has a special significance when determining the reliability of an
informant").
"For more than seventy-five years,
we have avoided an overly formulaic approach to the determination of whether
there is [reasonable suspicion to detain] a person who is suspected of
participation in a street-level drug transaction." Commonwealth v. Sanders, 90 Mass. App. Ct.
660, 660 (2016). "'A police officer
may make an investigatory stop "where suspicious conduct gives the officer
reasonable ground to suspect that a person is committing, has committed, or is
about to commit a crime." . . . The action of the officer "must be
based on specific and articulable facts and reasonable inferences therefrom, in
light of the officer's experience."'
Commonwealth v. Gomes, 453 Mass. 506, 510-511 (2009), quoting
Commonwealth v. Wilson, 441 Mass. [at] 394." Commonwealth v. Stewart, 469 Mass. 257, 261
(2014).
While certainly, as the majority observes,
there are many possible explanations for each of the facts individually (yes,
the defendant could have been dropping off Celtics tickets, and yes, the
defendant likely was nervous because there were several police officers),
police officers do "not have to exclude all the possible innocent
explanations for the facts in order to form a reasonable suspicion." Commonwealth v. Isaiah I., 450 Mass. 818, 823
(2008). "Although nervous or furtive
movements do not supply reasonable suspicion when considered in isolation, they
are properly considered together with other details to find reasonable
suspicion." Commonwealth v.
DePeiza, 449 Mass. 367, 372 (2007).
"We view the 'facts and inferences underlying the officer's
suspicion . . . as a whole when assessing the reasonableness of his acts.' Commonwealth v. Thibeau, 384 Mass. 762, 764
(1981). 'Seemingly innocent activities
taken together can give rise to reasonable suspicion justifying a threshold inquiry.' Commonwealth v. Watson, 430 Mass. 725, 729
(2000)." Commonwealth v. Gomes, 453
Mass. at 511. "We do not examine
each fact known to [police] at the time of the stop in isolation; instead we
view the 'facts and inferences underlying the officer's suspicion
. . . as a whole when assessing the reasonableness of his
acts.'" Commonwealth v. Isaiah I.,
supra, quoting Commonwealth v. Thibeau, supra.
I am satisfied that, in the case before us, all the facts together
support the judge's conclusion that the exit order was properly grounded in
reasonable suspicion.
2.
Search. After the defendant got
out of the Volvo, one of the police officers observed in plain view a roll of
money packaged in a clear plastic bag and tucked into the compartment on the
inside of the driver's door. This
observation -- a large sum of cash -- together with the officers' reasonable
suspicion that the defendant had just engaged in a drug transaction gave them
probable cause to believe that the vehicle would contain evidence of the drug
transaction, as well as evidence that the defendant was in possession of
illegal drugs, intending to distribute them.
Compare Commonwealth v. Stephens, 451 Mass. 370, 385 (2008). The police could then search the Volvo
without a warrant under the motor vehicle exception. See Commonwealth v. Johnson, 461 Mass. 44,
49-50 (2011).
I believe that the judge's order denying
the motion to suppress should be affirmed.
footnotes
[1] The defendant filed a motion to
reconsider that ruling, which also was denied.
[2] In reciting an interchange between the
judge and counsel at the motion hearing, we of necessity rely on the transcript
of that hearing.
[3] The record does not contain any
recording of the tip, or other memorialization of what words the informant used
to convey his or her thoughts. Instead,
one of the testifying officers simply stated that the police had "received
information from a source that a green Volvo station wagon that had a large
amount of narcotics was in [the] area of [three streets in Roxbury]."
[4] At one point, the prosecutor -- when
pressed by the judge on whether she would be "attempting in any way to
rely upon information from th[e] confidential source" -- hedged slightly
by stating her view that "stuff can be corroborated."
[5] The police questioned the defendant in
English. Although the defendant supplied
his license and registration, he told the police that he did not speak English
and therefore did not understand their further inquiries.
[6] Because of the so-called
"automobile exception," a warrant was not required so long as the
police had probable cause. See
Commonwealth v. Eggleston, 453 Mass. at 557, quoting Commonwealth v. Cast, 407
Mass. 891, 901 (1990) ("[A] warrant is not required to search an
automobile 'when police have probable cause to believe that a motor vehicle on
a public way contains contraband or evidence of a crime, and exigent
circumstances make obtaining a warrant impracticable'").
[7] The fact that the traffic violation
was not the actual reason the police stopped the defendant's vehicle would not
matter. See Commonwealth v. Buckley, 478
Mass. 861, 872-873 (2018). For purposes
of our review, we have assumed that the length of time between the observed
traffic violation and the stop was short enough that the initial stop could be
justified on this basis.
[8] The defendant cooperated with the
police after the stop, and the Commonwealth makes no claim that the exit order
independently was justified for safety reasons.
See Commonwealth v. Gonsalves, 429 Mass. 658, 665 n.5, 666-668
(1999).
[9] Kennedy involved probable cause. Ipso facto, there is no per se rule requiring
that police see an object exchanged in cases where, as here, the less rigorous
standard of reasonable suspicion applies.
[10] In Commonwealth v. Gomes, the court
held that the police officer had reasonable suspicion to stop the defendant in
a high crime area at around 4 A.M., where the defendant was known to previously
have been arrested on drug charges and was observed "displaying items in
his hand[, which the officers could not see,] and then appearing to swallow
those items as the [police] approached."
453 Mass. at 511. In Commonwealth
v. Moses, the court held that the police officer "had reason to suspect
that a drug transaction was taking place" where he saw four individuals
who were "standing near an automobile parked next to the sidewalk with its
motor running [and] appeared to be interacting in some way with three
. . . men who sat in the automobile[, and then, o]n making eye
contact with [the officer,] all four [men on the sidewalk] quickly dispersed in
two different directions[, and] [o]ne of the occupants of the automobile, on
making eye contact with [the officer], immediately ducked under the dashboard,
completely out of [the officer's]'s sight." 408 Mass. at 140.
[11] In its appellate brief, the
Commonwealth repeatedly refers to the person who approached the vehicle as
"Hispanic," even though his ethnicity has no relevance here. We
point this out only to alert the parties to the issue of implicit bias, from
which no one is immune. See Commonwealth v. Buckley, 478 Mass. at 878 n.4
(Budd, J., concurring) (discussing implicit bias). We acknowledge that in
their testimony, the witnesses described the pedestrian they had observed as
Hispanic, and that the Commonwealth's appellate counsel apparently borrowed
such references in their brief. It is
not difficult, however, to avoid unnecessary references that may implicate such
bias whether it be present or not. The motion judge did so in this
case. Relying on the same testimony as appellate counsel, the judge
referred to the unknown parties by their roles (the pedestrian and the driver)
and thereby focused his analysis on the relevant facts, the conduct of the
individuals.
[12] Our dissenting colleague highlights
that the judge credited the testimony of a police witness that over a ten-year
period, "he ha[d] made numerous arrests for possession or distribution of
illegal narcotics in [that] general neighborhood." Post at
. In our view, such general
background information added little, if anything, to the reasonable suspicion
calculus. See Commonwealth v. Johnson,
454 Mass. 159, 163 (2009) (urging that judges consider presence in a high crime
area "with caution" given "that so-called high crime areas are
inhabited and frequented by many law-abiding citizens who are entitled to be
protected against being stopped and frisked just because of the neighborhood
where they live, work, or visit").
"The term 'high crime area' is itself a general and conclusory term
that should not be used to justify a stop or a frisk, or both, without
requiring the articulation of specific facts demonstrating the reasonableness
of the intrusion." Ibid.
[13] To be sure, as our dissenting
colleague accurately points out, the police observed the defendant exhibit
nervous behavior once they pulled over his vehicle. However, the fact that someone became anxious
after being stopped by at least four armed police officers has negligible force
(particularly to the extent that the defendant did not speak English, a factual
issue the judge did not resolve). See
Commonwealth v. Cruz, 459 Mass. 459, 468 (2011) ("It is common, and not
necessarily indicative of criminality, to appear nervous during even a mundane
encounter with police").
[14] The defendant has not argued that the
statements the prosecutor made at the evidentiary hearing should estop the Commonwealth
from trying to rely on the tip on appeal.
We assume arguendo that the Commonwealth's arguments based on the tip
are properly before us.
[15] The fact that the record does not
even memorialize what words the informant allegedly spoke itself impedes the
Commonwealth's efforts to establish the indicia of reliability of information
the police received. See Commonwealth v.
Mubdi, 456 Mass. at 396 ("By failing to introduce the 911 call in evidence,
the Commonwealth has made difficult what otherwise might have been a
straightforward assessment of the caller's source of information").
[16] As noted, the informant provided no
information about the vehicle's registration number or about the vehicle's
occupants, if any. It is far from clear
that the informant's tip satisfied the separate particularity requirement. Compare Commonwealth v. Lopes, 455 Mass. 147,
155, 157–158 (2009). We do not resolve
this issue, as the defendant has not raised it and we reverse on other grounds.
[17] In this regard, we note that it
stands to reason that the extent to which police corroboration can fill in the
gaps of demonstrating an informant's basis of knowledge and veracity will vary
depending on how great those gaps are.
If the evidence regarding the tip itself comes close to meeting the
Aguilar-Spinelli test on its own, then presumably a lesser amount of
corroboration is needed. Where, however,
as here, there has been no direct showing of the informant's veracity and basis
of knowledge, significant corroboration of that tip would be needed.
[18] Contrary to the suggestion made by
our dissenting colleague, there are no cases that hold that a tip as
unsubstantiated and uncorroborated as the one before us can be relied upon --
in whole or in part -- to establish reasonable suspicion. Indeed, it is difficult to find examples in
the case law of where the Commonwealth put forward so little evidence to try to
establish that a tip was reliable. Of
course, it is possible that the actual circumstances of the tip provided police
solid grounds for believing that the defendant was engaged in illegal drug
activities (with or without the subsequent observations that police made). But in the context of a motion to suppress,
the Commonwealth can rely only on what it puts in evidence. While the Commonwealth has substantial leeway
to protect its confidential sources, see Commonwealth v. D.M., 480 Mass. 1004,
1005 (2018), and cases cited, it must live with the litigation risks of doing
so.
footnotes for dissenting opinion
[1] "[T]he authority to conduct a
traffic stop where a traffic violation has occurred is not limited by '[t]he
fact that the [police] may have believed that the [driver was] engaging in
illegal drug activity.'"
Commonwealth v. Buckley, 478 Mass. 861, 866 (2018), quoting Commonwealth
v. Santana, 420 Mass. 205, 208 (1995).
[2] Specifically, Gero testified, "In
that specific area of Warren and Copeland is a -- Warren Garden is across the
street. That area -- I've participated
in numerous search warrants of the surrounding streets. I've made firearm arrests, drug arrests,
arrests for breaking and [entering,] warrant arrests in that general area of
the past [ten] years."
[3] See Aguilar v. Texas, 378 U.S. 108
(1964); Spinelli v. United States, 393 U.S. 410 (1969).