Commonwealth v. Barreto , 113 N.E.3d 429 ( 2018 )

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17-P-1045 Appeals Court
COMMONWEALTH vs. ONAXIS BARRETO.
No. 17-P-1045.
Suffolk. May 11, 2018. - October 29, 2018.
Present: Milkey, Hanlon, & Singh, JJ.
Controlled Substances. Practice, Criminal, Motion to suppress.
Constitutional Law, Search and seizure, Investigatory stop,
Reasonable suspicion. Search and Seizure, Motor vehicle,
Reasonable suspicion. Evidence, Anonymous statement,
Corroborative evidence.
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.
2
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
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
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
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
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
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
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
6
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 fruitless5 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
5The 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.
7
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
8
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
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
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,
10
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
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.
10In 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
11
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
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.
11In 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.
12Our 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
12
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.
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
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
13To 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").
14The 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.
14
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).
15
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
16
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
15The 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").
17
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
As noted, the informant provided no information about the
16
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.
In this regard, we note that it stands to reason that the
17
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
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
18Contrary 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.
2
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
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
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]
3
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
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."
4
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
5
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
3 See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.
United States, 393 U.S. 410 (1969).
6
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]").
7
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
8
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
9
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.