Commonwealth v. Pastor Padilla. ( 2023 )

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
22-P-505
COMMONWEALTH
vs.
PASTOR PADILLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial, a Superior Court judge found
the defendant guilty of one count of distributing heroin.1 On
appeal, the defendant argues that (1) the motion judge erred in
denying his motion to suppress, and (2) the trial judge erred in
admitting certain testimony. We affirm.
Background. The charge for which the defendant was
convicted was based on an incident that Woburn police officers
observed outside of a residence that they had under
surveillance. After a car the defendant was driving stopped at
the residence, two individuals from inside the home approached
the car and quickly spoke to the defendant. The police observed
1 The Commonwealth charged this as a second or subsequent
offense. The defendant pleaded guilty to the enhancement
portion of the indictment. The Commonwealth nol prossed two
additional counts.
one of the residents "walk up to the car to the passenger side,
crouch down, lean forward, a hand go in, a hand come out and go
into a pocket." Concluding that they had just observed a hand-
to-hand sale of narcotics, the police stopped the car. Then,
after the individuals from the house admitted that they had just
purchased three grams of heroin for $150, the police arrested
the defendant. An inventory of the car's contents revealed $150
in cash in one of the car's cup holders.
Discussion. 1. Motion to suppress. "Police may effect a
motor vehicle stop based on reasonable suspicion of criminal
activity." Commonwealth v. Barreto, 483 Mass. 716, 718 (2019).
Arguing that the police lacked reasonable suspicion to stop the
car under the circumstances present here, the defendant moved to
suppress the discovery of the cash and any other evidence found
in the car.
In reviewing the denial of that motion, we accept the
motion judge's subsidiary findings of fact absent clear error,
but we independently review his ultimate findings and
conclusions of law. See Commonwealth v. Tejada, 484 Mass. 1, 7
(2020). Having done so, we agree with the motion judge that the
police had reasonable suspicion to stop the car.
Where, as is the case here, the basis for reasonable
suspicion is a perceived drug transaction, "[i]t is not
necessary . . . that the police officer observe an exchange of
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items or actually see drugs or cash, but it is necessary that
the observations by the police occur in a factual context that
points to criminal activity." Commonwealth v. Kearse, 97 Mass.
App. Ct. 297, 302 (2020). See Commonwealth v. Stewart, 469
Mass. 257, 260-261 (2014). The circumstances present here
provided ample support for the police to believe that they had
witnessed a hand-to-hand sale of illegal narcotics. The
transaction occurred directly in front of a residence that the
officers had been surveilling due to neighbors' complaints of
traffic associated with the drug trade that had "ramped up" as
recently as "that day" and "the week prior." See Commonwealth
v. Freeman, 87 Mass. App. Ct. 448, 452 (2015) ("reports of
'increased drug activity,' even if anonymous, are sufficient to
contribute to the circumstantial evidence that a drug
transaction had occurred"). The officers also knew that someone
at the residence had suffered a drug overdose there within the
last eight months.2 See Commonwealth v. Clark, 65 Mass. App. Ct.
39, 45 (2005) (fact that police knew participants to be drug
dealers or users relevant factor). Moreover, the police knew
2 Putting aside that the motion judge may well have credited
evidence of additional drug-related complaints and reports of
more recent overdoses at the residence, we are unpersuaded by
the defendant's argument that the police relied on information
that was unduly stale. In any event, the knowledge of the prior
incidents served merely to contextualize what the police were
directly observing at the scene; it was not the primary basis of
their decision to detain the defendant.
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that within the prior year, the very car that the defendant was
driving had been involved in two drug-related incidents, at
least one of which led to an arrest. With these contextual
circumstances in mind, the experienced narcotics officers had
ample justification to believe that the apparent hand-to-hand
interchange they observed was an illegal narcotics transaction.
Contrast Barreto, 483 Mass. at 720-721 (no reasonable suspicion
where officers did not directly observe drug transaction and the
location, buyer, and seller were not associated with prior drug
activity).
2. Evidentiary issue. At trial, one of the officers
testified that at the scene he relayed to his fellow officers
that he "saw a hand-to-hand take place." The defendant did not
object to this testimony. On appeal, he claims that this
characterization amounted to improper expert testimony on an
ultimate issue in the case, that is, whether an illegal
transaction had occurred. See Commonwealth v. Canty, 466 Mass.
535, 541 (2013) (in operating under influence case, officer may
testify that driver appeared intoxicated, but not that he was
driving under influence). We disagree.
We view the testimony as offering explanatory background
for what occurred at the scene, not an opinion that the
defendant's conduct amounted to a criminal offense. Moreover,
police officers are given some latitude in applying their
4
experience and training to help illuminate their observations.
See, e.g., Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539
(2012) ("police officer is permitted to rely on his training and
experience and to give testimony that is explanatory and
nonconclusory about the common characteristics of street-level
narcotics transactions when it will be of assistance to the
[fact finder]"). In addition, because this was a bench trial,
any concerns that the fact finder would be unduly influenced by
a witness's expression of an opinion as to a defendant's guilt
is, at a minimum, much less present. We not only presume that
the trial judge understood that it was ultimately his job to
determine whether the defendant had distributed heroin, but
also, comments the judge made during the trial demonstrate that
he was particularly sensitive to this issue.3
Finally, even if the testimony were viewed as improper, it
did not create a substantial risk of a miscarriage of justice.
The evidence against the defendant was quite strong. For
example, the testimony from the two individuals that they had
just purchased three grams of heroin from the defendant for $150
was corroborated by the discovery of the $150 in cash found in
3 During cross-examination, the officer continued to refer to his
having observed a "hand-to-hand." This prompted the
Commonwealth itself to object. The judge assured the
Commonwealth that he "c[ould] ignore [the characterizations],"
while adding that "if a jury were here, there would be more of a
caution."
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the car's cupholder. In addition, defense counsel conducted an
aggressive cross-examination of exactly what the testifying
officer could observe from his vantage point. We are confident
that the officer's reference to having seen a "hand-to-hand" did
not sway the judge's finding. See Commonwealth v. Soto, 45
Mass. App. Ct. 109, 114 (1998) ("unlikely" that officer's
unobjected-to testimony that he believed that he had just seen
drug transaction would, on its own, create substantial risk of
miscarriage of justice).
Judgment affirmed.
By the Court (Milkey, Blake &
Sacks, JJ.4),
Clerk
Entered: September 22, 2023.
4 The panelists are listed in order of seniority.
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