Commonwealth v. Anthony Arruda. ( 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-1188
COMMONWEALTH
vs.
ANTHONY ARRUDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from a District Court judge's
order allowing the defendant's motion to suppress suspected
fentanyl recovered from his person. The judge allowed the
motion on the ground that the detectives lacked reasonable
suspicion to justify the seizure of the defendant. We affirm.
Background. We summarize the facts as found by the judge,
supplemented with undisputed evidence from the record that does
not contradict the judge's rulings. See Commonwealth v.
Robinson-Van Rader, 492 Mass. 1, 4 (2023).
At approximately 12:30 P.M. on October 8, 2020, detectives
Paul McGuire and Guy Furtado 1 were on patrol in Fall River.
1 Detectives McGuire and Furtado were members of the Fall River
police department's vice and intelligence unit, which
investigates narcotic, prostitution, and gambling offenses in
the area.
McGuire spotted Timothy Eddy, a man known to him, walking at a
fast pace while on his cell phone. McGuire recognized Eddy as
someone "drug involved" from whom he had seized narcotics in the
past. McGuire also knew there was an active warrant for Eddy's
arrest. The detectives followed Eddy for a few blocks until he
walked into the parking lot of a coffee shop.
As Eddy arrived, the detectives observed the defendant, who
was unknown to them, approach from the other side of the parking
lot. The defendant and Eddy greeted each other with a "fist
bump" and entered the coffee shop. They were inside for about
three minutes before leaving with coffee cups and a small bag,
which seemed to contain a donut. Eddy put the bag and his
coffee cup on the ground, and the defendant gave Eddy an
"indiscernible object." Eddy then put his hand in his pocket
while the defendant kept his hands by his side. Neither Eddy
nor the defendant made any move to leave.
At this point the detectives approached Eddy and the
defendant and ordered them not to move and to show their hands.
The detectives read them their Miranda rights and asked if they
had any illegal narcotics. Eddy admitted to having some bags on
him, and Furtado recovered four bags of suspected fentanyl from
his pocket. The defendant also admitted to having bags on him,
which he stated contained heroin and which McGuire suspected was
fentanyl. The detectives seized several bags from his person.
2
The detectives later learned that the defendant lived in the
building next to the coffee shop.
Discussion. "In reviewing a decision on a motion to
suppress, we accept the judge's subsidiary findings absent clear
error but conduct an independent review of [the] ultimate
findings and conclusions of law" (quotations omitted).
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
The judge found that the detectives seized the defendant
when they ordered him not to move and to show his hands after he
left the coffee shop. The Commonwealth concedes that the
defendant was seized at that time. We agree, as the detectives
"objectively communicated that [they] would use [their] police
power to coerce [the defendant] to stay." Commonwealth v.
Matta, 483 Mass. 357, 362 (2019).
The question is then whether, at the time of the seizure,
there was reasonable suspicion that the defendant "was
committing, had committed, or was about to commit a crime."
Commonwealth v. Chin-Clarke, 97 Mass. App. Ct. 604, 608 (2020),
quoting Matta, 483 Mass. at 365. Reasonable suspicion must be
based on "specific, articulable facts and reasonable inferences
[drawn] therefrom" (citation omitted). Commonwealth v. DePeiza,
449 Mass. 367, 371 (2007). In determining whether reasonable
suspicion exists, we consider "the whole 'silent movie'
disclosed to the eyes of an experienced narcotics investigator."
3
Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). A mere
hunch or good faith on the part of the police does not pass
constitutional muster. See Commonwealth v. Clark, 65 Mass. App.
Ct. 39, 44 (2005).
At the time the detectives seized the defendant, all they
knew about him was that he met Eddy, a "drug involved" person
with an outstanding arrest warrant, at a coffee shop, purchased
coffee, and gave him an indiscernible item outside the shop.
These facts were inadequate to support a reasonable suspicion
that the exchange was a narcotics transaction. While the
detectives recognized Eddy, the defendant was unknown to them.
The defendant and Eddy clearly knew each other, as evidenced by
the "fist bump" greeting they exchanged outside the shop.
Consistent with two people meeting for coffee, the men left the
shop a few minutes later with coffee cups and a donut. And
after the defendant gave Eddy the unknown object, neither made
any move to leave. These benign observations did not give rise
to reasonable suspicion of an illegal narcotics sale. Without
more evidence "to color the transaction" they had witnessed, the
detectives lacked sufficient justification to seize the
defendant. Commonwealth v. Ellis, 12 Mass. App. Ct. 476, 477
(1981) (no reasonable suspicion where officer observed people
talking through car window and defendant exchanged unknown
object for what appeared to be money).
4
We are unpersuaded by the Commonwealth's assertion that
this case is analogous to the "silent movie" cases where
reasonable suspicion was found to exist. There were neither
reports of increased drug activity at the coffee shop nor any
evidence credited by the judge showing that the shop was in a
high drug area. Cf. Commonwealth v. Kennedy, 426 Mass. 703, 708
(1998); Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 451-452
(2015). The exchange was not of an unusual nature that would
typically illicit suspicion. Cf. Kennedy, supra at 708-709;
Santaliz, 413 Mass. at 241. Neither man moved to leave after
the exchange or was otherwise found by the judge to have moved
in a suspicious manner. Cf. Commonwealth v. Stewart, 469 Mass.
257, 261 (2014).
Unlike those cases, the detectives here, acting only on a
hunch after observing a fairly ordinary encounter, immediately
leapt to the conclusion that they had observed a drug sale and
seized the defendant. The defendant's "observed movements were
just as consistent with any number of innocent activities" as
they were with a narcotics transaction and, without more, did
not arise to reasonable suspicion. Commonwealth v. Barreto, 483
Mass. 716, 721 (2019). We therefore conclude that the seizure
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of the defendant was unlawful and that the evidence obtained
therefrom was correctly suppressed.
Order allowing motion to
suppress affirmed.
By the Court (Wolohojian,
Shin & Ditkoff, JJ. 2),
Clerk
Entered: October 10, 2023.
2 The panelists are listed in order of seniority.
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