Commonwealth v. Castillo

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15-P-289 Appeals Court
COMMONWEALTH vs. DOMINGO CASTILLO.
No. 15-P-289.
Suffolk. January 20, 2016. - July 25, 2016.
Present: Trainor, Agnes, & Massing, JJ.
Controlled Substances. Practice, Criminal, Motion to suppress,
Findings by judge, Interlocutory appeal. Probable Cause.
Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on July 25, 2013.
A pretrial motion to suppress evidence was heard by Debra
Shopteese, J.
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 case was
reported by her to the Appeals Court.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
Bradford R. Stanton for the defendant.
TRAINOR, J. The Commonwealth appeals from the allowance of
a motion to suppress evidence in the Roxbury Division of the
Boston Municipal Court. The Commonwealth argues that three of
2
the judge's factual findings are clearly erroneous because they
were not supported by the evidence presented at the suppression
hearing. The Commonwealth also argues that the judge erred in
allowing the motion to suppress because the police officer had
probable cause to believe that the defendant had sold heroin to
another individual. We vacate and remand.
Background. "We summarize the facts found by the motion
judge following the evidentiary hearing, supplemented where
necessary with undisputed testimony that was implicitly credited
by the judge." Commonwealth v. Oliveira, 474 Mass. 10, 11
(2016). 1
Officer Shawn Grant 2 testified that on the afternoon of July
24, 2013, he saw two individuals, later identified as Cesar
Caban and James Niemczyk, on Washington Street in the Roxbury
section of Boston walking back and forth while talking on
cellular telephones (cell phones). Officer Grant alerted other
officers in the area of the behavior and parked his unmarked
police vehicle on the same side of Washington Street as the two
individuals. After about fifteen minutes, Officer Grant saw the
1
The summary of the facts, pursuant to this directive, is
difficult under the very unusual circumstances of this case.
Under these unique circumstances we have attempted to follow the
teaching and mandate of Commonwealth v. Jones-Pannell, 472 Mass.
429, 436-438 (2015).
2
A sixteen-year veteran of the Boston police department and
a member of its drug control unit.
3
defendant cross Washington Street walking toward Caban and
Niemczyk, who were now standing near a tree, and place an item
into a residential mailbox 3 not more than twenty-five feet from
the tree. The defendant then walked to the tree and took money
which Caban had wedged into the branches. Caban then walked to
and reached into the mailbox and removed an item from inside.
Officer Grant reported what he had witnessed to the nearby
officers. Based on his training and experience, he believed he
had witnessed a drug transaction.
Officer Grant followed the defendant to where he entered
the passenger side of a parked automobile while other officers
observed Caban and Niemczyk. Officer Grant heard over the radio
that the other officers had stopped Caban and had found one
plastic bag containing heroin on him. After Officer Grant heard
this, he stopped the automobile with the defendant in it and
placed the defendant under arrest for distribution of a class A
substance (heroin, in violation of G. L. c. 94C, § 32[a]).
During a search incident to arrest of the defendant, Officer
Grant found two cell phones on him and a total of $680 -- $630
in one pocket, and fifty dollars in the other.
3
The judge found that Officer Grant could not see the
mailbox at all. The judge stated, "[H]e stated candidly to the
court that he could not see the mailbox from the position that
he was parked in." As discussed later, this finding is clearly
erroneous based on the testimony, as credited, given by Officer
Grant.
4
Discussion. a. Judge's findings. When reviewing a motion
to suppress, "we adopt the motion judge's factual findings
absent clear error." Commonwealth v. Isaiah I., 450 Mass. 818,
821 (2008), citing Commonwealth v. Catanzaro, 441 Mass. 46, 50
(2004). "We take the facts from the judge's findings following
a hearing on the motion to suppress, adding those that are not
in dispute, and eliminating those that, from our reading of the
transcript, are clearly erroneous." Commonwealth v. Wedderburn,
36 Mass. App. Ct. 558, 558-559 (1994). "A finding is clearly
erroneous when 'although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.'" Green
v. Blue Cross & Blue Shield of Mass., Inc., 47 Mass. App. Ct.
443, 446 (1999), quoting from Springgate v. School Comm. of
Mattapoisett, 11 Mass. App. Ct. 304, 309-310 (1981).
The motion judge heard testimony from a single witness,
Officer Grant, and after counsels' arguments, made oral findings
and rulings. The judge both explicitly and implicitly credited
the testimony of Officer Grant and based her ruling on what she
believed he had said. 4 Here, the Commonwealth argues that the
judge's factual findings, upon which her legal conclusions are
4
The judge explicitly credited the testimony by stating
that the officer had testified "candidly," and implicitly
credited the testimony by basing her findings (albeit
unsupported) on that testimony.
5
based, are clearly erroneous. See Commonwealth v. Thomas, 429
Mass. 403, 405 (1999) ("motion judge's findings of fact are
binding in the absence of clear error").
1. Officer Grant's view of the mailbox. The judge stated
in her findings that "Officer Grant had a hunch that something
was placed in the mailbox, but he stated candidly to the court
that he could not see the mailbox from the position that he was
parked in; he was between the store and the doorway where the
mailbox is situated, apparently, or mailboxes, and he could not
actually see into the doorway where the mail drop or mailboxes
are, so he could not see whether the defendant put anything in
the box, mailed anything, took anything from the box. Officer
Grant simply was not able to observe this." 5 Officer Grant's
testimony on direct examination, however, was significantly
different. The prosecutor asked: "[Y]ou said that you saw the
defendant place something in a mailbox?" Officer Grant
answered: "Yes, an open or broken mailbox, I should say." The
prosecutor continued: "Do you recognize this?" Officer Grant
answered: "[I]t looks like the mailbox that he placed an item
in. I'm not sure if that's the exact mailbox." After some
discussion about the size of the item placed in the mailbox, the
prosecutor returned to the question of Officer Grant's ability
5
We consider this statement by the judge to be explicitly
crediting Officer Grant's testimony while, at the same time, not
being supported by his actual testimony.
6
to observe the mailbox. The prosecutor asked: "[W]here were
you when you saw the defendant place the item in the mailbox?"
Officer Grant responded: "I wasn't exactly in front of the
mailbox, I was away . . . f[a]rther away from the mailbox." In
response to the prosecutor's question, "About how far away?" the
officer responded, "Ten feet."
Defense counsel vigorously cross-examined Officer Grant
regarding his ability to observe the mailbox and whether he
could see exactly what the item was that the defendant placed
into it and what later was removed from it. Defense counsel
asked Officer Grant if he inspected the mailbox after the
alleged buyer removed the item placed there by the defendant.
Officer Grant responded that he did inspect the mailbox and
defense counsel followed by asking: "Then you went to -- you
went to the mailbox then?" Officer Grant responded, "No, [I]
looked in the mailbox from my vehicle; I didn't get out of my
vehicle . . . [y]es, yes, I didn't get out of my vehicle."
Defense counsel asked again, "Okay. And could you see the
mailboxes?" Officer Grant responded, "I could see the
mailboxes, yes." This was the only testimony regarding the
mailbox offered at the hearing. 6
6
Defense counsel later asked Officer Grant whether, if
someone had been standing in the doorway, his view of the
mailbox would have been blocked. There was, however, no
evidence or testimony of anyone standing in the doorway.
7
The fact that the judge's finding was erroneous is clear,
but equally significant is the fact that this testimony was not
susceptible of more than one interpretation. The judge made an
explicit credibility determination of Officer Grant's testimony.
See Commonwealth v. Alvarado, 423 Mass. 266, 268 n.2 (1996)
("The motion judge's findings do not incorporate all the
testimony of the police officer who testified at the hearing on
the motion to suppress . . . . We . . . refer to the
uncontroverted testimony of the police officer because we infer
the motion judge accepted it in its entirety"). See also
Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990) ("On a
motion to suppress, the determination of the weight and
credibility of the testimony is the function and responsibility
of the [motion] judge who saw the witnesses, and not this court"
[quotation omitted]); Commonwealth v. Scott, 52 Mass. App. Ct.
486, 492 (2001), S.C., 57 Mass. App. Ct. 36 (2003) and 440 Mass.
642 (2004). The judge explicitly credited Officer Grant's
testimony, and it was the only testimonial evidence offered at
the hearing. The officer's testimony was neither ambiguous nor
susceptible of more than one interpretation, yet the judge's
findings do not reflect his testimony and are clearly erroneous. 7
7
Nowhere in the record of the hearing does the judge
discredit any of the officer's testimony. We must infer
therefore that all of the testimony had been credited.
8
2. Caban and Niemczyk's view of the mailbox. The judge
next found that "the other two individuals, Caban and the third
individual, were not in a position to see the mailbox at that
time either. There's no evidence that they were near the
mailbox or could view the mailbox." While Officer Grant did not
testify how far away Caban and Niemczyk were from the mailbox,
he did testify that they were on the same side of the street as
the mailbox, "f[a]rther away from the mailbox . . . standing
near a tree that was planted on the sidewalk." He then
testified that he was "[p]robably fifteen feet" away from the
tree. He testified further that he could clearly see that it
was "money" that Caban put in the tree and that this occurred
about "[t]wo seconds" after the defendant put the item into the
mailbox. The entire transaction observed and described by
Officer Grant occurred in one to two minutes and consisted of
the defendant placing an item in the mailbox, Caban placing
money in the tree, the defendant walking to the tree and
retrieving the money, and Caban walking to the mailbox and
retrieving the item. The defendant and Caban had to be standing
close to each other in order to complete the transaction within
the time frame described by Officer Grant.
3. Sequence of events. Finally, and relatedly, the judge
found that she did "credit that the money was put in the tree,
between the tree branches, but . . . I don't know where the tree
9
branches were, really, what the location, whether the defendant
was simply walking by the area. I don't know that the defendant
walked directly to that area." Officer Grant, however,
testified that he witnessed the defendant cross Washington
Street, walk to the mailbox, and place something inside it.
Within two seconds, Caban put money in the tree branches. The
defendant then walked directly to the tree, which was within
twenty-five feet of the mailbox, and retrieved the money. Caban
then walked directly to the mailbox and took something out of
it. Office Grant testified that the two men then went their
separate ways. There is no basis in the record to support the
judge's finding that the defendant did not walk directly to the
mailbox and from the mailbox to the tree to retrieve the money.
These facts, based on the uncontroverted testimony that the
judge credited, require us to draw the inescapable inference
that Caban or Niemczyk must have seen the defendant put the
drugs in the mailbox or Caban would not have put the money in
the tree. The judge's finding was clearly erroneous.
In allowing the motion to suppress, the judge concluded
that her
"primary concern [was] that the officer did not see the
defendant place any item in the mailbox and that the other
two individuals did not see the defendant place any item in
the mailbox, nor were the individuals on the phone with
each other confirming any kind of drop-off or anything of
that nature.
10
"So, anything the officer did at that point was based
on his hunch that a transaction had occurred, and the stop
exceeded the permissible scope." (Emphasis added.)
The basis for the judge's allowance of the motion to
suppress is not only clearly erroneous but is directly
contradicted by the only evidence she heard, and credited, and
which makes up the entire record.
Commonwealth v. Jones-Pannell, 472 Mass. 429 (2015),
instructs us that we may only supplement a judge's findings when
"additional facts [are] necessary to support the judge's
conclusion, such as where the judge found the witnesses'
testimony truthful and accurate." Id. at 437 (quotation
omitted). Generally, we may not "revise a judge's subsidiary
findings of fact," id. at 438, in order to reach a conclusion
contrary to that reached by the judge. "[T]he mere absence of
contradiction is not enough to permit supplementation with facts
not found by the judge." Id. at 436. Similarly, we should not
supplement a "judge's findings of fact with evidence in the
record that was not included in the judge's findings, and as to
which the judge made no statement of credibility, on the
assertion that the judge implicitly credited that testimony."
Id. 436-437. "In the absence of findings on a critical issue
. . . or where the facts as found are susceptible of more than
one interpretation, and there is additional evidence in the
11
record, neither implicitly credited nor discredited by the
judge, remand may be appropriate." Id. at 437 (quotation
omitted). See Commonwealth v. Isaiah I., 448 Mass. 334, 338-339
(2007), S.C., 450 Mass. 818 (2008). Ultimately, it is never
appropriate for an appellate court "to engage in what amounts to
independent fact finding in order to reach a conclusion of law
that is contrary to that of a motion judge who has seen and
heard the witnesses, and made determinations regarding the
weight and credibility of their testimony." Commonwealth v.
Jones-Pannell, 472 Mass. at 438. 8 However, we do not accept the
judge's subsidiary findings of fact that are clearly erroneous
when evaluating the judge's ultimate findings and conclusions of
law. Ibid.
In consideration of these clear and explicit directives,
and notwithstanding the singular and unique circumstances of
this case, we are compelled to remand this matter for the motion
judge to correct these errors.
There is nothing in Officer Grant's testimony that is
either ambiguous or susceptible of a different interpretation.
The judge specifically credited the testimony of the witness,
and then made findings unsupported by that testimony. There is
8
Jones-Pannell also makes emphatically clear that we should
not assume that the judge implicitly credited testimony that
contradicts the judge's ultimate legal conclusion simply because
only one witness has testified at a motion hearing, and the
testimony is therefore "uncontroverted." 472 Mass. at 438.
12
no question of the credibility or the weight given to the
witness's testimony and there is no contradictory testimony to
which to compare it. The testimony stands on its own and in
stark contrast to the judge's actual erroneous findings. Under
these unique circumstances, we are directing the judge to
correct these errors, upon remand, to comport with the clear,
unambiguous, uncontroverted and credited evidence offered at the
hearing. 9
b. Probable cause. In addition, the motion judge erred in
ruling that Officer Grant lacked probable cause to believe that
the defendant had sold heroin to Caban. The judge concluded
that "while the police might have had enough to make a threshold
inquiry in this situation, there was certainly not enough to
make an immediate arrest as was done here." The judge reached
this conclusion when she found that Officer Grant had not seen
the exchange of drugs for money. However, this legal conclusion
is erroneous because our case law does not require an officer to
see the item exchanged in order to create a reasonable
suspicion, or even probable cause, to believe that a drug
transaction has occurred. See Commonwealth v. Kennedy, 426
Mass. 703, 710 (1998) (declining to "adopt a per se rule that an
9
For the purpose of this analysis, we assume, of course,
that the judge, on remand, continues to credit the officer's
testimony and does not make an explicit finding discrediting
some or all of that testimony.
13
officer must actually see an object exchanged . . . before he
has sufficient evidence supporting probable cause to arrest").
In Kennedy, the court reasoned that, "[g]iven the practical
consideration of the small size of packages of drugs, which are
capable of being concealed within a closed hand, we would
critically handicap law enforcement to require in every
circumstance that an officer not only witness an apparent
exchange, but also see what object was exchanged, before making
a search incident to an arrest." Id. at 711. "Probable cause
may be established where the 'silent movie' observed by an
experienced narcotics investigator reveals 'a sequence of
activity consistent with a drug sale . . . .'" Commonwealth v.
Stewart, 469 Mass. 257, 262 (2014), quoting from Commonwealth v.
Santaliz, 413 Mass. 238, 242 (1992). 10 The "silent movie"
actually depicted in this case consisted of the following
observations made and testified to by Officer Grant: Caban and
Niemczyk pacing back and forth while talking on cell phones, the
defendant placing an item in a mailbox near Caban, Caban looking
at the defendant, Caban then placing money in a tree branch, the
defendant retrieving the money from the tree branch, Caban
retrieving the item from the mailbox, both men leaving in
10
Here, the totality of the judge's erroneous findings
would have depicted a "silent movie" significantly different
from the one that actually occurred according to the officer's
testimony.
14
different directions, and other officers radioing Officer Grant
to inform him that Caban had been stopped and found with heroin.
This was sufficient for Officer Grant, based on his training and
experience, to have probable cause to arrest the defendant. See
Commonwealth v. Gullick, 386 Mass. 278, 283 (1982) ("Probable
cause to arrest exists when, at the moment of arrest, the facts
and circumstances known to the police officers were sufficient
to warrant a person of reasonable caution in believing that the
defendant had committed or was committing a crime").
Conclusion. Because the judge's findings were clearly
erroneous based on the uncontroverted evidence at the
suppression hearing, the suppression order must be vacated and
the matter remanded. On remand, the judge shall make findings
that comport with the hearing testimony she credits, and she
shall make explicit any testimony she does not credit.
So ordered.