Commonwealth v. Sifeddine Rogadi.

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-1219
COMMONWEALTH
vs.
SIFEDDINE ROGADI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Sifeddine Rogadi, was indicted for murder,
possession of a large capacity firearm, and possession of
ammunition without a firearms identification card. Following an
evidentiary hearing, a Superior Court judge allowed the
defendant's motion to suppress the seizure of a car, and the
firearm found therein, but denied it as to statements made by
the defendant. After its motion for reconsideration was denied,
the Commonwealth filed an application for leave to pursue an
interlocutory appeal with the single justice of the Supreme
Judicial Court. The single justice ordered the Commonwealth to
supplement its application with a statement as to the viability
of its case without the suppressed evidence. The Commonwealth
filed a response, and the single justice allowed the
Commonwealth's application and ordered that the interlocutory
appeal proceed in this court. We affirm.
1. Background. We recite the facts as set forth in the
judge's memorandum and order. On December 29, 2020, Jaden
Brito-White was shot and killed in the area of 10 Bowdoin Street
in Malden by two people, whom a witness described as wearing
dark clothing. The police did not know the race or gender of
the shooters, nor did they have any other specific information
other than that the shooters wore dark clothing. Investigators
collected video recordings (video) from the area in an effort to
identify the car that the shooters drove to and from the scene.
In addition to video from the immediate area where the victim
was killed, investigators collected video that showed a car
(suspect car) that investigators believed was involved in the
shooting. Video showed that the suspect car drove into a
parking lot next to 10 Bowdoin Street, exited the parking lot,
and drove onto an intersecting street.
Over the next several days, investigators collected
additional videos. Based on their review, investigators
determined that the suspect car was a "maroon-purple color,"
specifically "black cherry metallic," a color found on only two
2
specific Chevrolet models, the Malibu and the Impala.1 On
January 5, 2021, investigators drafted a public bulletin for
distribution to other police departments. The bulletin
described the suspect car as "a newer model Chevrolet Impala or
Malibu with a 'black cherry metallic color' . . . [and] no front
registration plate." That same day, two investigators were in
the field collecting additional videos when they saw a "Chevy
Malibu, with no front plate and the distinct fog lights, coming
up Gledhill . . . on the night of the shooting." Investigators
followed the car as it sped through residential neighborhoods,
and instructed Malden police to pull it over.
Police officers pulled over the car, told the driver, later
identified as the defendant, that they pulled him over for
speeding, and asked him to get out of the car. Investigators
noticed that the car had a white transponder box on the
windshield and a moon roof, similar to what they observed in a
video of the suspect car. Upon questioning, the defendant told
police that his mother rented the car on December 27, 2020, and
that only he and his mother used it. After police wrote a
speeding citation, they told the defendant that they were
seizing the car because they "believe[d] [the] vehicle was
1 In a video, an investigator noticed a "Chevrolet emblem" on the
car's grill which allowed them to narrow down the manufacturer
of the car.
3
involved in a very serious incident that happened several days
prior." The defendant left on foot, the car was seized, and a
warrant was later issued to search it. A semiautomatic firearm
was found in the car.
2. 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). Here,
despite what he described as an exhaustive investigation, the
judge concluded that the police lacked probable cause to seize
the car. He did not credit the investigators' testimony about
the information they had about the suspect car at the time that
they stopped the defendant. Specifically, the judge found that
the "distinctions between the draft bulletin and the later
testimony during the hearing are difficult to reconcile and
certainly create doubt about [whether] the car seen in the video
was the one seized." The Commonwealth contends this finding was
in error. We are not persuaded as "[t]he determination of the
weight and credibility of the [evidence] is the function and
responsibility of the judge who saw and heard the witnesses, and
not of this court." Commonwealth v. Gonzalez, 487 Mass. 661,
668 (2021), quoting Commonwealth v. Neves, 474 Mass. 355, 360
(2016).
4
In determining whether the police have probable cause to
conduct a warrantless seizure, "we ask whether 'the information
possessed by police, at the time of the proposed warrantless
search, provide[d] a substantial basis for the belief that there
[was] a timely nexus or connection between criminal activity, a
particular person or place to be searched, and particular
evidence to be seized.'" Commonwealth v. Dame, 473 Mass. 524,
537, cert. denied, 580 U.S. 857 (2016), quoting
Commonwealth v. Cataldo, 69 Mass. App. Ct. 465, 470 (2007).
In the context of vehicle seizures, probable cause exists
"where facts indicated that there was a connection between the
crime and the vehicle." Dame, 473 Mass. at 537. See
Commonwealth v. Brown, 367 Mass. 24, 33 (1975) (probable cause
existed for warrantless search of car as eyewitness described
suspects by name, and identified car as yellow Toyota station
wagon with roof rack, dented side and loose front license
plate). See also Commonwealth v. Gentile, 437 Mass. 569, 573-
574 (2002) (probable cause existed for warrantless search of car
when it was last known location of victim, and evidence of
victim's disappearance might be contained therein). These cases
are notable because the police had unique identifying factors
tying the car or its occupants to the crime. By contrast, here
the police had a basic description of the suspects' clothing and
a broad description of the type of car (a newer model Chevrolet
5
Malibu or Impala), its color (black cherry metallic), and the
lack of a front license plate. More was needed as "probable
cause must be based on particularized facts, not 'simply general
conclusions.'" Commonwealth v. Perry, 489 Mass. 436, 458
(2022), quoting Commonwealth v. Rosetti, 349 Mass. 626, 632
(1965). When the car was seized, investigators did not have
particularized facts to connect it to the shooting.
Because the police did not have "a timely nexus or
connection between criminal activity" and the car seized by
investigators, Dame, 473 Mass. at 537 (quotation omitted), the
evidence derived from the seizure was also properly suppressed.
See Commonwealth v. Fredericq, 482 Mass. 70, 78 (2019).
Order allowing in part motion
to suppress affirmed.
Order denying motion for
reconsideration affirmed.
By the Court (Blake,
Massing & Hand, JJ.2),
Clerk
Entered: November 17, 2023.
2 The panelists are listed in order of seniority.
6