Opinion
15-P-177
02-23-2016
COMMONWEALTH v. CRISTIAN L. ALCANTARA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Pursuant to leave granted by a single justice of the Supreme Judicial Court, the defendant appeals from an order denying his motion to suppress statements made and evidence seized incident to a warrantless search conducted after he was ordered out of his motor vehicle. We affirm.
Background. We summarize the findings of fact issued by the motion judge, as well as the hearing testimony that he found credible. Lynn police Officers Stephen Emery and Timothy Nerich, while in plain clothes, were patrolling Eastern Avenue in the area of Western Avenue during the daytime. The area was known to police as a "hotbed" of street-level drug transactions. While on patrol, the officers observed a black Nissan Maxima with one occupant, the driver (the defendant), pull to the side of Eastern Avenue and park, leaving its engine running. After a very short time, the officers saw an individual cross the street and get into the front passenger seat of the Maxima, whereupon the vehicle pulled out onto Eastern Avenue and drove a short distance for no more than forty-five seconds, making a right turn without using a directional signal, before pulling to the side of the road again and stopping. The passenger then got out of the Maxima.
The officers, with their badges displayed, pulled their unmarked cruiser behind the Maxima. Officer Emery approached the driver's side of the Maxima while Officer Nerich approached the passenger, who was standing outside the vehicle. The defendant's window was down, and Officer Emery smelled a strong odor of unburnt marijuana emanating from the vehicle and observed a quantity of marijuana in the well of the door handle. Officer Emery ordered the defendant to step out of the vehicle and conducted a patfrisk, in which he discovered separate, folded stacks of bills in different denominations totaling more than $250 in the defendant's pants pocket. Officer Emery told Officer Nerich what he had found. After learning that the passenger possessed marijuana, Officer Nerich searched the interior of the vehicle and found marijuana on the front passenger seat and a large quantity of marijuana and a scale in the glove compartment. The motion judge credited Officer Emery's testimony that the circumstances of the encounter between the defendant and the passenger were consistent with a drug sale.
The motion judge's findings do not describe when Officer Nerich learned that the passenger possessed marijuana, the amount of marijuana he possessed, or where he obtained it. Officer Nerich did not testify at the motion hearing.
Specifically, Officer Emery cited the facts that the Maxima parked very briefly with its engine running, the passenger entered the vehicle and rode a very short distance before getting out, and that the encounter occurred in an area known for street-level drug sales.
Discussion. The defendant does not challenge the stop of the Maxima, and there can be little doubt that the experienced officers' observations furnished at least a reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime, thereby justifying a threshold inquiry and exit order. See Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 616 (2011). As the defendant correctly observes, however, the patfrisk of the defendant requires more than reasonable suspicion of a crime; instead the officers must have either a reasonable belief that the defendant is armed and dangerous, see Commonwealth v. Gomes, 453 Mass. 506, 512 (2009), or probable cause to arrest him. In the present case, we believe that the totality of the circumstances furnished probable cause to arrest at the time Officer Emery conducted the patfrisk of the defendant. Officer Nerich's search of the vehicle accordingly was justified under the automobile exception to the warrant requirement. See Commonwealth v. Motta, 424 Mass 117, 124 (1997).
The vehicle made a turn without using a directional signal. In any event, the vehicle was already stopped at the time the officers approached it.
Though the motion judge made passing adoptive reference to Officer Emery's mention of general "safety" concerns as an independent justification for the patfrisk, neither Officer Emery nor the motion judge cited any specific facts that would give rise to a reasonable belief that the defendant was armed and dangerous. We accordingly do not rest our conclusion on the ground that the officers held a reasonable fear for their safety.
"[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense. . . . The officers must have entertained rationally more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt." Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting from Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989) (quotation marks omitted). "In dealing with probable cause . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Motta, supra at 120, quoting from Commonwealth v. Cast, 407 Mass. 891, 895 (1990).
In the present case, Officers Emery and Nerich observed the defendant park his vehicle on the side of the street in an area known for drug sales, while leaving the engine running, and shortly thereafter saw the passenger join the defendant for a short trip that led the officers to believe that the defendant had engaged in a drug transaction with the passenger. That belief was corroborated when Officer Emery approached the defendant and observed marijuana in the driver's side door handle and smelled a strong odor of unburnt marijuana emanating from the vehicle. Though alone not enough to prove beyond a reasonable doubt that a drug sale had occurred, in the totality of the circumstances the officers' observations furnished probable cause for an arrest, thereby justifying the ensuing patfrisk of the defendant and search of the motor vehicle.
Order denying motion to suppress affirmed.
By the Court (Green, Hanlon & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 23, 2016.