Opinion
19-P-216
01-08-2020
COMMONWEALTH v. JEREMY BISHOP.
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
In this interlocutory appeal, we address whether, in the context of a controlled undercover operation wherein a suspect agreed to sell his illegal firearm to a confidential informant, there was probable cause to arrest the defendant, whose sole known connection to the aforementioned operation was his presence as a passenger in the car owned and driven by the suspect to the agreed upon place and at the agreed upon time. Because the defendant's presence did not give rise to probable cause to arrest him, we affirm the Superior Court judge's order allowing the defendant's motion to suppress statements made subsequent to his arrest.
Background. We set forth the facts as found by the judge, supplemented only by undisputed facts in the record that were implicitly credited by her. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436-438 (2015); Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
In May 2016, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) special agent Shervin Dhanani began working with a confidential informant (CI), who informed Agent Dhanani that he had purchased firearms from a New Hampshire resident. The CI did not know this individual's name, but the CI provided Agent Dhanani with a physical description of the individual and the telephone number the CI previously had used to arrange a purchase.
Agent Dhanani had been a special agent for approximately ten years, the last three of which had been at the ATF.
Agent Dhanani was able to connect the telephone number to Arthur Carriel, who had an address in Nashua, New Hampshire. Subsequently, Agent Dhanani began surveillance of the Nashua address and observed Carriel driving a white Mercedes. Also, from a photograph, the CI identified Carriel as the individual from whom he previously had bought firearms. The defendant was not seen during the surveillance of Carriel, and the CI did not mention the defendant to officers.
Agent Dhanani also reviewed Carriel's social media postings, which revealed a picture of Carriel standing in front of a white Mercedes with a firearm in his hand; none of Carriel's postings showed or referenced the defendant.
In August 2016, Agent Dhanani asked the CI to arrange to purchase a firearm from Carriel. While in Agent Dhanani's presence and with the speakerphone feature on, the CI used his cell phone to call Carriel at the aforementioned telephone number; during the telephone call, the CI agreed to purchase a MAC-11 firearm for $400 and a laser sight from Carriel. The exchange would take place the next day. During the telephone call, Carriel explained that he needed to obtain the MAC-11 from "my boy," who (according to Carriel) would be getting out of work around 4:00 P.M.
The CI was incarcerated at the time and was cooperating under a signed proffer agreement.
Agent Dhanani testified that he understood that the sale of a MAC-11 semiautomatic firearm was legal in New Hampshire.
The next day, the CI again called Carriel, who confirmed that he would try to meet with his "boy," who would be getting out of work by 4:30 P.M., and that Carriel would then head down to Boston to meet with the CI. Around 4:30 P.M., Agent Dhanani, posing as the CI and using the CI's cell phone, texted Carriel to arrange the time and place for the planned sale. They agreed to meet at a specific location in Dorchester around 7:00 P.M. As found by the judge, "Later, again by text, Carriel told Agent Dhanani that his boy did not come thru on the MAC-11, but that [Carriel] had an AK that he would be willing to sell . . . for $1000 along with the laser sight for an additional $200." Agent Dhanani agreed.
In the text exchange, Carriel wrote, "[M]y boy is front on it but I got my Ak I'll sell you for 1K." Agent Dhanani testified that "[h]is boy is front on it" meant that Carriel's "boy didn't follow through and give [the MAC-11] to [Carriel]." The judge's findings reflect Agent Dhanani's testimony, which the judge explicitly credited.
Around 7:00 P.M., Agent Dhanani, along with other ATF agents and Boston police officers, who had stationed themselves around the agreed-upon meeting area, saw Carriel's white Mercedes arrive. Carriel texted, "Yeah I'm here." Agent Dhanani texted back that he was "coming down."
Agent Dhanani and the other officers converged on the white Mercedes and ordered the two occupants out of the car. A few seconds after the exit order, an ATF agent smashed the vehicle's rear window. Carriel, who was in the driver's seat, and the defendant, who was in the front passenger seat, were removed from the vehicle, placed on the ground, and handcuffed. At that time, as Agent Dhanani testified, he had no idea who the defendant was or what role, if any, the defendant played in the transaction. There was no evidence that the defendant acted in a suspicious manner or made any gestures that caused officers to be concerned for their safety. A search of the defendant yielded no weapons or ammunition.
Agent Dhanani testified that at least ten officers converged on Carriel's vehicle.
A search of the vehicle yielded a Glock semiautomatic nine-millimeter firearm, which was found in the driver's side door pocket. Agent Dhanani testified that when the driver's side door was closed, the contents of the door pocket were not visible from the passenger seat. A laser sight was also found in the interior of the car. A "Zastava" (an AK-47 type firearm), two magazines, and ammunition were found in the trunk. Carriel and the defendant were taken to the police station, booked, and interviewed.
The defendant's and Carriel's cell phones were seized. Agent Dhanani called the telephone number associated with Carriel, and Carriel's seized cell phone rang.
The defendant subsequently was charged with (1) two counts of carrying a firearm without a license, pursuant to G. L. c. 269, § 10 (a); (2) two counts of possession of ammunition without a firearm identification card, pursuant to G. L. c. 269, § 10 (h) (1); and (3) one count of carrying a loaded firearm without a license, pursuant to G. L. c. 269, § 10 (n). He moved to suppress the statements he made to the police after his arrest. After conducting an evidentiary hearing, the judge allowed the defendant's motion to suppress his statements.
The defendant and Carriel also moved to suppress the evidence seized from Carriel's car. The judge declined to suppress those items. The propriety of that ruling is not before us on appeal.
Discussion. In our review of a judge's decision on a motion to suppress, we adopt the judge's factual findings absent clear error. Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). We then determine independently the correctness of the judge's application of constitutional principles to the facts as found. Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007). The Commonwealth bears the burden of proving that the arrest was supported by probable cause. See Commonwealth v. Chown, 459 Mass. 756, 763 (2011).
On appeal, the Commonwealth does not quarrel with the judge's factual findings but contends that, based on those findings, there was probable cause to arrest the defendant. Probable cause to arrest 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 had committed . . . an offense' for which arrest is authorized." Commonwealth v. Cartright, 478 Mass. 273, 283 (2017), quoting Commonwealth v. Jewett, 471 Mass. 624, 629 (2015). Probable cause to arrest requires more than mere suspicion but something less than evidence sufficient to sustain a conviction. Jewett, 471 Mass. at 629. In assessing whether probable cause to arrest exists, we "deal with probabilities" and the "practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act" (citation omitted). Id.
The Commonwealth maintains that the defendant was arrested after the exit order when he was placed on the ground and handcuffed. At that moment, the Commonwealth further contends, there was probable cause to arrest him on the basis that a prudent person would believe that the defendant was a coconspirator with Carriel in the illegal sale of the AK-47 because the defendant was a passenger in Carriel's car when Carriel arrived at the prearranged time and place of the planned illegal firearm sale. More specifically, the Commonwealth contends that it would be logical to infer that the defendant was the lookout for the firearm sale and the individual that Carriel referred to as his "boy," from whom Carriel had tried to obtain the MAC-11.
The defendant rightly does not contend that the exit order was unjustified. See Commonwealth v. Bostock, 450 Mass. 616, 621 (2008) (exit order justified where police have "reasonable suspicion of criminal activity"). At that time, the CI's information regarding Carriel had been corroborated and officers had reason to believe, based on the supervised telephone calls between Carriel and the CI, the text messages exchanged with Agent Dhanani, and Carriel's arrival at the designated time and place, that Carriel was in the white Mercedes and possessed an AK-47 firearm, which he intended to sell to the CI. See Commonwealth v. O'Day, 440 Mass. 296, 300-302 (2003); Commonwealth v. Ilges, 64 Mass. App. Ct. 503, 511-512 (2005). Thus, it appears clear that probable cause existed to stop, seize, and arrest Carriel. It follows that officers were also warranted in searching Carriel's car, the accomplishment of which included the demand that the defendant exit the vehicle. See Commonwealth v. Griffin, 79 Mass. App. Ct. 124, 128 (2011).
At oral argument, the Commonwealth's position was that an arrest was effected when multiple officers swarmed Carriel's car, smashed the window, put the defendant on the ground, and handcuffed him.
The Commonwealth's theory, however, ignores the evidence, and the judge's findings, that Carriel's "boy" "fronted" and could not or would not provide the MAC-11 and that Carriel intended, instead, to sell his own AK-47. Contrary to the Commonwealth's argument, there is nothing about the timing of Carriel's meeting with his "boy" earlier that afternoon in New Hampshire when Carriel tried but failed to obtain the MAC-11 and his arrival in Dorchester at 7:00 P.M. that suggests his "boy" travelled with him to the sale location. At no time was there any discussion or mention that Carriel's "boy" would be coming to Boston. Moreover, neither the communications between Carriel and the CI nor the text messages exchanged with Agent Dhanani suggest that Carriel's "boy" would attend the meeting at all, much less attend when the object of the exchange became Carriel's own AK-47. The defendant was not seen during the surveillance of Carriel, and the CI never mentioned the defendant; indeed, Agent Dhanani testified that he had no idea who the defendant was when he was arrested, or even whether he played any role in the transaction. Nothing was known about the defendant other than that he was present in Carriel's car when officers converged on the vehicle and smashed the window. This was an insufficient basis for probable cause. See Commonwealth v. Sepheus, 468 Mass. 160, 167 (2014), quoting Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986) ("The Commonwealth 'cannot rely on evidence that merely places the defendant at the scene of the crime and shows him to be in association with the principals. Rather, the Commonwealth must present additional evidence which implicates the defendant in the crime"); Commonwealth v. Griffin, 79 Mass. App. Ct. 124, 129 (2011) (affirming allowance of motion to suppress where nothing was known about defendant other than his presence in suspect's car travelling to and from New York for alleged drug transaction).
The Commonwealth asserts that the defendant's presence supports probable cause that he was a coconspirator with Carriel because Carriel was unlikely to have brought along an innocent witness to the scene of an illegal firearm sale. This same argument was rejected by the Supreme Judicial Court in Commonwealth v. Sepheus, 468 Mass. 160, 167 (2014) (in absence of evidence that defendant was present during "repetitive" criminal behavior, his presence during one criminal act insufficient to support probable cause). The Commonwealth's reliance on Commonwealth v. Champagne, 399 Mass. 80 (1987), is misplaced. In Champagne, the confined and monitored nature of the prison environment, together with the "fear of being caught or identified," permitted a reasonable inference that "the persons involved permitted only participants in the commission of the crime to be present." Id. at 83.
The Commonwealth's alternative theory -- that there was probable cause that the defendant constructively possessed a firearm because he was present in Carriel's car -- fares no better. As set forth supra, the defendant made no suspicious movements prior to his arrest. There was no information suggesting that the defendant knew that there were firearms in the car. To the contrary, one was in the driver's side door pocket, the other was in the trunk, and neither was visible to someone sitting where the defendant was sitting. His presence alone in a vehicle that officers had reason to suspect contained a firearm did not give rise to probable cause to arrest the defendant for constructive possession. See Commonwealth v. Romero, 464 Mass. 648, 658-659 (2013).
Order allowing motion to suppress affirmed.
By the Court (Kinder, Neyman & Wendlandt, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 8, 2020.