Opinion
16-P-835
04-14-2017
COMMONWEALTH v. NIULKY DIME.
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
The defendant, Niulky Dume, appeals from order denying his motion to suppress, claiming that the police lacked probable cause to search and to seize him without a warrant. We affirm.
A single justice of the Supreme Judicial Court allowed the defendant to proceed with this interlocutory appeal.
Background. The motion judge found the following facts:
"New Bedford Detective Sergeant Justin Kagan, an experienced narcotics investigator, was working on December 19, 2014 at a location he knew from past experience and the experience of other officers to be a high drug area and one where they were having complaints of drug activity. At about 3:30 P.M., Kagan's attention was drawn to a car pulled over to the side of the road with a male operator. He saw another male approach and enter the car. He determined the car was registered to the defendant and knew that [the defendant] had a past arrest for narcotics distribution. He watched as the car traveled a short distance, half of a city block or less, before the passenger exited. He did not make any observations of what had occurred in the car between the defendant and passenger.
"Kagan believed based upon the area that what he had seen was a drug sale, based upon what he said was a 'meaningless ride,' i.e. a ride that would have no other legitimate purpose so must be a drug sale. He then had the passenger who left and was on foot stopped by other investigators who determined that male was Craig Perry. Perry had a bag of cocaine on him that was worth $50. [The defendant's] car was stopped by other officers who found fifty and three hundred dollars on him in two different locations."
The testimony from the motion hearing indicates that $311 were found in the defendant's pocket, and that a fifty-dollar bill was in a separate fold from the other money. The error does not bear on the result reached.
In denying the motion to suppress, the judge found the following factors justified the arrest and the subsequent search of the defendant: the defendant's presence in a high crime area, his past conviction of a narcotics sale, the observations of what could be construed as a meaningless ride, the stop of the passenger and the seizure of cocaine from him, and the officer's opinion based upon his experience.
Another officer testified that the defendant was immediately arrested after he was taken out of the car.
Discussion. The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights both "require that an arrest upon which a search is undertaken be based on probable cause." Commonwealth v. Santaliz, 413 Mass. 238, 240 (1992). "[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." Id. at 241, quoting from Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980).
"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." Commonwealth v. Ramos, 470 Mass. 740, 742 (2015) (quotation omitted). Where there has been an evidentiary hearing, "we defer to the credibility findings of the judge, who had the opportunity to observe and evaluate the witnesses as they testified." Commonwealth v. Peters, 453 Mass. 818, 823 (2009).
On appeal, the defendant claims that the factors relied on by the motion judge were not supported by the facts or were otherwise weak. Addressing each factor, in turn, we conclude that, taken together, the constellation of facts present here support a finding of probable cause.
As for the high crime area, the motion judge's reliance on Commonwealth v. Thompson, 427 Mass. 729, 734 (1998), formed an appropriate part of his analysis where Detective Kagan testified that he was surveilling that particular intersection due to recent complaints of drug activity, and that arrests and the recent execution of a search warrant had also occurred at that location. See Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007) (judge appropriately considered high crime setting of encounter, together with other factors, to conclude officers had reasonable suspicion).
The defendant argues that his arrest, eight years prior, was minimally relevant and we agree with him. In isolation this fact does not establish probable cause. However, it is a permissible factor, among others, for determining probable cause to arrest. Commonwealth v. Kennedy, 426 Mass. 703, 706-709 & n.5 (1998).
In his rulings of law, the judge references the defendant's conviction eight years prior. The record is clear, however, that the defendant was arrested, not convicted, as set forth in the motion judge's findings of fact.
Without doubt, the most compelling factor present here is the observation Detective Kagan made concerning the passenger's entry into the car operated by the defendant and the short ride they took, coupled with the discovery of cocaine on the passenger. Those facts together support an inference that the passenger entered the car for a reason unrelated to transportation, most likely to purchase the drugs found on his person. See Commonwealth v. Damelio, 83 Mass. App. Ct. 32, 34 (2012) (meaningless ride supported reasonable suspicion to approach passenger). Contrast Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011) (fact pattern did not include approach or investigation of suspected buyer following meaningless ride).
Finally, the defendant's argument that the motion judge essentially double counted the officer's opinion as to the course of events that he witnessed is unavailing. The motion judge appropriately considered Detective Kagan's training and experience in opining that the meaningless ride, taken together with all of the other factors, supported a finding of probable cause. See Commonwealth v. Castillo, 89 Mass. App. Ct. 779, 786 (2016).
Because the police had probable cause to arrest the defendant, the subsequent patfrisk and seizure of money from the defendant was permissible as a search incident to arrest. See G. L. c. 276, § 1; Commonwealth v. Alvarado, 420 Mass. 542, 551 (1995).
Order denying motion to suppress affirmed.
By the Court (Hanlon, Blake & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 14, 2017.