Opinion
14-P-563
06-04-2015
COMMONWEALTH v. ELI LUTTENBERGER.
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
Before us is the Commonwealth's interlocutory appeal from an order of a District Court judge allowing the defendant's motion to suppress evidence seized pursuant to a search incident to arrest. After an evidentiary hearing at which two police officers testified, the judge concluded that the police lacked justification to search the defendant's backpack as a search incident to arrest. We conclude that the judge erred in applying the law to the facts and reverse.
1. Factual background. In reviewing a decision on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The assessment of witness credibility is the exclusive province of the motion judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 (2007); Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 639 (2001). Here, the motion judge did not issue written findings. The facts are not in dispute however and the appeal presents solely a question of law; therefore we are able to consider the appeal without engaging in improper appellate fact finding.
At approximately 11:10 P.M. on August 23, 2013, Officer Jason LaForest, an officer of four years, was on duty, in uniform, on bicycle patrol. As a result of receiving complaints from the employees of the Cumberland Farms store in Great Barrington and other individuals about drug transactions and drug and alcohol use in the store's parking lot, Officer LaForest was conducting surveillance there.
Positioned behind some trees and a fence, Officer LaForest observed a large group of people gathering in the store's parking lot. He saw the defendant and Evan Cabaniol speaking with each other, and heard Cabaniol ask the defendant, "Do you have it?" or "You got it?" The defendant and Cabaniol walked away from the large group, and each removed and unzipped their respective backpacks, took something from within their backpacks, and engaged in what appeared to Officer LaForest, based on his training and experience, to be a hand-to-hand drug transaction. Officer LaForest could not see whether drugs were exchanged. Officer LaForest then approached the defendant and Cabaniol and asked them to sit on the curb while he called for backup.
The Commonwealth and the defendant both note that the transcript incorrectly states that Cabaniol's last name is "Cavanaugh."
About one week earlier, Officer LaForest had intercepted Cabaniol selling heroin to a police informant. Cabaniol admitted to Officer LaForest at that time that he was a heroin user.
Three officers responded to the call for backup, including Officer Jonathan Finnerty. Officer Finnerty knew Cabaniol to be a drug user and had previously arrested Cabaniol for drug-related offenses.
The officers first searched Cabaniol and seized a hypodermic needle. Officer LaForest released Cabaniol. The officers searched the defendant's backpack and seized marijuana, a digital scale, $369 in cash, a bottle of vodka, and sandwich baggies. The officers also found a hydrocodone pill on the defendant's person.
2. Procedural background. At the hearing on the motion to suppress the evidence, the Commonwealth argued that there was probable cause for a reasonable police officer to believe that a drug transaction had occurred and to arrest the defendant based on the following facts and circumstances: (1) there were complaints by store employees and other individuals of drug transactions and drug use in the Cumberland Farms parking lot; (2) Cabaniol was a known user; (3) the behavior of the defendant and Cabaniol, such as walking away from the crowd; and (4) Officer LaForest's opinion that he had observed a hand-to-hand drug transaction. Defense counsel persuaded the judge to conclude, however, that even if there had been probable cause to arrest before the search, the fact that Officer LaForest released Cabaniol meant that there was not probable cause for the defendant's arrest until after the police searched the backpack.
3. Discussion. A proper search incident to an arrest requires that the arrest itself must be lawful, which means that it must be based on probable cause. The search may precede the formal arrest, provided probable cause to arrest exists at the time the search is made and provided that probable cause to arrest exists independent of the results of the search. See Commonwealth v. Santiago, 410 Mass. 737, 742 (1991); Commonwealth v. Johnson, 413 Mass. 598, 602 (1992). Although the defendant's argument has surface appeal, the search of the backpack was a valid search incident to arrest.
A search incident to arrest is authorized by G. L. c. 276, § 1, under which "police are authorized to conduct a search incident to arrest 'only (1) for the purpose of seizing evidence of the crime for which the arrest has been made in order to prevent its destruction or concealment or (2) for the purpose of removing any weapon the person arrested might use to resist arrest or to escape.'" Commonwealth v. Maingrette, 86 Mass. App. Ct. 691, 702 (2014), quoting from Commonwealth v. White, 469 Mass. 96, 99-103 (2014).
Here, the judge should not have allowed the motion to suppress because probable cause to arrest the defendant and Cabaniol existed before the search. See Commonwealth v. Mantinez, 44 Mass. App. Ct. 513, 515 (1998) (motion to suppress properly denied because probable cause existed before search). Contrary to the defendant's argument, the fact that Cabaniol was not arrested does not negate the probable cause to arrest before the police searched the defendant's backpack. The treatment of Cabaniol does not change the objective nature of the inquiry with regard to the defendant. "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." Commonwealth v. Gullick, 386 Mass. 278, 283 (1982), citing Beck v. Ohio, 379 U.S. 89, 91 (1964); Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
The inquiry into whether the facts and circumstances are sufficient to warrant probable cause is an objective one that can be made by the police officer before an arrest. This inquiry may include "factual and practical considerations of everyday life," Commonwealth v. Welch, 420 Mass. 646, 650 (1995), and "[r]easonable inferences and common knowledge," Commonwealth v. Alessio, 377 Mass. 76, 82 (1979). We must also "[be] mindful that we are dealing with probabilities." Welch, supra.
The Supreme Judicial Court has held that certain factors, when considered together, could establish probable cause that the defendant had engaged in a hand-to-hand drug transaction: (1) "the furtive actions of the participants"; (2) the location is "known to the police as a place of high incidence of drug traffic"; and (3) the witnessing of the event by an experienced officer, who "considered the event as revealing a drug sale." Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). See Commonwealth v. Kennedy, 426 Mass. 703, 708 (1998).
There is no requirement that an officer see an actual object or money exchanged or that the location of the transaction be a high crime area. Rather, an officer's knowledge of the involved parties' drug use, the defendant's reputation as a drug dealer, and the officer's observations of the defendant's interaction with others were sufficient to establish probable cause. See Santaliz, supra; Kennedy, supra.
The Commonwealth argues that four factors supported Officer LaForest's reasonable inference that a hand-to-hand drug transaction had occurred in this instance: (1) Officer LaForest knew Cabaniol as both a drug user and a drug dealer; (2) the defendant and Cabaniol acted furtively by walking away from the large group to conduct their transaction, after Cabaniol asked the defendant, "Do you have it?"; (3) the Great Barrington police received complaints from Cumberland Farms store employees and other individuals about the drug transactions and drug and alcohol use in the parking lot of the store; and (4) Officer LaForest believed that a drug transaction had occurred.
The Commonwealth has recognized that Officer LaForest is not as experienced in drug investigations as the officers in Santaliz and Kennedy. However, other factors, including Officer Finnerty's prior experience in dealing with Cabaniol for other drug-related activity, were sufficient to establish a reasonable inference that the defendant and Cabaniol were engaging in a hand-to-hand drug transaction.
Although Officer LaForest testified that he could not make out what, if anything, was exchanged between the defendant and Cabaniol, the Supreme Judicial Court has recognized that, "Given 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." Kennedy, supra at 711. Contrast Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011) (holding that no probable cause to arrest existed where officer did not observe defendant engaging in actual transaction and no parties involved in transaction were recognized as having history of drug-related activity).
When considered together, these factors created a reasonable inference that a hand-to-hand drug transaction had occurred. This reasonable inference was sufficient to establish probable cause to believe that a crime had been committed or was in the process of being committed before an arrest was made. The officers had probable cause to arrest and could have arrested the defendant before conducting the search of his backpack. Whether the facts and circumstances known to the officers at that time would be sufficient at trial under a reasonable doubt standard is a different matter.
We note that the Supreme Judicial Court stated that an officer's ability to identify participants in a "silent movie" exchange -- that is, a drug transaction where the officer could not hear the conversation -- was a critical factor in elevating the probable cause standard above the reasonable suspicion standard. Kennedy, supra at 708. Commonwealth v. Stewart, 469 Mass. 257, 262 (2014).
We conclude that, in light of the factors listed, there was probable cause to arrest the defendant before the search of the backpack. Therefore, the search was justified.
Order allowing motion to suppress reversed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 4, 2015.