Opinion
No. 15–P–1712.
11-04-2016
COMMONWEALTH v. Omar MOHAMED.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of possession of a class B substance with the intent to distribute, G.L. c. 94C, § 32A(a ). The Commonwealth's case relied almost entirely on evidence seized as a result of a stop of a vehicle in which the defendant was a passenger, which the defendant argues should have been suppressed. We agree that the defendant's motion to suppress should have been allowed, and therefore reverse.
A charge of distribution of a class B substance, G.L. c. 94C § 32A(a ), was dismissed before trial.
“When reviewing the denial of a suppression motion, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Gomes, 453 Mass. 506, 508–509 (2009). Police can only “make an investigatory stop ‘where suspicious conduct gives the officer reasonable ground to suspect that a person is committing, has committed, or is about to commit a crime.... We view the ‘facts and inferences underlying the officer's suspicion ... as a whole when assessing the reasonableness of his acts.’ “ Id. at 510–511 (citations omitted). Importantly, “reasonable suspicion may not be based merely on good faith or a hunch.” Id. at 511.
Neither party challenges the judge's determination that a seizure, in its constitutional sense, occurred at the moment the police stopped the vehicle in which the defendant was a passenger. Therefore, “[w]e evaluate the reasonableness of a police officer's conduct based on the information available to him at th[at] time, not on what we later learn to be true.” Commonwealth v. Porter P ., 456 Mass. 254, 270 (2010). In this case, as found by the motion judge, the evidence was that, on the evening in question, the drug control unit had a particular residential building in Dorchester under surveillance. The building had been the subject of numerous complaints and previous arrests for drug related activities, including people entering the building for no reason other than to conduct drug transactions. Around 5:15 P.M. on April 26, 2015, police observed a white Toyota Corolla arrive, driven by an individual (about whom the police had no information) in which the defendant was a passenger. Police did not recognize the defendant, nor did they have any information about him. According to police testimony, the defendant got out of the vehicle, got on his cell phone, and walked to the back of the building. The defendant tried to open the rear door, but the door was locked. He then got back on his cell phone and walked to the front door and entered the building. Three to five minutes later the officers observed the defendant exit the building and walk back to the vehicle. He entered the passenger seat of the vehicle and the car drove away. Although the police officers did not observe what occurred in the building, their training and experience led them to believe a drug sale had occurred and, on that basis, the officers followed, stopping the car shortly thereafter to conduct a “threshold inquiry.
The record does not show that this was a traffic stop.
The Commonwealth has candidly, and laudably, acknowledged that our cases have not previously found reasonable suspicion on such facts. The police did not witness any type of transaction. See Commonwealth v. Smith, 55 Mass.App.Ct. 569, 573 (2002) (no reasonable suspicion where officer “did not observe any actual transaction or furtive activity on the part of the defendant”). They did not observe the defendant to have anything in his possession suggesting contraband, either before or after he entered the apartment building. Contrast Commonwealth v. Sweezey, 50 Mass.App.Ct. 48, 51–52 (2000) (reasonable suspicion where, although police did not witness entire transaction, defendant left scene with paper bag he did not have upon arriving at location). The information about the building was as vague and unspecific as that characterizing a neighborhood as being a “high crime area.” See Commonwealth v. Grandison, 433 Mass. 135, 139 (2001) (“Just being in a high crime area is not enough to justify a stop”); Commonwealth v. Clark, 65 Mass.App.Ct. 39, 44 (2005) (stop not justified where no specific information that drug transaction would occur in that location, even though neighborhood was a known high crime area). We note also that the basis for the officers' knowledge about the building is unexplained, coming from unnamed persons at unknown times through unknown means.
The reliability and credibility of the informants' information was not challenged by the defendant, and was accepted by the motion judge. “A party's failure to raise a potential claim at his suppression hearing waives any appeal on that issue.” Commonwealth v. Mathis, 76 Mass.App.Ct. 366, 374 (2010).
Commonwealth v. Step hens, 451 Mass. 370 (2008), upon which the Commonwealth relies, is distinguishable. There, the police observed the defendant meet someone in a parking lot, speak with him, and then follow that individual to a more remote location. See id. at 373–374. Although the police did not observe a physical exchange of contraband, they did observe the outlines of a encounter that followed a “precise script” of past drug transactions in that location. Id. at 384. No similar observations were made here. The defendant was simply observed entering and then leaving a residential building known for drug activity.
Concluding as we do, we need not (and do not) decide the defendant's remaining two claims of error: that the evidence was insufficient to support his conviction, and that the police officer's testimony about the driver's statement was inadmissible hearsay.