Opinion
No. 15–P–985.
08-18-2016
COMMONWEALTH v. Shawn C. NICHOLS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with distribution of marijuana, subsequent offense, possession of marijuana with the intent to distribute, and operating a motor vehicle with a suspended license. He filed a motion to suppress, arguing that neither the exit order nor the patfrisk were justified, and therefore his statements and the incriminating items found on his person and in the vehicle that were the basis for the charge of possession with intent to distribute must be suppressed. After a hearing, a judge of the Boston Municipal Court allowed the motion. The Commonwealth sought leave from a single justice of the Supreme Judicial Court to pursue an interlocutory appeal, and the single justice allowed the application and directed the appeal to the Appeals Court.
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). Here, the motion judge issued oral findings and rulings on the record at the conclusion of the hearing; there are no written rulings or findings. The facts are not in dispute.
While it was still light out on September 6, 2014, two experienced Boston police officers, Nicholas Beliveau and Wayne Brown, both of whom had undergone specialized drug training and were assigned to the drug control unit, were undercover, patrolling the Fields Corner section of Boston. The police had received many complaints regarding drugs in the area, a neighborhood known for drug activity and an area in which the officers had made numerous drug arrests. The officers noticed a man, later identified as Kyle Brito, “on and off” his cellular telephone (cell phone) and looking around as if he were anticipating something and being directed to a particular location. Eventually a blue Volkswagen Passat driven by the defendant pulled up and stopped at the corner of Longfellow Street and Draper Street. Brito looked all around before approaching the vehicle. From about four to five car lengths away, the officers saw Brito reach into the window of the vehicle. The interaction lasted about twenty to thirty seconds, with Brito walking away from the Passat at its conclusion. Neither officer saw an exchange, but they believed a hand-to-hand drug transaction had just occurred. The officers watched Brito depart. They did not see him do anything suspicious with his hands after he departed. Beliveau acknowledged that neither the driver of the vehicle (the defendant) nor Brito was known to him, and there was no evidence Brown had any additional knowledge of either individual.
Beliveau testified he was traveling in the same vehicle as Brown, but Brown recalled that they were in separate vehicles. In any event, both officers testified they were approximately the same distance from the Passat and their descriptions of their observations were similar in all material respects.
Brown followed Brito on foot, while Beliveau followed the Passat in an unmarked police vehicle. Beliveau called for a marked cruiser to stop the Passat to investigate the suspected drug transaction. Officer Layden responded, stopped the Passat, and approached the vehicle. As he did so, he saw the defendant drop some money from his hand into the center console. Layden reported the observation to Beliveau, who was approaching the vehicle at about the same time. Beliveau ordered the defendant, who was in the driver's seat, to exit the vehicle so he could speak to him. Beliveau read the defendant his Miranda rights. The defendant acknowledged that he understood the rights because he had previously been arrested.
Beliveau, who had never lost sight of the defendant's vehicle after the interaction with Brito, asked the defendant where he was coming from and whether he had met anyone in the past several minutes. The defendant said he was coming from Adams Street and denied meeting up with anyone, responses that Beliveau testified were untrue. Beliveau asked the defendant whether he had anything “on him that he shouldn't have on him, any weapons or anything, and he stated no, he didn't.” The testimony suggests that Beliveau asked the question before he began to pat frisk the defendant. During the patfrisk Beliveau discovered a knife in the defendant's left front pocket. Beliveau handcuffed the defendant for safety and continued the patfrisk.
The defendant claims in his brief on appeal that Beliveau questioned him while Beliveau was conducting the patfrisk, but this assertion is contradicted by the record. Beliveau specifically testified that he ordered the defendant from the car so that he could question the defendant about his observations. Beliveau acknowledged that he had not seen an exchange and wanted to conduct this inquiry because “[a] lot of times when [people] lie right off the bat, then [ ... ] my suspicion is going to further [sic ].”
Another officer who had been running the defendant's name through the criminal justice information system reported to Beliveau, after the defendant had been handcuffed, that the defendant's driver's license had been suspended. Beliveau gave the defendant this information and explained his earlier observations, including the defendant's meeting with the white male on Draper Street, prompting the defendant to say that he had just given some “weed” to a friend, but that he did not get any money for it.
After the defendant was handcuffed, Beliveau discovered a twenty-five dollar plastic bag of marijuana in the right pocket of the defendant's sweatpants along with $820 during the continued patfrisk. Sometime after Beliveau discovered these items during the patfrisk, Brown contacted Beliveau to report the seizure of a bag of marijuana from Brito and Brito's admission that he had just bought the marijuana from the individual in the Passat. Beliveau testified that the defendant “was already in handcuffs [and] ... already going to be under arrest. He was going to go back to the station with driving without a license.” The distribution charge was added, and the defendant was transported to the police station. A search of the defendant's vehicle revealed ninety dollars in the center console that was also seized. Brito was released after Brown took down his information.
Discussion. The motion judge properly found that the officer had a reasonable suspicion to believe a drug transaction had taken place and was therefore justified in stopping the vehicle driven by the defendant. See Terry v. Ohio, 392 U.S. 1 (1968) ; Commonwealth v. Levy, 459 Mass. 1010 (2011) ; Commonwealth v. Stewart, 469 Mass. 257, 261 (2014). The judge erred, however, when he ruled that the exit order was unjustified on the ground that the police lacked any concern for their safety. Beliveau's order to the defendant to exit the vehicle so that Beliveau could speak with him was a reasonable measure to ensure that the defendant did not attempt to escape before the police could conduct a threshold inquiry. See Commonwealth v. Bostock, 450 Mass. 616 (2008) ; Commonwealth v. St. George, 89 Mass.App.Ct. 764, 767–768 (2016). Unlike the situation presented in a routine motor vehicle stop, and contrary to the judge's ruling, there is no additional requirement that an officer harbor a concern for his or her safety before issuing an exit order to facilitate the threshold inquiry.
The fact that an individual is suspected of drug involvement is insufficient, on its own, to justify the presumption that he is armed and dangerous. Commonwealth v. Washington, 449 Mass. 476, 482–483 (2007).
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The question we therefore must address in this appeal is whether the patfrisk and search of the vehicle were constitutionally justified. A patfrisk and search based on the principles enunciated in Terry v. Ohio, supra at 23–27, may only be performed where an officer reasonably believes the defendant is armed and dangerous. See, e.g., Commonwealth v. Amado, 474 Mass. 147, 152–153 (2016) ; Commonwealth v. Greenwood, 78 Mass. 611, 616 (2011). “A search for evidence as opposed to weapons is not authorized by Terry principles.” Commonwealth v. Santos, 65 Mass.App.Ct. 122, 125 (2005). See Commonwealth v. Amado, supra.
Here, Beliveau's testimony reflects that the defendant was at all times cooperative, he made no furtive gestures, he did not attempt to flee, nor was he hostile. When combined with the officer's suspicion that the defendant had been involved in a drug transaction and not a crime involving violence or a dangerous weapon, “these facts do not give rise to an articulable risk to officer safety.” Commonwealth v. Greenwood, supra at 617. See Commonwealth v. Washington, 449 Mass. 476, 483 (2007). Even the Commonwealth recognizes the dearth of evidence justifying a Terry-type patfrisk and argues instead that the search was incident to arrest justified by probable cause. See, e.g., Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). See also Commonwealth v. Washington, supra at 481 (search may precede formal arrest as long as it is roughly contemporaneous).
“[P]robable cause exists where ... the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual ... has committed or was committing an offense.” Commonwealth v. Santaliz, 413 Mass. at 241, quoting from Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). The central cases that the Commonwealth relies on, Commonwealth v. Freeman, 87 Mass.App.Ct. 448 (2015) ; Commonwealth v. Kennedy, 426 Mass. 703 (1998) ; and Commonwealth v. Stewart, 469 Mass. 257 (2014), are readily distinguishable from the case at bar. In Commonwealth v. Freeman, supra at 449–450, a police officer observed an unidentified man standing next to a known drug user as the two men counted paper money, before the unidentified man walked alone to a meeting with the defendant where “the two men stood in the middle of [the] [s]treet” and the officer saw “the unidentified man hand what appeared to be unfolded money to the defendant, who, in turn, passed an object, small enough to fit in the palm of a hand, to the unidentified man.” “In the Kennedy case, an experienced police officer saw, among other things, an exchange of items between two individuals at a specific intersection known for complaints about drug activity, and one of the individuals was known by the officer to have been arrested previously for selling drugs.” Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011), citing Commonwealth v. Kennedy, supra at 704–705. In both Commonwealth v. Kennedy, supra at 709–711, and Commonwealth v. Freeman, supra at 451–453, the court held that the evidence was sufficient to demonstrate probable cause. That was not the situation in Commonwealth v. Stewart, supra at 259–264, where a police officer watched the defendant lead three individuals down a street known for drug use, huddle briefly with them in a doorway, and then separate. The officer, who had a view of only “their upper torso area,” saw no exchange of any item nor any gesture between or among anyone in the group.
Here, the facts known to Beliveau at the time of the search are not as convincing as those in Freeman and Kennedy. Neither Beliveau nor Brown saw an actual exchange of any kind. Nor could the officers see into the vehicle the defendant was driving, and they reported no movement other than Brito's brief reach into the vehicle with one arm. While there is no requirement that police must witness the exchange of an object, such evidence “is an important piece of evidence that supports probable cause and its absence weakens the Commonwealth's probable cause showing.” Commonwealth v. Levy, 459 Mass. at 1011, quoting from Commonwealth v. Kennedy, supra at 711. To this calculus we add that neither the defendant nor Brito were recognized by either officer as having a history with illegal drugs. The evidence that showed that the meeting occurred in an area known for drug transactions, that the defendant was observed dropping money into the vehicle's center console, and that he lied about not having met Brito heightens the reasonable suspicion that he was involved in criminal activity, but adds no particularized proof that that activity was an illegal drug transaction. See, e.g., Commonwealth v. Stewart, 469 Mass. at 261, 264 ; Commonwealth v. Amado, 474 Mass. at 155. Contrast Commonwealth v. Bostock, 450 Mass. at 624–625. “The facts of this case fall short of those necessary to constitute probable cause.” Commonwealth v. Levy, supra at 1012. See Commonwealth v. Stewart, supra at 264.
The Commonwealth also challenges the suppression of the defendant's statements. The motion judge did not make any findings related to statements, but he allowed the defendant's motion to suppress in its entirety. The defendant's responses to Beliveau regarding where he was coming from, denying that he had met anyone, and denying that he had any weapons on him were given in response to a properly conducted threshold inquiry, after he had been advised of his Miranda warnings, and for the reasons noted above are admissible. In addition, the defendant's statement that he had just met up with a friend and given “him some weed” is similarly admissible. The record shows that the defendant volunteered this statement as part of a conversation in which Beliveau had just described his observations preceding the stop to the defendant and informed the defendant that his driver's license had been suspended. It is clear from this context that the statement was not derived from the improper patfrisk and is therefore admissible. See and compare Commonwealth v. Fredette, 396 Mass. 455, 459 (1985) ; Commonwealth v. McAfee, 63 Mass.App.Ct. 467, 481 (2005).
Conclusion. The portion of the order on the defendant's motion to suppress that suppresses the defendant's statements is reversed. The order is otherwise affirmed.
So ordered.