Opinion
No. 12–P–376.
2013-03-21
COMMONWEALTH v. Andrew ALICIA.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance of the defendant's motion to suppress physical evidence. The Commonwealth contends that motion judge erred in ruling that the police lacked the requisite reasonable suspicion or probable cause to stop the defendant's vehicle.
The defendant was charged with possession of a class D substance with the intent to distribute (G.L. c. 94C, § 32C); drug violation near a school or park (G.L. c. 94C, § 32J); possession of a firearm without a license (G.L. c. 269, § 10[ a ] ); possession of ammunition without a license (G.L. c. 269, § 10[ h ] ); and possession of a loaded firearm (G.L. c. 269, § 10[ n ] ).
I. Motion to suppress. We summarize the findings of the motion judge, which are supplemented by uncontested facts adduced at the suppression hearing to provide context. See Commonwealth v. DePeiza, 449 Mass. 367, 368 (2007). On November 5, 2010, at approximately 7:30 P.M., Sergeant Detective Duggan instructed Officers Byrne
and Mahoney to observe Aibun Eng, an alleged participant in illegal drug trades. Eng was observed talking on a cell phone, looking around the street and entering a vehicle driven by the defendant, Andrew Alicia; Eng possessed a large black bag. The car drove into a school parking garage that cannot be viewed from street level. After five minutes, the defendant dropped off Eng at his car; however, the large black bag remained in the defendant's possession. Officers Byrne and Mahoney followed the defendant in an unmarked cruiser and managed to overtake the defendant's car. The officers purposely stalled the defendant by not proceeding through a green light in order for a marked cruiser to catch up to the defendant's vehicle. The defendant attempted to go around the unmarked police vehicle at the next traffic control signal. (Officer Byrne testified that the defendant ran through a red light.
While not mentioned in the judge's findings, it is clear that Officer Byrne has substantial experience in undercover operations, including purchasing and observing narcotic transactions.
) The marked cruiser activated its lights and the defendant pulled over. With guns drawn, the officers approached and read the defendant his Miranda rights. The defendant acknowledged that he was in possession of narcotics and a firearm. He was subsequently arrested and his vehicle was searched. At the suppression hearing, the motion judge allowed the defendant's motion to suppress the evidence.
The motion judge did not credit the officers' testimony pertaining to the traffic violation.
The Commonwealth's first argument on appeal is that the motion judge's factual findings were unsupported by the evidence. Specifically, the Commonwealth alleges that reliance on the defendant's affidavit and the police report was clear error. The reviewing court must “accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing.” Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). “The clear error standard is a very limited form of review [and][w]here there has been conflicting testimony as to a particular event or series of events, a judge's resolution of such conflicting testimony invariably will be accepted.” Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), quoting from Commonwealth v. Spagnolo, 17 Mass.App.Ct. 516, 517–518 (1984).
We discern no error in the motion judge's findings of fact, as they were based primarily on testimony given at the suppression hearing. The motion judge determined that a traffic violation did not occur. The fact that a citation was issued and entered in evidence does not automatically mean that the infraction transpired. “Questions of credibility are the province of the motion judge who had the opportunity to observe the witnesses.” Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). The motion judge focused primarily on the police report's failure to mention the stalling tactic, even though Officer Byrne testified about it during the evidentiary hearing. It is within the judge's discretion as a fact-finder to believe all, some, or none of a witness's testimony. We will not second-guess such credibility determinations on appeal.
II. Validity of the stop. “A police officer may stop a vehicle in order to conduct a threshold inquiry if he has a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime.” Commonwealth v. Wren, 391 Mass. 705, 707 (1984). Reasonable suspicion “must be ‘based on specific, articulable facts and reasonable inferences therefrom’ rather than on a ‘hunch.’ “ Commonwealth v. Lyons, 409 Mass. 16, 19 (1990) (internal citations omitted).
In the instant case, the Commonwealth argues the legitimacy of the stop was based on the officers' observations of the defendant and Eng which included traveling from the main street to a vacant school parking lot, meeting for approximately five minutes and the apparent transfer of a large black duffel bag.
In addition, the substantial training and experience of the officers, in combination with previously conducted narcotics and firearms investigations and arrests in this particular neighborhood, are further factors to support the officers' reasonable suspicion. Such “specific, articulable facts and reasonable inferences [drawn] therefrom” support a basis for reasonable suspicion. Commonwealth v. Scott, 440 Mass. 642, 646 (2004) (citations omitted).
Specifically, Officer Byrne testified that “we believed a street-level drug transaction had occurred, based on the meaningless ride around the block, the concealment within that parking lot where we'd seen neither person leave the parking lot on foot, and then the short drive around the block, we believed a street-level drug transaction had occurred and we decided to stop the black Lincoln to further investigate.”
Notwithstanding the factors above, the motion judge opined that the officers lacked reasonable suspicion, much less probable cause, to justify the threshold inquiry. The motion judge noted that the officers purposefully stalled the defendant's vehicle, approached with their guns drawn, immediately read the defendant his Miranda rights, and provided no independent basis to support their belief that the defendant possessed a firearm. See and compare Commonwealth v. Washington, 449 Mass. 476, 482–483 (2007) (while suspicion of drug activity is relevant in the assessment of police safety, that alone is not sufficient to create an objectively reasonable suspicion that someone is armed and dangerous). The Commonwealth specifically requested that the judge disregard the officers' previous knowledge of Eng and the defendant. As such, the motion judge rejected the meaningless ride theory. Comparing the interaction between the defendant and Eng to that of acquaintances, the judge concluded that the officers acted on a mere hunch. We disagree.
“[S]eemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry.” Commonwealth v. Sykes, 449 Mass. 308, 314 (2007), quoting from Commonwealth v. Grandison, 433 Mass. 135, 139 (2001). In Commonwealth v. Santaliz, 413 Mass. 238, 242 (1992), the Supreme Judicial Court held that the facts and circumstances known to an officer should not be reviewed in isolation; rather the court must look at “the whole silent movie” through the eyes of an experienced officer. Although the issue is close, we conclude that, based on the totality of the circumstances, there was sufficient evidence for the officers to form reasonable suspicion. See Commonwealth v. Stephens, 451 Mass. 370, 384–385 (2008) (reasonable suspicion found where officer observed the defendant follow the “precise script of the typical illegal narcotic transaction”).
By the defendant's own admission during the threshold inquiry, the officers' reasonable suspicion was elevated to probable cause. “Probable 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.” Commonwealth v. Stephens, 451 Mass. at 385, quoting from Commonwealth v. Santaliz, 413 Mass. at 241. The defendant was read his Miranda rights before Officer Mahoney began questioning him. The defendant openly admitted to possessing drugs and a firearm in the vehicle.
Troubling, however, is the manner in which the police proceeded to stop the defendant and the lack of candor in the police report. We think the motion judge could properly refuse to believe that a traffic violation occurred. On cross-examination, Officer Byrne testified that he purposely stalled the defendant's vehicle. Once detained, the officers asked no questions pertaining to the defendant's license or registration, a normal practice during a routine traffic stop. See Commonwealth v. Torres, 40 Mass.App.Ct. 6, 9 (1996) (routine traffic stop must end on the production of a valid license and registration unless the police have grounds for inferring that “either the operator or his passengers were involved in the commission of a crime ... or engaged in other suspicious conduct”), S. C., 424 Mass. 153 (1997). It is clear that this was not a routine traffic stop; thus, the level of intrusion needed to be proportional to the officers' suspicion of drug activity. Commonwealth v. Moses, 408 Mass. 136, 141–142 (1990). The line of questioning was permissible; however, the attempt to mischaracterize and distort the chain of events in the police report is not appropriate, and we strongly condemn such objectionable conduct.
III. Warrantless search of vehicle. We need only briefly discuss the warrantless search of the defendant's vehicle. See Commonwealth v. White, 422 Mass. 487, 496 (1996). There must be a belief that “a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances [to] make obtaining a warrant impracticable.” Commonwealth v. Cast, 407 Mass. 891, 901 (1990), citing Carroll v. United States, 267 U.S. 132, 149 (1925). The defendant's affirmative admission of possession of a firearm and narcotics in the vehicle gave rise to probable cause.
Order allowing motion to suppress reversed.