Opinion
14-P-881 14-P-882
06-04-2015
COMMONWEALTH v. GEORGE BRYSON (and a companion case).
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 defendants, George Bryson and Anthony J. Proia, bring interlocutory appeals challenging the denial of their motions to suppress. Bryson and Proia jointly brought motions to suppress below, and the motion judge held a single hearing and issued a single order denying both motions. Bryson and Proia brought separate appeals; the briefing by the defendants and the Commonwealth in each case, however, is substantially identical. The defendants argue that there was not the requisite reasonable suspicion to search either their respective persons or the interior of the vehicle they were in. We affirm.
A single justice of the Supreme Judicial Court allowed the defendants' petitions for interlocutory review.
Background. The defendants do not challenge the motion judge's subsidiary findings of fact, which we recount here. On August 27, 2012, at about 10:47 A.M., Officer Edward Tansey of the Lynn police department was off duty, dressed in plain clothes, and driving his personal vehicle home from the Lynn Division of the District Court Department when he saw a blue pickup truck parked in a handicapped space of a 7-Eleven convenience store at 3 Lynnfield Street in Lynn. Tansey parked in the lot and watched the operator of the truck on his cellular telephone. Tansey also observed him at one point get out of the vehicle, throw out trash, and reenter the vehicle. After about fifteen minutes, Tansey saw a black sport utility vehicle (SUV) park in the lot. The passenger of that SUV got out, opened the door to the 7-Eleven store, entered, and almost instantaneously turned around and left the store without purchasing anything. He then looked around and entered the front passenger seat of the blue truck.
On cross-examination, Tansey indicated that the truck was parked in the "yellow stripes," "right next to" the handicapped space that are "designated for wheelchair vans, ramps, stuff like that."
Tansey is a twenty-six-year veteran officer of the Lynn police. He has extensive training and hands-on experience in illegal drug cases, having made numerous arrests and applications for search warrants. This particular area was known to the officer for being a common site for illegal drug activity. Believing that a drug transaction was about to take place, Tansey left his vehicle and approached the blue truck. As he approached, he saw the men hunched over something. When the man sitting in the driver's seat, later identified as Anthony Proia, looked up at Tansey, Tansey called out, "Lynn police." "Proia [then] immediately moved his right hand down to his pocket," upon which Tansey opened the driver's side door and ordered Proia to step out of the vehicle. Tansey then began to pat frisk Proia. Meanwhile, Bryson, who was sitting in the passenger seat of the blue truck, began to "move around." The black SUV, containing a third person, was also still parked in the lot.
Tansey felt a hard object on Proia's person -- it turned out to be "a large amount" of cash -- approximately $5,000. Tansey directed Proia to the rear of the vehicle; he also asked Bryson to step out of the car. Tansey pat frisked Bryson and found another large sum of money. As Tansey spoke to Proia about the money and his suspicion of a drug transaction, "Bryson went back into the truck out of Tansey's view." Tansey ordered Bryson out of the truck again and now called for backup. When that backup came, Tansey "went to the passenger side of the vehicle where he [had] observed Bryson reenter the truck. Tansey observed two separate bags of Oxycodone with 100 pills each in the center console." Bryson and Proia were then placed in custody. Tansey searched the car further and found "loose oxycodones, a straw, and [a] razor in the center console."
Discussion. "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 the judge's ultimate findings and conclusions of law." Commonwealth v. Jessup, 471 Mass. 121, 129 (2015), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). The defendants argue that the judge erred in finding that the officer had a reasonable apprehension of his safety, and that therefore all of Tansey's subsequent searches were unjustified. We disagree.
The defendants do not argue that stopping them or the motor vehicle was not "lawful." See Commonwealth v. Santana, 420 Mass. 205, 212 (1995) ("When police are justified in stopping an automobile, they may, for their safety and the safety of the public, order the occupants to exit the automobile" [emphasis supplied]); Commonwealth v. Narcisse, 457 Mass. 1, 7 (2010), quoting from Arizona v. Johnson, 129 S. Ct. 781, 784 (2009) ("First, the investigatory stop must be lawful. . . . Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous" [emphasis supplied]). Nevertheless, as noted in footnote 5, infra, we hold that Tansey had a reasonable suspicion that Proia and Bryson were involved in a criminal drug transaction and, therefore, Tansey's seizures were lawful. See Narcisse, supra at 9.
Tansey reasonably believed the individuals were engaged in a drug transaction, and, more importantly, that in announcing "Lynn police," he was interrupting a drug deal. Proia's immediate reach for his pocket upon hearing police approach justified Tansey's exit order and belief that his "safety, or the safety of others, [was] in danger." Commonwealth v. Torres, 433 Mass. 669, 673 (2001). When Proia moved his hand to his pocket, Tansey, based on the circumstances, could have reasonably suspected that Proia was reaching for a weapon, and therefore that he (Tansey) was in danger. See, e.g., Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103 (1989) (passenger "reach[ed] into the well between the driver's and front passenger's seats"); Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 286-288 (2003) (driver made a "downward motion to the floor"); Commonwealth v. Nunez, 70 Mass. App. Ct. 752, 755 (2007) (defendant put hand back in pocket after officer directed defendant to keep hands in view). While there is no "blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous," "drug involvement certainly may be a relevant factor in assessment of threats to police safety . . . ." Commonwealth v. Washington, 449 Mass. 476, 482-483 (2007).
The 7-Eleven, where the cars parked, was a known site for drug activity. Proia parked in a handicapped space -- suggesting that he sought to spend only a short time there. The car was stationed there for fifteen minutes, and the driver was using his telephone and looking around. Bryson behaved in a manner that suggested he was not there to shop at the 7-Eleven. He got out of one car, entered the 7-Eleven but left without shopping, and then immediately entered the truck that was apparently waiting there by prearrangement. In addition, as Tansey approached, he observed both defendants hunched over in the vehicle, suggesting that they were secretly looking at something. See, e.g., Commonwealth v. Santaliz, 413 Mass. 238, 241-242 (1992); Commonwealth v. Kennedy, 426 Mass. 703, 708-709 (1998); Commonwealth v. Stephens, 451 Mass. 370, 384-385 (2008).
These factors and the additional evidence of an illegal drug transaction, i.e., the $5,000, lent support to Tansey's patfrisk of Bryson, who was observed "mov[ing] around" in the truck. See Commonwealth v. Pena, 69 Mass. App. Ct. 713, 719 (2007) (defendant "refus[ed] to sit still" and exhibited "erratic movement of his hands"). The reasonableness of Tansey's apprehension was bolstered by the fact that Tansey was outnumbered. See, e.g., Commonwealth v. Moses, 408 Mass. 136, 142 (1990); Commonwealth v. Feyenord, 445 Mass. 72, 76 (2005).
In addition, Bryson's return to the front of the car (after Tansey had ordered him to the back) and Bryson's leaning into the passenger compartment reinforced Tansey's fear for his safety, and justified the center console search to ensure that it was safe for him to permit the defendants back into the car. See Commonwealth v. Almeida, 373 Mass. 266, 272-273 (1977); Commonwealth v. Pena, supra; Commonwealth v. Myers, 82 Mass. App. Ct. 172, 177 (2012) ("Although the defendant sat in the back seat of [the officer's] cruiser after the patfrisk . . ., he could have returned to the vehicle and recovered a hidden weapon"). Finally, once the oxycodone pills were discovered, probable cause existed to arrest the defendants and search the vehicle. See Commonwealth v. Moses, 408 Mass. at 144. Accordingly, we affirm the judge's ruling as to both defendants.
Order denying Bryson's motion to suppress affirmed.
Order denying Proia's motion to suppress affirmed.
By the Court (Cohen, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 4, 2015.