Opinion
19-P-1162
07-24-2020
COMMONWEALTH v. ANGEL ARIAS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Angel Arias, entered a conditional guilty plea, see Commonwealth v. Gomez, 480 Mass. 240, 252 (2018), and Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499 (2019), to possession of a class B substance (fentanyl) with intent to distribute, G. L. c. 94C, § 32A (a), and possession of a class B substance (cocaine) with intent to distribute, G. L. c. 94C, § 32A (c). On appeal, he challenges the order denying his motion to suppress. We affirm.
Background. "We summarize the facts found by the motion judge following the evidentiary hearing, supplemented where necessary with undisputed testimony that was implicitly credited by the judge." Commonwealth v. Oliveira, 474 Mass. 10, 11 (2016). On February 27, 2017, a team of Norfolk police officers and State police troopers responded to a report of an unattended death at 154 Jefferson Drive. When the officers arrived at the residence, they found the body of Teresa Grosso and determined that she had died of an accidental narcotics overdose. The police recovered Grosso's cell phone and saw that her most recent text message was exchanged with a contact named "Rocky." Suspecting that Rocky was Grosso's narcotics dealer, Trooper Mark Farioli used her cell phone to impersonate Grosso and contact Rocky. When Rocky responded, Farioli texted, "Looking if u can hook me up." Rocky asked, "Hook u.up???" to which Farioli replied, "Yes. I got $100." Farioli was aware that $100 was the cost of one gram of heroin. Rocky answered, "Im omw," that is, "on my way." Farioli instructed Rocky, "Let me know when you close I'll come out."
Farioli had worked for the Massachusetts State Police since 2005 and was currently assigned to the Norfolk County District Attorney's narcotics unit.
Approximately forty minutes later, Rocky texted, "Here" to Grosso's cell phone. At this time, police monitoring Grosso's residence observed a sedan pass by, slow down, and turn. Less than one minute later the sedan returned and came to a stop in front of Grosso's driveway. Rocky attempted to call Grosso's cell phone multiple times. Farioli did not answer, but instead texted, "Sorry. Family over can't talk." Rocky replied, "Im.here" and "Wasup."
At this point several officers approached the vehicle and observed a single occupant, the defendant. The officers told the defendant to step out of the car. He did not comply, and the officers observed him shifting around in the driver's seat. The officers attempted to open the door, but it was locked and the windows were closed. The officers then yelled, "Police!" The defendant remained in the vehicle.
After the defendant refused to exit, the officers broke the driver's side window, removed the defendant from the car, and immediately handcuffed him. Inside the car the officers observed two cell phones and a wallet on the seat. Farioli texted Rocky's number from Grosso's cell phone and saw one of the defendant's cell phones activate, signaling it had received the text message. The police seized the two cell phones and the wallet, which contained the defendant's identification. The officers placed the defendant under arrest and brought him to the Norfolk police station. They searched the defendant's person during booking and found a tinfoil package in his sweatshirt pocket containing two small baggies, one containing fentanyl, and the other containing cocaine.
Discussion. The defendant contends that the judge erred in denying his motion to suppress because the police lacked the necessary justification to order him out of his vehicle, to forcefully extract him from the vehicle, or to arrest him. In reviewing the denial of a motion to suppress, we accept the judge's findings of fact absent clear error. Commonwealth v. Clark, 65 Mass. App. Ct. 39, 43 (2005). We independently review the judge's ultimate findings and conclusions of law. Id.
1. Exit order. The defendant argues that the officers lacked reasonable suspicion to order him out of his vehicle. "A police officer may 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.'" Commonwealth v. Gomes, 453 Mass. 506, 510-511 (2009), quoting Commonwealth v. Wilson, 441 Mass. 390, 394 (2004). "[A]n exit order is justified . . . where . . . [the] police have reasonable suspicion of criminal activity." Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). Reasonable suspicion must be based on "specific, articulable facts and reasonable inferences drawn therefrom. A hunch will not suffice." Commonwealth v. Barreto, 483 Mass. 716, 720 (2019), quoting Commonwealth v. Wren, 391 Mass. 705, 707 (1984).
In his decision addressing the defendant's motion to suppress, the judge found that the police had reasonable suspicion of criminal activity. We agree. A woman had died of an opioid overdose. The last person she had contacted was the defendant. When the police officers impersonated the decedent and texted the defendant to supply more heroin, he promptly responded by text, then appeared at her driveway forty minutes later -- without being told the address. While the defendant is able to construct innocent explanations consistent with his behavior, the most likely explanation is that he appeared at Grosso's residence to provide her with more opioids. Indeed, as soon as the defendant received a text that he believed to be from Grosso stating that she had $100, enough money to pay for one gram of heroin, the defendant answered, "on my way." We agree with the judge that when the police first approached the defendant in his car, they already had ample reasonable suspicion of criminal activity to order him out of his vehicle to conduct a threshold inquiry.
2. Arrest. The defendant argues that even if the officers had reasonable suspicion to order him out of the car, they did not have probable cause to arrest him. "[P]robable 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. 370, 385 (2008), quoting Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). "In dealing with probable cause . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act." Commonwealth v. Jordan, 91 Mass. App. Ct. 743, 748 (2017), quoting Commonwealth v. Hason, 387 Mass. 169, 174 (1982).
"Probable cause may be established where the 'silent movie' observed by an experienced narcotics investigator reveals 'a sequence of activity consistent with a drug sale.'" Commonwealth v. Stewart, 469 Mass. 257, 262 (2014), quoting Santaliz, 413 Mass. at 242. Rather uniquely, in this case the "silent movie" observed by the officers had subtitles: the text messages exchanged between Farioli and the defendant.
The "silent movie" showed police officers responding to Grosso's overdose death, finding that the last text on her cell phone was exchanged with "Rocky." An officer then arranged to purchase drugs from Rocky through an exchange of text messages, which caused the defendant to drive by the residence, text his presence, and stop in front of the driveway. As already noted, at this juncture the police had at least reasonable suspicion to believe that the defendant had arrived with the intent to sell Grosso more heroin. If this evidence did not already amount to probable cause, the consciousness of guilt the defendant showed by shifting around inside his car and refusing to comply with the officers' valid exit order completed the picture. See Commonwealth v. Santa Maria, 97 Mass. App. Ct. 490, 496 (2020) (failure to comply with valid exit order relevant in establishing probable cause to arrest). See also Commonwealth v. Warren, 475 Mass. 530, 538-539 (2016) (evasive conduct relevant when combined with individualized suspicion and when suspect is under obligation to respond to police inquiry); Commonwealth v. Delaney, 442 Mass. 604, 611 (2004) (failure to comply with lawful order admissible to show consciousness of guilt). Thus, at the moment the police forcibly removed the defendant from his car, they had probable cause to arrest him.
Accordingly, we do not consider the evidence obtained after the defendant was apprehended, specifically, that the police confirmed his identity as Rocky when Farioli texted Rocky again and one of the cell phones on the seat of the defendant's car activated. Even before that confirmation, there was little doubt that the defendant and Rocky were one and the same. And because we conclude that there was probable cause to arrest, we need not determine whether something less than probable cause would have justified breaking the window as a "proportional" response to the defendant's failure to comply with the exit order. See Commonwealth v. Sinforoso, 434 Mass. 320, 323-324 (2001).
The defendant's final contention is that even if the officers had probable cause at the time of the arrest, probable cause dissipated when they searched his person and did not find any drugs. As an initial matter, there was no evidence produced at the hearing on the motion to suppress, and the judge did not find, that the police searched the defendant at the scene of the arrest before transporting him to the station for booking. The only evidence in the record that such a search occurred was contained in the defendant's affidavit filed in support of his motion for reconsideration after the evidentiary hearing. Even assuming that such a search did occur, whether the police had probable cause to arrest does not depend on the results of a search made afterwards. "In determining whether probable cause to arrest exists, the inquiry focuses on what the police knew at the time, not on whether subsequent events or discoveries proved the police right or wrong. Otherwise put, a fruitful search will no more justify an arrest made without probable cause than a fruitless search will invalidate an arrest made with probable cause" (citation omitted). Commonwealth v. Kotlyarevskiy, 59 Mass. App. Ct. 240, 245 (2003).
Judgments affirmed.
By the Court (Rubin, Milkey & Massing, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 24, 2020.