When reviewing the disposition of a motion to suppress, "[w]e 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. Cabrera, 76 Mass. App. Ct. 341, 344 (2010) (quotation omitted).a. The stop. "Before considering whether the officers' actions in stopping the defendant were constitutionally permissible, we first identify the moment when the seizure occurred."

Touchette called for backup “because [the officers] were outnumbered,” and Smith told the defendant that the situation was making Smith nervous because “there's four of you and two of us.” See Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 349 (2010) (that officers were outnumbered during rapidly developing situation contributed to reasonable suspicion justifying patfrisk). These considerations may not add much, but they are relevant.

Id. at 482-483. See Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 348 (2010) ("We acknowledge that the case law often observes that the mere fact that drugs are involved does not support the view that guns or other weapons are present"). Accordingly, although we appreciate that "the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence," we do not agree with the Commonwealth's contention that "the fact that a person is inside the locus of a warranted search for evidence of drug dealing provides a sufficient and reasonable basis to believe that, prior to the police entry, said person possessed or had immediate access to a gun or other dangerous weapon," permitting the patfrisk of any occupant within.

These facts support a fair inference that a drug sale occurred in the Nissan. See Matta, 483 Mass. at 365, quoting Meneus, 476 Mass. at 236 ("combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief that a person has, is, or will commit a particular crime"); Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 346 (2010), citing DePeiza, 449 Mass. at 373 ("Viewed through the eyes of experienced police officers and as a whole, even seemingly innocent activities may take on a sinister cast and give rise to reasonable suspicion"). Further -- though only part of the larger holistic analysis -- the judge found that the police (1) made the observations above in an area known for recent and significant illegal drug activity, and (2) determined that these observations were consistent with illegal drug activity, per their training and experience.

Though police information regarding the defendant's possible drug dealing is relevant in our analysis, "case law often observes that the mere fact that drugs are involved does not support the view that guns or other weapons are present." Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 348, 921 N.E.2d 1026 (2010). See Commonwealth v. Washington, 449 Mass. 476, 482, 869 N.E.2d 605 (2007) ("we are reluctant to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes").

See Commonwealth v. Locke, 89 Mass. App. Ct. 497, 502, 51 N.E.3d 484 (2016) (defendant's statement that another individual rented vehicle did not contribute to reasonable suspicion of criminal activity); Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 471, 671 N.E.2d 515 (1996) (officer's knowledge that vehicle was rented by another individual did not support reasonable suspicion that defendant was engaged in drug-related activity). Contrast Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 346-347, 921 N.E.2d 1026 (2010) (officer's knowledge that vehicle was rented, coupled with defendant's evasive explanation as to ownership of vehicle, contributed to reasonable suspicion of drug-related activity). In addition, the verbal exchange between Schaaf and the vehicle's occupants occurred after the officers had already completed the purpose of the stop.

Such evidence, in conjunction with other factors, is probative of an involvement with drugs that is deeper than mere possession of marijuana. See Commonwealth v. Gonzalez, 452 Mass. 142, 144, 892 N.E.2d 255 (2008) (“scurrying” sounds within apartment); Commonwealth v. Watson, 430 Mass. 725, 728 & n. 10, 723 N.E.2d 501 (2000) (“Drug couriers use erratic driving to find out whether they are being followed”); Commonwealth v. Cabrera, 76 Mass.App.Ct. 341, 347, 921 N.E.2d 1026 (2010) (automobile maneuvers); Commonwealth v. Dise, 31 Mass.App.Ct. 701, 704–705, 583 N.E.2d 271 (1991) (same). The fact that no actual exchange was observed by police may weaken the Commonwealth's probable cause showing, but other factors may be sufficient to overcome the absence of such evidence.

August 3, 2010. Reported below: 76 Mass. App. Ct. 341 (2010). Mme. Justice Cowin did not participate.

However, our case law holds that, when accompanied by other evidence of a drug transaction, an out-of-State vehicle in an area known for drug activity may be considered in the totality of circumstances analysis. See, e.g., Commonwealth v. Alvarado, 93 Mass.App.Ct. 469, 471 (2018); Commonwealth v. "Cabrera, 76 Mass.App.Ct. 341, 346 (2010). Furthermore, the truck in the present case drove around a small geographic area for approximately an hour in a manner consistent with a planned meeting.

In the patfrisk context, "[a] reasonable apprehension of danger may arise from the type of crime being investigated," but the court has rejected any blanket rule that a drug crime is necessarily "a crime of violence, or one involving the possession or use of a dangerous weapon." Commonwealth v. Cabrera, 76 Mass.App.Ct. 341, 348 (2010).