Opinion
15-P-176
03-23-2016
COMMONWEALTH v. ADAM GARVEY.
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
This is an interlocutory appeal by the defendant, Adam Garvey, from an order denying his motion to suppress evidence seized by the Tewksbury police during a search of his vehicle. The defendant is charged with unlawful possession of a Class D substance, to wit, marijuana and conspiracy to violate the drug laws. Following an evidentiary hearing, the judge made findings of fact and rulings of law, and denied the motion to suppress. We affirm, albeit for different reasons.
Background. The judge heard testimony from two members of the Tewksbury police department, Detective Brian O'Neill and Detective Lieutenant Ryan Columbus. On July 9, 2013, Detective O'Neill was conducting stationary surveillance in an unmarked vehicle in a mini-mart parking lot in the area of Route 133 and Andover Street in Tewksbury. He was an eight-year veteran of the department with experience as an undercover officer and specialized training in drug investigations. The location was an area in which the officers regularly made arrests for drug offenses. He observed a person, later identified as Allesandro Maccanico, who was driving a Nissan sedan, enter the parking lot and park his vehicle two spaces away from the location of Detective O'Neill's vehicle. Detective O'Neill observed Maccanico using his cellular telephone for ten to fifteen minutes. Detective O'Neill next observed the defendant, who was operating a Ford Edge sport utility vehicle, enter the parking lot and park his vehicle between the unmarked police vehicle and Maccanico's Nissan. The two men acknowledged each other's presence with a nod and then entered the mini-mart. They emerged together a few minutes later. Maccanico followed the defendant to his vehicle. The defendant sat in the driver's seat while Maccanico sat in the front passenger seat. Detective O'Neill observed Maccanico reach into his pocket and hand something to the defendant.
Believing that a hand-to-hand drug transaction had taken place, the two officers approached the defendant's vehicle. Detective Columbus approached the defendant as he sat in the driver's seat and ordered him to remain in the vehicle. At the same time, Detective O'Neill approached the passenger, Maccanico, who was now standing outside the vehicle. Detective O'Neill ordered Maccanico to step to the rear of the defendant's vehicle. Suddenly and without any questioning or prompting by Detective O'Neill, Maccanico remarked, "I don't do this, I'm only doing this to make extra money. I only sell weed." This statement was relayed to Detective Columbus, who ordered the defendant to step out of his vehicle. A subsequent search of the vehicle at the scene by the officers resulted in the seizure of two ounces of marijuana.
Discussion. 1. Standard of review. We accept the judge's subsidiary findings of fact unless they are clearly erroneous. See Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). We give substantial deference to the judge's ultimate findings and rulings. See Commonwealth v. Eckert, 431 Mass. 591, 593 (2000). However, we independently review the correctness of the judge's application of constitutional principles to the facts as found. See Commonwealth v. Kaupp, 453 Mass. 102, 105 (2009).
2. Attenuation of the taint. "The exclusionary rule is a remedy to an illegal search; its purpose is to deter police misconduct and preserve judicial integrity by dissociating courts from unlawful conduct." Commonwealth v. Nelson, 460 Mass. 564, 570-571 (2011). We apply the exclusionary rule in circumstances in which the evidence seized by the police was tainted by a prior search or seizure that was unlawful. The question is "whether . . . the evidence . . . has been come at by exploitation of [that] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quotation omitted). See Commonwealth v. Nickerson, 79 Mass. App. Ct. 642, 647-648 (2011); Commonwealth v. Lunden, 87 Mass. App. Ct. 823, 826 (2015).
The motion judge ruled that the police lacked justification for a threshold inquiry of the defendant, but nevertheless concluded that the exclusionary rule should not be applied. The judge may have relied implicitly on the attenuation of the taint doctrine which we discuss in the text. In any case, we may uphold the judge's decision based on a different legal theory than the one on which the judge may have relied. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
The attenuation doctrine applies even though, as in this case, an initial illegal seizure is the but-for cause of subsequent incriminating statements which, in turn, are essential to establish probable cause. See Commonwealth v. Damiano, 444 Mass. 444, 453-454 (2005). The burden of establishing that the evidence seized by the police was not tainted by the primary illegality rests with the Commonwealth. Commonwealth v. Estabrook, 472 Mass. 852, 865 (2015).
Although the fact that the seizure of the evidence from the defendant's vehicle was close in time to the unlawful detention of the defendant and Maccanico, the temporal proximity of the two events is of little significance in this case in view of the unforeseeable nature of Maccanico's statements.
The fact that Maccanico and the defendant may have been illegally detained when the intervening event occurred does not disqualify it as an independent act for purposes of the doctrine of attenuation of the taint. This is illustrated by our recent decision in Commonwealth v. Komnenus, 87 Mass. App. Ct. 587, 592-593 (2015) (even though police entry into defendant's apartment was unlawful, spontaneous admissions later made by defendant could be used to establish probable cause). In the present case, as in Komnenus, the judge found that Maccanico acted independently. He was not interrogated or otherwise induced to speak by the police.
The final consideration in applying the attenuation of the taint doctrine is whether the police conduct that is not in conformance with the law was flagrant or purposeful. Here, even if we assume, as the judge ruled, that the police lacked the authority to detain the defendant and Maccanico for a threshold inquiry when they first approached the defendant's vehicle, we would describe it as a close question. There is no evidence in the record that the police anticipated that Maccanico would make admissions when Detective O'Neill asked him to step to the rear of the defendant's vehicle or that the brief detention of the defendant was simply a pretext to enable the police to conduct an unlawful search. As in Commonwealth v. Ocasio, 71 Mass. App. Ct. 304, 310 (2008), "there was no evidence whatsoever of coercion, trickery or deceit."
Conclusion. For the above reasons, the order denying the defendant's motion to suppress is affirmed.
So ordered.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 23, 2016.