Opinion
Nos. 06-986, 06-987, 06-988.
March 19, 2007.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS AND MOTIONS TO SUPPRESS STATEMENTS
INTRODUCTION
Defendants Joan Klement (Klement), Gary Rourke (Rourke), and Wilson Enrique Reyes (Reyes) (collectively Defendants) move to suppress illegal drugs including rocks, apparently of crack cocaine, found in a cupholder in their car, white rock and powder in a large plastic bag in clothes in the backseat, a finger of heroin found elsewhere in or on top of the car, and a pipe and mesh found in Rourke's pockets. Klement and Rourke move to suppress their statements to police. The court conducted an evidentiary hearing on February 16, 2007 and February 21, 2007 at which Lawrence Police Detectives William Pasquale Colantuoni (Colantuoni) and Carlos Cueva (Cueva) testified.
Finding that police lacked a reasonable and articulable suspicion justifying the stop, the court allows the motion to suppress.
FINDINGS OF FACT
Based on the evidence presented and reasonable inferences from the evidence, the court makes the following findings of fact:
1. On March 29, 2006, Lawrence Police Detective Colantuoni was an experienced drug investigator who had made numerous drug arrests in the Lower Tower Hill section of Lawrence. He knew this to be a high drug-crime area and a drug source area, and he knew that the practice of middlemen brokering purchases of illegal narcotics was employed there.
On the issues of importance to this motion the court credits the testimony of Colantuoni.
2. At about 7:30 P.M., while plain-clothed and in an unmarked police car, he drove to the Lower Tower Hill area to look for drug activity. He saw a silver Pontiac with Maine plates. He knew that buyers come from northern New England to Lawrence to purchase drugs and he had personally arrested people doing so. There were three people in the silver Pontiac, which he followed.
3. He lost sight of the Pontiac for a few minutes. When he found it, it made a U-turn, and followed the minivan. There were now two people in the Pontiac. He called a second police officer to help; he was also plain-clothed and drove an unmarked car.
4. With both officers following, the minivan and Pontiac went to Common Street. As they approached a fish market, a man walked out and flagged down the minivan. It immediately slowed and pulled up to him. The Pontiac pulled to the side of the road ahead of the minivan and waited. The man went to the passenger side window, leaned in, making contact with the minivan and appeared to speak to the occupants. The encounter lasted a matter of seconds. Police did not see an exchange. The man re-entered the fish market, the front passenger of the minivan re-entered the Pontiac, and the minivan pulled away.
5. Colantuoni followed the minivan, lost it and the second officer followed the Pontiac. After abandoning the search for the minivan, Colantuoni pulled some 50 yards behind the second officer who was following the Pontiac. As he was gaining on the second officer, Colantuoni asked him, by radio, to stop the Pontiac.
6. The second officer activated the blue lights of his unmarked car and pulled the Pontiac over. As the second officer got ready to get out of his car, Colantuoni pulled in behind him. While the police cars were equipped with blue lights, they were typical of unmarked cars in that the blue lights were less prominent than those on marked police cruisers. From the vantage point of the Pontiac, the second police car was only minimally visible because it was blocked by the first police car.
7. With the second officer staying behind to monitor the situation, Colantuoni approached the driver's side and spoke with the driver Klement. Colantuoni asked her where she was going and coming from. She replied that she was just leaving town. Colantuoni asked if she had stopped anywhere. She said that she had not and asked if she could call her brother. She was nervous, a little shaky and looking back and forth.
8. Colantuoni asked her to step from the car and to the rear, and to put her hands on the car. Police then asked Reyes and Rourke to get out of the car and to put their hands on the car.
9. Colantuoni searched Rourke and found, in his pockets, a pipe and mesh, both of which he knew were used to consume illegal drugs. Colantuoni searched the car and found rocks of what appeared to be illegal narcotics in a cupholder and a paper bag containing a large plastic bag with white rock and powder in some clothing in the rear of the Pontiac. Police also found what appeared to be a finger of heroin wrapped in electrical tape.
10. As Colantuoni, who was an experienced police officer, arrested Klement he provided her with complete Miranda warnings. He advised her that she had the right to remain silent, that anything she said could and would be used against her in court, that she had a right to talk to a lawyer, that if she could not afford a lawyer one would be provided to her, and that she could stop questioning at any time to speak to a lawyer.
11. At the Lawrence police station he advised her of her rights from a preprinted form which included her right to remain silent, that anything she said could and would be used against her in court, that she had the right to talk to a lawyer for advice before police asked any questions and to have an attorney present during questioning, and that she could have an attorney appointed to represent her if she could not afford one. Colantuoni also advised her that she had the right to stop questioning and asked whether she understood the rights and wished to speak with him.
12. Colantuoni read the form to Klement because she said she was unable to read the form because she did not have her reading glasses.
13. Klement was not unusually upset, suffering from mental or physical illness or otherwise in physical or emotional distress other than that normal in a person under arrest for a serious criminal offense. She did not appear to be confused and she did not request an attorney. She understood her Miranda rights and waived them.
14. She denied knowing of the alleged drug transaction.
15. Police advised Rourke of the same rights from a very similar form. Finding of fact #11 is incorporated by reference. Rourke was not emotionally or physically upset. He was not suffering from any kind of mental illness, was not confused and did not request an attorney. He understood the rights he waived.
16. He told police, in substance, that he was paid in cocaine for picking up an individual known as Ricardo in Worcester, driving him to Lawrence to pick up drugs and returning him to Worcester.
DISCUSSION
THE LEGAL STANDARD
An officer may stop a vehicle in order to conduct a threshold inquiry if he has reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime. Commonwealth v.Wren, 391 Mass. 705, 707 (1984). The officer's suspicion must be based on specific articulable facts and reasonable inferences drawn from the facts. Id.
The standard is objective: would the facts available to the officer at the moment of the seizure or the search, warrant a person of reasonable caution in the belief that the action taken was appropriate.Commonwealth v. Mercado, 422 Mass. 367, 369 (1996) (citations and quotations omitted). "Reasonable suspicion cannot be based on a hunch or on good faith, but . . . seemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry."Commonwealth v. Watson, 430 Mass. 725, 729 (2000).
The facts in this case are similar to the facts inCommonwealth v. Clark, 65 Mass. App. Ct. 39 (2005), furth. app. rev. den., 446 Mass. 1101 (2006). In Clark, police saw the defendant exchanging a small package for cash in an area known for high drug activity. The Appeals Court held that the officer had an insufficient basis to conduct an investigatory stop because he had no information that a drug sale was to occur at that particular location at the time and the defendant was not known to police to be a drug dealer or drug user. Clark, 65 Mass. App. Ct. at 44.
Similarly, Colantuoni saw the defendants involved in what was likely to be some kind of rendevous in a high-drug and high-crime area. However, police did not have information that a drug sale was about to take place at that location, and they did not know the defendants to have been involved in prior drug deals. Police did not know the man outside of the fish market, nor did they see an exchange of objects or money. Like in Clark, police only saw what they believed was a transaction in a high crime area. Presence in a high crime area is not sufficient to give rise to reasonable suspicion. Commonwealth v.Cheek, 413 Mass. 492, 497 (1992).
Here, an experienced drug investigator who had made numerous arrests in the Lower Tower Hill area of Lawrence, known to be a high crime, high drug area and a drug source area, saw a silver Pontiac with Maine license plates and decided to follow it. After initially losing sight of the car, police found it and saw the Pontiac apparently following a minivan. Police also saw a man standing outside a fish market signal to the minivan, which immediately slowed and pulled over. The man approached the passenger side of the minivan, leaned in and appeared to speak with the occupants. Police did not see an exchange of money or goods. The man returned to the fish market, the front passenger of the minivan got out of the car and got into the Pontiac that was waiting in front of the minivan, and both cars drove off. Police followed both cars, activated their blue lights, and stopped the Pontiac.
Commonwealth v. Smith, 55 Mass. App. Ct. 569 (2002), is also helpful. In Smith, a police officer saw the defendant standing with an older male and female in the middle of downtown Brockton in the afternoon. The group then went to an alleyway. Id. at 573. Police saw one man place his hand into his pocket. Id. at 571. Believing that some sort of drug transaction was about to occur, the officer identified himself as a police officer and asked what they were doing there. Id. The defendant rode away on his bike, the officer caught up to him and there was a struggle. Id. During the fight, the officer found a white substance that turned out to be cocaine. Id.
The Appeals Court held that the officer did not have an objectively reasonable suspicion that the defendant was engaging in criminal activity based on the circumstances. Id. at 573. The court noted that the officer did not observe an actual transaction or furtive activity on the part of the defendant, nor was the defendant a known drug dealer, and "in the absence of these or any other additional circumstances suggesting that criminal activity might be afoot, [the officer] did not have an objectively reasonable suspicion that the defendant was engaging in, or was about to engage in, criminal activity at the time he stopped the defendant." Id.
In Commonwealth v. Sweezey, 50 Mass. App. Ct. 48 (2000), furth. app. rev. den., 432 Mass. 1111, the Appeals Court upheld denial of the motion to suppress where police had specific articulable facts supporting reasonable suspicion of ongoing criminality to justify the stop.Id. at 52. In Sweezey, police saw passengers of a Monte Carlo signal to the defendant by flashing its car lights, in an area known for high drug activity. Id. at 49. The defendant got out of his car, approached the Monte Carlo, leaned in the driver's side window and engaged in conversation. Id. The defendant returned to his car carrying a paper bag and drove away. Id. The Appeals Court held that "the actions they observed — the apparent signal to the defendant in an area known for high drug activity, combined with the defendant following the Monte Carlo, interacting with its occupants, and then returning to his car carrying a paper bag — viewed in the light of common sense and the officers' experience, constitute specific articulable facts supporting a reasonable suspicion of ongoing criminality." Id. at 52.
In Clark, the court held that police did not have a sufficient basis to conduct the stop where police saw a package exchanged for money because police did not have information that a drug sale was about to occur, nor was the defendant known to police to be a drug dealer or drug user.Clark, 65 Mass. App. Ct. at 44. In Smith, the court held that police did not have a sufficient basis to justify the stop where police saw a man place his hands in his pocket in a high crime are because police did not see a transaction, and the defendant was not a known drug dealer. Smith, 55 Mass. App Ct. 573. In Sweezey, the court held that police had sufficient basis to conduct the stop where a signal to the defendant in an area known for high drug activity, combined with the defendant interacting with passengers of the second car and returning to his car carrying a paper bag, gave police reasonable suspicion of ongoing criminal activity. Sweezey, 50 Mass. App. Ct. at 52.
Here, police saw a car with out-of-state license plates and a minivan in an area known to be a high drug-crime area. Police knew that the practice of middlemen brokering purchases of illegal narcotics was employed in the area, as well as the practice of northern New England drug buyers coming to Lawrence to buy drugs. Police saw a man flag down the minivan, approach the passenger window, lean in, and appear to speak to the occupants. Police did not see an exchange, did not know that a drug sale was to occur at this location, did not see packages consistent with drug packaging (or packages of any kind), and did not know that the defendant or other persons involved were drug dealers or users.
The stop, although made by conscientious police with the best of intentions, was based on a hunch. Police lacked the reasonable suspicion necessary to stop the Pontiac.
ORDER
The Defendants Joan Klement, Gary Rourke and Wilson Enrique Reyes' motions to suppress evidence are ALLOWED as to all physical evidence seized by police and observations made by police. The statements of the Defendants are suppressed as fruit of the poisonous tree.
Given the result, the court does not decide the motions to suppress statements, however, the court has made the necessary findings of fact should it become necessary to do so.