Opinion
No. 11–P–1577.
2012-10-9
COMMONWEALTH v. Matthew MURRAY.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this interlocutory appeal, the Commonwealth challenges the allowance of the defendant's motion to suppress evidence seized without a warrant. In connection with a possible narcotics transaction, officers of the Boston police department stopped a motor vehicle in which the defendant was a passenger, searched the defendant's effects, and subsequently arrested him for various firearms offenses.
A judge of the West Roxbury Division of the Boston Municipal Court suppressed the fruits of this search (a loaded firearm) on the basis that the police lacked probable cause to search or arrest the defendant; she additionally concluded that the search had been conducted without valid consent. The Commonwealth contends the judge's decision to allow the motion was erroneous. As we conclude that there was probable cause for a stop of the motor vehicle and search of the defendant, or, alternatively, an arrest of the defendant and search incident to arrest, we reverse. “[W]here, as here, the search is without a warrant the burden of establishing its reasonableness is on the Commonwealth. In this case it was for the Commonwealth to show that probable cause existed and that the search was therefore proper under the rule of Carroll v. United States, 267 U.S. 132 (1925).” Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974). Once it has been established that a warrantless search has occurred,
The defendant is charged with unlawful possession of a firearm, G.L. c. 269, § 10( a ), carrying a loaded firearm, G.L. c. 269, § 10( h ), and unlawful possession of ammunition, G.L. c. 269, § 10( n ).
the Commonwealth has the burden to prove admissibility of the seized evidence, as coming within a recognized exception of the warrant requirement, by a preponderance of the evidence. See Nix v. Williams, 467 U.S. 431, 444 n. 5 (1984). See also Smith, Criminal Practice and Procedure § 24.86 (3d ed.2007), and Grasso and McEvoy, Suppression Matters under Massachusetts Law § 2–7(a)(2) (2011–2012). In reviewing a judge's action 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. Washington, 449 Mass. 476, 480 (2007), citing Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
The defendant “must bear the threshold burden of showing that a warrantless search or seizure occurred.” Commonwealth v. Bly, 448 Mass. 473, 490 (2007), citing Commonwealth v. D'Onofrio, 396 Mass. 711, 714–715 (1986). See Commonwealth v. Rodriguez, 456 Mass. 578, 590 n. 12 (2010) (“The defendant's burden on these motions to suppress is the burden under Mass.R.Crim.P. 13[a][2], as appearing in 442 Mass. 1516 [2004], i.e., to identify with particularity in a motion and affidavit the alleged seizure, the fruits at issue, and the causal connection between the seizure and the fruits.”) See also id. at 588.
First, the Commonwealth claims that the judge erred in failing to find that the defendant had voluntarily consented to a search at the bus stop wherein the officer observed the defendant with $2,000 cash on his person, and that statements offered during the encounter may be rightfully considered in the probable cause analysis justifying the subsequent stop and ultimate arrest of the defendant. The defendant contends otherwise; relying upon the finding of the motion judge discrediting Officer Harber's testimony, the defendant argues that the nature of the encounter between Harber and Greenwood and the defendant negate any claim that the search was voluntary.
Whether viewed as a finding of fact or a conclusion of law, we are persuaded of a basis to disturb the judge's determination that the defendant did not “voluntarily” consent to a search. Consequently, in analyzing for probable cause, we do not consider that the defendant possessed $2,000 in cash on his person.
We need not decide the issue posited by the Commonwealth that the judge's oral findings of fact made immediately upon the conclusion of an evidentiary hearing, specifically, that the defendant “agreed” to a search, should take priority over the judge's written findings issued months later, in particular, that: “[t]he Court does not credit Harber's testimony that Greenwood and Defendant voluntarily ‘consented’ to the search, based on the length of time of the encounter, its nature, the advisement of Miranda rights when not required and subsequent developments that included a second claim of a consented—to search which is also not credited.” While lengthy delays between evidentiary hearings and issuance of supplemental findings of fact are not encouraged, we consider the two sets of findings on the issue of consent to be neither mutually exclusive nor inconsistent.
While we note that the defendant neither sought suppression of the statement of his companion, Greenwood, at this encounter, nor argued against its inclusion in the probable cause analysis (see note 2, supra ), given the result we reach, we need not consider it.
The judge concluded, and the defendant here contends, that the evidence that properly may be considered in the probable cause calculus was insufficient to give police lawful justification for the search and seizure of the defendant and his belongings. As we conclude that the officers' stop of the pickup truck and warrantless search and seizure of the defendant's effects were with probable cause, we disagree.
“[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 from Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). The facts here that support the Commonwealth's claim of probable cause can be summarized as: observations of the defendant and his apparent companions, Greenwood and Bernard, at and away from the Walgreen's parking lot, a location known to the officers as a high drug area; the defendant's curious travel on foot when he and his companions met Rivera at the Bragdon Street residence; the defendant's evasive responses at the bus stop (prior to receiving Miranda warning) in which he denied having been with the men (other than Greenwood who was still with the defendant); the fact that Bernard admitted to their failed attempt to purchase drugs (see, e.g., Stephens, supra at 385–86 [statements obtained by police from the defendant and the codefendant added to the probable cause justifying the defendant's arrest] )
; the statement overheard between the defendant and Greenwood suggestive to the officers of their expectation of an imminent drug acquisition; and further observations of the defendant's curious travel, both on foot and in two vehicles, the former of short duration and the latter which took him to a residence where he entered and exited a short time later carrying an additional bag. In our view, what the officers had observed over the course of a couple of hours demonstrates that, at the moment of the stop of the vehicle and the search of the defendant, they acted upon the reasonable belief that the defendant had participated in a drug transaction. Moreover, whether probable cause was present is not determined or informed in hindsight, i.e., by evidence recovered in an eventual search, or not. “ ‘The substance of all definitions' of probable cause ‘is reasonable ground for belief.’ “ Commonwealth v. Vynorius, 369 Mass. 17, 23 (1975), quoting from Commonwealth v. Stewart, 358 Mass. 747, 749 (1971).
The defendant also neither raised nor argued whether police may properly consider Bernard's statement, given to police after having separated from the defendant and Greenwood, in connection with probable cause.
The defendant's reliance upon the lack of an observed exchange is misplaced. “Certainly whether the officer sees an object exchanged is an important piece of evidence that supports probable cause, and its absence weakens the Commonwealth's probable cause showing.” Commonwealth v. Kennedy, 426 Mass. 703, 711 (1998). For probable cause to believe that a drug transaction has been or is about to transpire, however, it is not necessary that an exchange, even of unidentified objects, be observed. “Given the practical consideration of the small size of packages of drugs, which are capable of being concealed within a closed hand, we would critically handicap law enforcement to require in every circumstance that an officer not only witness an apparent exchange, but also see what object was exchanged, before making a search incident to an arrest. Furthermore, were we to make a rule that one particular piece of evidence is an essential criterion to support probable cause, we are concerned that we might create an incentive for officers to shade their testimony as to the one piece of evidence required, in order to justify retroactively an arrest or search that may be well supported by other facts and circumstances.” Ibid.
In the present case, the officers' observations over the entire sequence of events warranted probable cause. In particular, the intention to purchase drugs expressed by a cohort lent context to the defendant's expressed exuberance that an acquisition was imminent, and the defendant's emergence from a building holding a bag that he did not have before entering the building a short time earlier, readily support an inference of an exchange of some sort that occurred within the building but out of the officers' sight. We are thus satisfied that, together with the other factors we have enumerated, these events and the inferences that reasonably flow from them are sufficient to overcome the officer's failure to actually see an exchange. Here, the stop and search of the defendant was justified since it was conducted with probable cause, whether considered either as a search upon probable cause and exigent circumstances, i.e., a motor vehicle search, or as an arrest and search incident thereto. See Commonwealth v. Stephens, 451 Mass. 370, 386 (2008).
The judge's finding that the officers lacked probable cause to conduct a search or arrest of the defendant was erroneous. Consequently, the allowance of the motion to suppress must be reversed.
Order allowing motion to suppress reversed.