Opinion
19-P-739
11-04-2020
COMMONWEALTH v. Robert ORTIZ-MATOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant, Robert Ortiz-Matos, was convicted of one count of trafficking in cocaine, one hundred grams or more, in violation of G. L. c. 94C, § 32E (b ) ; and one count of possession with intent to distribute a class A substance, in violation of G. L. c. 94C, § 32 (a ). On appeal, the defendant argues, first, that the motion judge erred in denying his motion to suppress evidence seized as a result of a motor vehicle stop; and, second, that the Commonwealth's evidence was insufficient to prove, beyond a reasonable doubt, that the defendant possessed the drugs that were the basis for his conviction. For the reasons that follow, we affirm.
Background -- motion to suppress. The motion judge made findings of fact in a thoughtful and thorough memorandum of decision and we rely upon those findings, supplemented by undisputed testimony that he explicitly or implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, (2015). On the evening of December 28, 2016, Massachusetts State Police Troopers Jason Conant and Lawrence Richardson, both members of the State Police Gang Unit and experienced drug investigators, were patrolling the north side of Lawrence in an unmarked police cruiser. At about 6:15 P.M. , Conant observed a red Ford Explorer that he had seen driving in the same area approximately five times earlier that evening. This observation, combined with the troopers' past experience and knowledge of drug activity in that area, caused them to become suspicious.
The motion judge explicitly "found both testifying officers to be credible in all material respects."
Richardson testified that he had been involved in hundreds of narcotics related investigations in that area.
The troopers followed the Explorer and performed a license inquiry on the cruiser's computer and learned that the Explorer was registered to a woman, the registration was active and valid, and the vehicle had not been reported stolen. Shortly afterwards, the troopers observed the Explorer make a right turn without a directional signal. Conant activated the cruiser's flashing lights to initiate a stop for the traffic violation. The Explorer did not pull over or reduce its speed. Conant activated the cruiser's sirens, and, apparently in response, the Explorer swerved to the left and then back to the right. "It crossed the left westbound lane as well as the single oncoming eastbound lane, and it came to within inches of striking the eastbound curb." The driver then stopped at a green light in the middle of an intersection before finally pulling over. When Richardson approached the passenger side of the vehicle, he observed the defendant sitting askew, with his back and buttocks pressed against the front passenger door and window. In Richardson's opinion, the defendant appeared extremely nervous and his left hand was shaking uncontrollably; Richardson testified that it appeared to him that the defendant was hiding something. Based on those observations, Richardson asked the defendant to get out of the Explorer, and the defendant complied. Richardson then conducted a patfrisk of the defendant's clothing for weapons. In four or five separate pockets of the defendant's jacket and jeans, Richardson felt what he believed to be folded wads of money; the defendant then volunteered, "It's just money." Richardson either removed the money or directed the defendant to remove it.
Richardson noted that the cash totaled approximately $3,500. He asked the defendant the reason he had so much cash, but the defendant did not offer an explanation. The motion judge concluded that, while Richardson was justified in conducting a patfrisk of the defendant and in concluding that the contents of his pockets likely contained cash, withdrawing the money at that point was "impermissible." For that reason, "in assessing the propriety of the continued detention of the defendants as the troopers called for a K-9 officer and dog, [the motion judge did] not consider ... the ensuing exchange between Trooper Richardson and Ortiz-Matos."
At the same time, Conant was engaged with the driver, codefendant Helmin Sanchez. Sanchez produced a valid driver's license, but spoke limited English. In response to Conant's questioning, Sanchez explained that the Explorer belonged to an "amiga of his." Despite the valid license, Conant concluded that the defendant and driver were using the Explorer for drug activity. Conant formed that opinion based on his observations that the Explorer was registered to a third party; the inside of the vehicle contained no personal belongings; and Sanchez was using a single key. At some point, Conant directed Sanchez to get out of the Explorer, and Sanchez complied.
The defendant joined Sanchez's motion to suppress; according to the defendant's brief, Sanchez "has fled the jurisdiction of the court."
Based on the troopers' collective observations, they decided to call for a K-9 officer with a drug detecting dog to conduct a K-9 search of the Explorer. The K-9 officer and dog arrived within one minute of the call. The subsequent search uncovered significant quantities of cocaine and heroin hidden under the defendant's seat; these drugs are the subject of the motion to suppress.
The defendant was detained a total of about twenty minutes prior to the K-9 call.
The eighteen packages in the bank bag contained a total of 191.72 grams of cocaine and 14.97 grams of heroin. The defendant stipulated to the admission of the drug certificates.
The motion judge noted in a footnote, "The parties advised the court at the outset of the suppression hearing that, although the defendants each challenged the propriety of the car stop, the subsequent exit orders and pat frisks, and the duration of their detention, neither challenged the dog search. No evidence was therefore presented as to that search or its results. The court assumes that it ultimately resulted in the discovery and seizure of quantities of cocaine and heroin, as reflected in the two indictments."
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Discussion. 1. Motion to suppress. On appeal, the defendant first contends that the motion judge, who was not the trial judge, erred in denying the motion to suppress. He argues that the exit order was improper because it was not supported by a reasonable concern for the safety of the troopers or other persons, or by reasonable suspicion that the defendant was engaged in criminal activity.
In reviewing a ruling on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). "We review independently the application of constitutional principles to the facts found." Commonwealth v. Ferreira, 481 Mass. 641, 653 (2019), quoting Wilson, supra.
An exit order to a passenger in a vehicle may be justified in three ways. "First, ... if ‘a reasonably prudent [person] in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.’ " Commonwealth v. Cruz, 459 Mass. 459, 466 (2011), citing Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999). "Second, the officers could have developed reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver." Cruz, supra. "Third, the officers could have ordered the defendant out of the car for pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement." Id. at 467. The Supreme Judicial Court recently has reiterated this standard for an exit order in Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020).
Here, the totality of the circumstances, viewed objectively, not only supports the troopers' reasonable belief that their safety, and the safety of others, was in danger, but also a reasonable belief that criminal behavior, separate from the traffic violation, was taking place and required further police investigation. See Commonwealth v. Torres, 433 Mass. 669, 673-674 (2001).
First, Richardson's observations of the defendant raised an objectively reasonable safety concern. Specifically, Richardson immediately, and reasonably, became concerned for his safety when the defendant turned his body to the left, sitting askew with his buttocks against the door and window, and shielding his hands and body from the trooper's view as if he were hiding something. See Commonwealth v. Johnson, 454 Mass. 159, 164 (2009), quoting Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005) ("Strange, furtive, or suspicious behavior or movements can infuse otherwise innocent activity with an incriminating aspect"). Furthermore, while not sufficient on their own, the defendant's nervous appearance and shaking hand "may contribute to reasonable suspicion when considered in the totality of the circumstances of the encounter." Commonwealth v. Nunez, 70 Mass. App. Ct. 752, 755 (2007). See Johnson, supra, quoting Terry v. Ohio, 392 U.S. 1, 27 (1968) ("The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger").
Given all of these facts, Richardson also was justified in conducting a patfrisk of the defendant. The court's recent holding in Torres-Pagan does not compel a contrary conclusion. In that case, "the defendant's actions did not indicate that he was armed and dangerous. He made no furtive movements; he already had gotten out of his vehicle and could not use it as a weapon; his body was fully visible to the officers; he was fully compliant with all commands issued by the officers; and he was outnumbered." Torres-Pagan, 484 Mass. at 41. The court upheld the allowance of the defendant's motion to suppress, saying, "A lawful patfrisk, however, requires more [than a lawful exit order]; that is, police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous. See [ Commonwealth v.] Martin, 457 Mass. [14,] 19 [ (2010) ]." Torres-Pagan, supra at 38-39.
Here, by contrast, the officer reasonably concluded that the defendant was hiding something that he had been sitting on or near and that conclusion, under all of the circumstances, led him to have at least a reasonable suspicion that the defendant was armed and dangerous. The motion judge made his ruling before the Supreme Judicial Court clarified the standard for a patfrisk in Torres-Pagan. Nonetheless, the judge correctly articulated that standard when he concluded:
"The subsequent pat frisk of Ortiz-Matos was likewise permissible. To justify a pat frisk in the course of an otherwise legitimate Terry stop, the police must have specific information to support a reasonable belief that the suspect is armed and dangerous. See Commonwealth v. Silva , 366 Mass. 402, 405-406 (1974). Here, in addition to all of the observations the police had made up to the time of the car stop, Ortiz-Matos'[s] behavior when Trooper Richardson approached him after the stop was made, i.e., his apparent efforts to conceal something from view and his palpable nervousness, was sufficient to support such a belief. The fact that Trooper Richardson did not see any weapon on the seat or floor area of the Explorer after Ortiz-Matos alighted from it did not negate the reasonable possibility that, in pressing his back and buttocks against the passenger door in such an odd manner, he had been trying to prevent discovery of a weapon that was on his person rather than one that he had stowed under him or at his feet."
Further, beyond the safety concerns, the troopers' reasonable suspicion of the defendant's criminal activity also ripened during the encounter. Based on their knowledge and experience, the troopers were initially suspicious that the Explorer might be involved in criminal activity. Then, the troopers observed a traffic violation and properly initiated a vehicle stop, and the Explorer responded by failing to reduce its speed or pull over, driving very erratically. See Commonwealth v. Torres, 433 Mass. 669, 674 (2001), citing Commonwealth v. Egan, 12 Mass. App. Ct. 658, 661 (1981) (" ‘particularized suspicion’ that crime was in progress may be deduced from, among other factors, fact that car did not stop when signaled to do so and proceeded for another quarter mile").
In addition to the troopers' initial suspicion, the erratic driving prior to the stop, and the fact that the defendant was nervous and sitting askew, as if he were hiding something, Conant also inferred, from his experience and observations of the interior of the Explorer, that the defendant and driver were using the Explorer for drug activity. Specifically, Conant based that opinion on the facts that the Explorer was registered to a third party; the inside of the vehicle contained no personal belongings; and Sanchez was using a single key. See Commonwealth v. Kennedy, 426 Mass. 703, 705 n.2 (1998) ("While the actions might have been susceptible of other interpretations, including innocent ones, ... the conclusion drawn by the officer went well beyond a suspicion or a hunch"). See also Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 169 n.6 (2019) ("[The trooper] observed two sets of keys, one on the defendant's person and another in the ignition. Based upon [the trooper's] training and experience, he knew that vehicles used by drug couriers to transport drugs often only have the key to the vehicle in the ignition, and not the driver's house keys, for example, because the vehicles are passed from individual to individual throughout the drug courier organization").
We conclude that, based on the troopers' collective observations, prior to and during the encounter, the troopers had both safety concerns and reasonable suspicion that the defendant was engaged in illegal drug activity. See Commonwealth v. Bostock, 450 Mass. 616, 619 (2008) ("Where a police officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime, the officer may stop that person to conduct a threshold inquiry). See also Terry, 392 U.S. at 27, citing Brinegar v. United States, 338 U.S. 160, 174-176 (1949) ("in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience"). We are satisfied that there was no error in denying the motion to suppress.
2. Sufficiency of the evidence. The defendant also contends that the trial judge erred in denying his motion for a required finding because, he contends, the Commonwealth failed to establish that the defendant either possessed the drugs, or had the intent and ability to exercise dominion and control over the drugs.
In reviewing the sufficiency of the evidence, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018), quoting Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014).
"To sustain a conviction of trafficking [or possession with intent to distribute] ... under G. L. c. 94C, § 32E [or § 32 ], the Commonwealth must show that the defendant had ‘possession’ of the [contraband]" (citation omitted). Commonwealth v. Hernandez, 439 Mass. 688, 691 (2003). Possession may be actual or constructive. Id. Where constructive possession is at issue, the Commonwealth must show proof of "knowledge coupled with the ability and intention to exercise dominion and control" over the contraband. Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Although the presence of contraband in the same automobile as the defendant is insufficient by itself to prove possession, "[p]resence in the same vehicle supplemented by other incriminating evidence ... may suffice to show knowledge or intent to control." Commonwealth v. Sinforoso, 434 Mass. 320, 327 (2001), quoting Commonwealth v. Garcia, 409 Mass. 675, 687 (1991).
Here, the jury heard evidence that, upon approaching the vehicle, Richardson observed the defendant's movements and inferred that he was trying to hide something. Richardson further testified that the defendant appeared "extremely nervous" and that his left hand was "shaking uncontrollably." In addition, the jury heard that the defendant had large amounts of cash, between $3,400 and $3,500, in various denominations, ranging from one hundred dollar bills to twenties, folded up in "every pocket possible." The drugs were found in a bank bag, concealed in a hidden compartment, or "hide," located directly under the defendant's seat. See Commonwealth v. Gonzalez, 452 Mass. 142, 148-149 (2008) (large sum of money found on defendant coupled with close proximity to location where contraband hidden supported reasonable inference of ability and intention to exercise dominion and control over contraband). See also Commonwealth v. Frongillo (No.1), 66 Mass. App. Ct. 677, 683 n.13 (2006) ("we note that when the defendant is present at or near the scene where the contraband is found ... the behavior of the defendant generally provides a basis upon which the court determines whether there was sufficient evidence relating to possession, including evidence of consciousness of guilt revealed by suspicious movements or actions, attempted flight, and proximity to contraband in plain view or hidden").
Further, the bank bag holding the eighteen packets of drugs also contained a ledger with that day's date (the date of the seizure), listing all the packages in the bank bag. Richardson testified at trial, as he had at the motion hearing, that, when he started to pat frisk the defendant, the defendant volunteered, "It's just money."
A third trooper, Trooper O'Neil, testified as an expert witness regarding drug distribution in Lowell, Haverhill, and Lawrence, and the jury could have concluded from O'Neil's testimony that the entire situation was consistent with common practice. That is, "runners" would commonly be engaged to deliver drugs to an individual who had ordered them, and they did so in a vehicle that was registered to a third party and contained a hide. O'Neil explained that someone who was not part of that drug organization normally would not be permitted to accompany a runner on a delivery or to ride in a car with a hide. O'Neil also testified that someone working as a delivery person in such an organization typically would receive cash at each transaction, and "shove it in their pocket ... and then once that becomes full, they shove it in the other pocket, their jacket and their back pockets."
Viewed in the light most favorable to the Commonwealth, the evidence presented was sufficient to permit the jury to find that the defendant had knowledge of the presence of the contraband, along with both the ability and the intention to exercise control over it. See Brzezinski, 405 Mass. at 409-410. We see no error in denying the motion for a required finding.
Judgments affirmed.