Opinion
No. 1995-00762.
December 29, 2005.
MEMORANDUM AND ORDER
1. Introduction. Based on the credible evidence presented at the hearing, I make the following findings of fact and rulings of law.
2. Findings of Fact. On August 8, 1995 Worcester police officer Larry Williams was on duty, assigned to surveillance as a part of a Worcester Police Vice Squad task force. The focus of the task force was street narcotics violations. On the day in question, Officer Williams had one year of experience, almost exclusively in this unit, which included over 50 narcotic drug investigations.
On this particular day of surveillance, Officer Williams was assigned duties in the area of #2 and #4 Clement Street, Worcester. He was in a hidden location, which provided him with the ability to observe street activity. He had binoculars and maintained radio communication with other officers who were in position to move to the area or follow individuals leaving the surveillance area if and when necessary.
At 5:15 pm, Williams observed a group of males gather at #2 and #4 Clement Street, near the Main Street intersection. The police had received numerous complaints about drug activity in this location and made numerous arrests for drug offenses. Williams saw a white Thunderbird, containing two individuals approach from Main Street. The driver would later be identified as the defendant, Ramon Valerio, and the passenger as Lenin Valerio. An individual already in the area of observation stepped forward and approached the Thunderbird. From his vantage point, Officer Williams saw movement from within the Thunderbird and what appeared to be an exchange of something between the individual on the passenger side of the vehicle and the one who approached from the street. He was not able to directly observe what was exchanged. Based on his training, Officer Williams concluded that he had just witnessed a hand-to-hand exchange of narcotic drugs.
The group that had been located on the street moved away, in direction of a nearby building and the two individuals inside the Thunderbird drove away from the scene. It was at this point that Officer Williams radioed to other officers. Away from the surveillance location, Thomas Coakley, along with his partner, Heriberto Arroyo, received the radio notification followed by the appearance of a white Thunderbird matching the description.
Officer Coakley had been a member of the Worcester Police Department for 5 years, and had dealt extensively in street narcotics. Acting on Officer Williams's radioed message, Officer Coakley and his partner responded by pulling over the white Thunderbird in their police uniforms and marked police cruiser on Florence Street.
The white Thunderbird contained two occupants. The defendant, Ramon Valerio was the driver and Lenin Valerio, the passenger. Lenin made a movement forward and down. Seeing this movement and concerned for his safety, Officer Coakley ordered Lenin to step out of the vehicle. Coakley proceeded to pat and frisk Lenin, but did not discover any weapons or contraband. Meanwhile, Arroyo did the same to the defendant and had the same result.
From outside of the vehicle, Coakley observed a closed box of clear plastic sandwich bags in the rear passenger compartment of the Thunderbird and an opened box of sandwich bags where Lenin had been seated. Based on this observation, the radioed message from Officer Williams, and his experience, Officer Coakley suspected the vehicle contained narcotic drugs.
A conversation was overheard by Officer Coakley between Officer Arroyo and the defendant in which Arroyo appeared to ask permission to search the vehicle. Although the conversation involved the use of both the English and Spanish languages, Officer Coakley, through his limited understanding of the Spanish language, expressed the opinion that consent to search the Thunderbird had been given by the defendant. Officer Arroyo did not testify at the hearing on the Defendant's motion to suppress.
The Search of the passenger compartment disclosed no contraband. However, behind the door to the gas cap, located on the outside of the vehicle, the officers discovered what appeared and later was determined to be cocaine, a Class B substance. The gas cap was of the ability to be opened without the necessity of a key. During the course of the episode, the police made no record of any motor vehicle infraction by the defendant.
3. Rulings of Law — A. Investigatory Stop. Searches conducted with out a warrant are presumed to be unreasonable, placing the burden on the Commonwealth to show that the search was permissible. See Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974). "An investigatory stop of a motor vehicle is justified when the police have `a reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom,' that a vehicle occupant `had committed, was committing, or was about to commit a crime.'" Commonwealth v. Haskell, 438 Mass. 790, 793 (2003), quoting Commonwealth v. Alvarado, 427 Mass. 277, 280-281 (1998). See also Terry v. Ohio, 392 U.S. 1 (1968).
In the present case, Officer Williams witnessed what appeared to be an exchange between an individual on the street and the passenger of the defendant's car. Although the item or items involved in the exchange were not directly seen by Officer Williams, based on his experience, the location, and all other surrounding circumstances, he was justified in concluding that he had witnessed a hand-to-hand exchange of drugs. See Commonwealth v. Kennedy, 426 Mass. 703, 711 (1998) ("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.").
Based upon Officer Williams's justifiable conclusion that the occupants of the white Thunderbird had just taken part in a hand-to-hand exchange of drugs, it was reasonable for Officer Coakley and Officer Arroyo to stop the defendant's vehicle and conduct a threshold inquiry.
3-B. Exit Order. Art. 14 of the Declaration of Rights of the Massachusetts Constitution requires that, "a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle." Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999). Although the requisite test disqualifies a hunch as not being sufficient, "it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, and, if the basis is there, a court will uphold the order." Id. at 664.
Coakley witnessed the passenger make a movement in a forward and downward direction. Having pulled the vehicle over under suspicion for involvement in a narcotic drug exchange, Officer Coakley had a reasonable suspicion of danger due to this unexplained movement by the passenger and was justified in ordering the passenger to exit.
3-C. Probable Cause. Although Officer Coakley's investigatory stop of the defendant was justifiable, the search resulting in the subsequent discovery of cocaine inside the gas cap of the automobile "was a seizure requiring "probable cause and a warrant or exigent circumstances justifying the lack of a warrant.'" Commonwealth v. Sergienko, 399 Mass. 291, 296 (1987), quoting Commonwealth v. Ortiz, 376 Mass. 349, 353 (1978). When probable cause is based on observations by a police officer of what appears to be criminal activity, the standard is the same under both state and federal law. Probable cause "merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief,' that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742 (1983), quoting Carroll v. United States, 267 U.S. 132, 162 (1925). Accord Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992).
The police have only limited authority to conduct a search incident to a threshold inquiry and following an exit order in order to protect themselves from the risk that the person who has been detained will obtain a weapon. See Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001). The interior of the gas cap does not fall within the interior of the vehicle, nor can it be said that a passenger of the vehicle would be able to gain possession of a weapon from this location. For these reasons, the search resulting in discovery of cocaine within the gas cap of the white Thunderbird cannot be said to have been sufficiently limited in scope and thus, it cannot be justified as a protective search incident to the exit order.
In the present case, during the course of the investigatory stop, Officer Coakley observed a closed box of sandwich bags located in the rear, passenger compartment of the vehicle and an opened box of the sandwich bags in the front, passenger compartment. Based on his training and experience as a police officer, Officer Coakley was aware that bags, similar in nature, are often utilized by members of the narcotic drug trade for purposes of packaging narcotics. However, sandwich bags, as evidenced by their name, are also used for regular, everyday purposes, by regular, everyday people.
In Commonwealth v. Santaliz, 413 Mass. 238 (1992), the court considered four factors in deciding that probable cause existed:
(1) the unusual nature of the transaction Y; (2) the furtive actions of the participants Y; (3) the encounter occurs in a place known to the police as a place of high incidence of drug traffic; and (4) an experienced officer on the scene, who had made numerous drug arrests in the neighborhood, considered the event as revealing a drug sale accomplished by the defendant with the aid of [another].
Id. at 241. All four of these factors exist, to some degree, in the case at bar.
The defendant was involved in an unusual transaction, which included a group of individuals waiting outside #2 and #4 Clement Street. The defendant approached the group in a vehicle, as if by pre-arrangement, a quick exchange took place, and the defendant and his passenger exited the scene by car and the group on the street dispersed on foot.
Although, the actions of the defendant and street participants do not rise to the level of furtiveness present in Santaliz, their actions were unusual and could be regarded by an experienced police officer as suspicious and consistent with a hand to hand drug transaction. In Kennedy, the court found "that there [was] no direct support in the record to characterize the gestures [of the transaction] as "furtive.'" Commonwealth v. Kennedy, 426 Mass. at 707. However, the court added that
"There was no testimony on how quickly Morales reached into the vehicle. The officer testified that after the reaching activity, Morales walked away and the vehicle drove off. We think the record is sufficient to support an inference that the entire sequence of events transpired quickly. We agree that there is no direct support in the record to characterize the gestures as `furtive,' except in so far as furtiveness may be inferred from the quickness of the interaction." Commonwealth v. Kennedy, 426 Mass. at 707.
While we have not endorsed the judge's finding of furtiveness, the quickness of the interaction between [the individual on the street] and [the defendant] reasonably could be interpreted by the officer as suspicious conduct, similar to the suspicious conduct of the "furtive" transaction observed in the Santaliz case.
Id. at 708-709.
The transaction involving the defendant occurred in a location where the police had received numerous complaints about drug activity and had made numerous arrests for drug offenses. In fact, it is the location in which this officer had been working and making arrests. In addition, Officer Williams could apply the experience he gained from his assignment and training to attach significance to events that would appear to the untrained and unschooled eye as mundane or non-suspicious.
Although facts in the present case are not precisely like those present in Santaliz and Kennedy, they are sufficiently close to the facts in those cases to establish probable cause. Contrast Commonwealth v. Clark, 65 Mass. App. Ct. 39 (2005) (`part from the fact that the general area was known to be a high crime area, there [was] nothing in [the] record to suggest the officer had any specific information suggesting that a drug sale was likely to occur at this location" and "the officer did not suspect that criminal activity was afoot due to any furtive or unusual movements by the defendant or anyone else that interacted with him'.").
In the present case, after observing what appeared to be a hand-to-hand exchange contraband, making a stop of the vehicle involved in the transaction, and issuing the exit order, Officer Coakley observed sandwich bags in the back and front seat of the vehicle. Through his experience, Officer Coakley was aware that these types of bags are often used to package drugs. This additional element, considered along with the other elements noted above established probable cause for a search of the vehicle.
This is not a case in which the Commonwealth claims that probable cause exists simply on the basis of the presence of an item that could be used for packaging drugs. Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 651-652 (1993) ("Benign objects such as spoons, mirrors, and straws are often used in the narcotic trade. To allow police officers, experienced in narcotics investigations, to conduct a warrantless search whenever they observe one of the above items, and nothing more, would permit random searches, which are condemned by the Fourth Amendment and the Declaration of Rights."). Here, the police had observed other facts that brought the case close to meeting the threshold for probable cause before they observed the plastic baggies. Cf. Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 43 (1989) ("identification of [a] baggie in the person's possession and evasive reaction by him — readily cumulate to provide probable cause.").
ORDER
For the foregoing reasons, the defendant's Motion to Suppress is hereby DENIED.