Opinion
No. 15–P–1291.
10-31-2016
COMMONWEALTH v. David GALLANT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an interlocutory appeal by the Commonwealth from the allowance of the defendant's motion to suppress evidence. The defendant is charged with possession with intent to distribute a Class C (G.L. c. 94C, § 32B ), and a Class E (G.L. c. 94C, § 32D ) controlled substance. The judge reasoned that the police officers were warranted in inferring that they had witnessed a hand-to-hand transaction, but concluded that the facts were not sufficient to permit the inference that the transaction involved the distribution of drugs. Because we conclude that a critically important finding of fact lacks any basis in the evidence, and that otherwise the facts compare favorably with Commonwealth v. Santaliz, 413 Mass. 238 (1992), we reverse.
Background. Officer Adam DiPerri was the sole witness who testified at the motion to suppress. Based on his testimony, the judge found that on June 14, 2012, Officer DiPerri, an eight-year veteran of the Boston police department, was working a plainclothes assignment in the Worcester Square area of Boston near Harrison Avenue. Officer DiPerri and his supervisor, Sergeant Taxter, were responding to a 911 call regarding a Hispanic male, wearing a gold Bruins hat and grey sweatpants, who was reportedly dealing drugs in the area. That area of the neighborhood was known to them as a high-crime area where drug transactions frequently occurred.
At approximately 10:15 A.M., Officer DiPerri observed a Hispanic male matching the description from the 911 call, later identified as Edgar Rodriguez, walking in the vicinity of Worcester Square. Officer DiPerri observed Rodriguez meet with a white female and a white male, later identified as the defendant, David Gallant. Rodriguez placed a call on his cellular telephone (cell phone), after which the female and the defendant sat down on the steps of a building, with Rodriguez standing in front of them. Officer DiPerri then observed the defendant open his backpack and pull out an unidentified item, while Rodriguez stood in front of him with his hands held out holding what appeared to be several “open napkins.” The defendant began placing “items one at a time” into the napkins held by Rodriguez. The defendant then stood up and placed an item inside the back of his pants. Soon after, another male, later identified as Dennis Doherty, who was described as “a familiar face” in that area, and whom Officer DiPerri had arrested in the past, approached the group. Doherty and Rodriguez together went into a nearby convenience store, where they remained for less than one minute, while the defendant remained outside.
Officer DiPerri and Sergeant Taxter then radioed for additional officers to assist them, as they intended to speak to the individuals. Officer DiPerri approached Rodriguez and Doherty as they exited the store, informed them that he was a police officer, and stated that he believed they had just engaged in a drug transaction. Doherty responded that he had “already swallowed the pills.” Rodriguez had what appeared to be napkins sticking out of his sweatshirt pocket, and when questioned about them, responded by pulling the napkins out and stating, “Look, look, there's nothing in there.” After he spoke with Doherty and Rodriguez, Officer DiPerri spoke with Officer Burton, who by that time had arrived on scene and searched the defendant. Officer Burton informed him that he had found approximately 100 unidentified pills inside a cell phone case on the defendant's belt. The defendant was arrested and brought to the booking area, where a further search of his person revealed a prescription pill bottle containing more pills located “[i]n his underwear, near his buttocks area.”
Discussion. 1. Standard of review. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). “A finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
2. The judge's factual findings. The Commonwealth argues that two of the judge's factual findings are clearly erroneous, specifically (1) that the defendant “was taking items from the napkin ... [and] was placing items in the napkins”; and (2) that “Officer Burton searched [the defendant] prior to Officer DiPerri's interaction with Rodriguez and Doherty.” We agree with the Commonwealth that the judge's finding that the defendant was both placing items into the napkins and taking items from the napkins is not supported by the evidence, and thus is clearly erroneous. There is nothing in Officer DiPerri's testimony to indicate that the defendant took items from the napkins. In response to the Commonwealth's question, Officer DiPerri stated,
The hearing on the defendant's motion to suppress was conducted on July 12, 2013, and the judge allowed the motion on October 3, 2013. The judge did not publish the written findings at issue here until April 21, 2015, in response to the Commonwealth's request for written findings and rulings for use in this appeal.
“A: As I said, Mr. Rodriguez had his hands open, with napkins in it, and I observed [the defendant] taking items one at a time, placing them into the napkins that Mr. Rodriguez was holding out.”
Later, when the judge asked Officer DiPerri if he could “tell whether [the defendant] was placing something or taking something,” Officer DiPerri responded, “It looked like he was placing something .”
A closer question is presented with respect to the judge's finding that the defendant was searched prior to Officer DiPerri's interaction with Doherty. Officer DiPerri testified that when Rodriguez and Doherty exited the convenience store, he approached them and identified himself as a police officer. Doherty responded by stating that “he already swallowed the pills.” Officer DiPerri testified further that his next move was to speak to Rodriguez, who had napkins sticking out of his pocket. Following this conversation, Officer DiPerri testified he was approached by Officer Burton, who had searched the defendant and seized a number of pills from a cell phone case that was on the defendant's belt. Officer DiPerri later testified that he “was talking with Mr. Rodriguez at the time of that search [of the defendant].” Asked if, by the time he got to the defendant, Officer Burton had already searched him, Officer DiPerri answered, “Yes.” Finally, Officer DiPerri explained that he believed Officer Burton “might have just been arriving [on the scene]” as he was approaching Doherty and Rodriguez.
The testimony by Officer DiPerri does not pinpoint the exact moment that the defendant was searched in relation to Officer DiPerri's interaction with Doherty and Rodriguez. The testimony could be considered to suggest that Officer Burton's search of the defendant occurred simultaneously with Officer DiPerri's conversation with Rodriguez and Doherty. However, because we conclude that Officer DiPerri had probable cause to detain and search the defendant prior to any search conducted by Officer Burton, we will assume that the judge's finding was that Officer Burton searched the defendant and recovered some pills before Doherty made his statement about having swallowed the pills.
3. Probable cause. Probable cause exists if the factors known at the moment of arrest would “warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Santaliz, 413 Mass. at 241, quoting from Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). In Santaliz, the court noted four factors that when taken together support an officer's belief that there was probable cause: “(1) the unusual nature of the transaction ...; (2) the furtive actions of the participants”; (3) the occurrence of the encounter in a place known to the police for a “high incidence of drug traffic”; and (4) the opinion of an experienced narcotics officer that a drug transaction had taken place. Stantaliz, supra. The absence of one factor does not mean probable cause was lacking; we must look “at the whole ‘silent movie’ disclosed to the eyes of an experienced narcotics investigator.” Commonwealth v. Kennedy, 426 Mass. 703, 708 (1998), quoting from Santaliz, supra at 242.
As to the first Santaliz factor, it was reasonable for Officer DiPerri to believe that the scene he witnessed was unusual. He observed Rodriguez, who matched the description of a 911 call reporting a man dealing drugs, meeting on the street with the defendant and a female. Rodriguez made a call on his cell phone. The defendant took an item out of his backpack, and proceeded to count out individual items, placing them into an open napkin proffered by Rodriguez. The defendant then placed an item inside the back of his pants. Doherty arrived and, together with Rodriguez, went into a nearby store. Although Officer DiPerri did not see the items being placed into the napkin, viewed through the lens of his experience, it was consistent with a drug transaction. See Kennedy, supra at 711.
There is also evidence in the record that the second, third, and fourth Santaliz factors were met. The defendant's act of placing an item inside the back of his pants was indicative of furtive behavior. See Commonwealth v. Holley, 52 Mass.App.Ct. 659, 665 (2001). The area where these events occurred was known to the police to be an area of “drug use, drug dealing, [and] drug abuse.” Indeed, it was in response to a report of a man matching Rodriguez's description in the area dealing drugs that the officers were present there in the first place. Finally, the judge found that Officer DiPerri is an experienced police officer. Officer DiPerri testified that he has undergone training at a Drug Enforcement Agency drug school, has participated in over 100 surveillance operations, and has made between 100 to 300 arrests, with thirty to forty percent of those being arrests for drug transactions. Based on this training and experience, it was reasonable for Officer DiPerri to believe that a drug transaction had occurred.
Taken as a whole, the “silent movie,” viewed through the eyes of an experienced narcotics investigator, supports Officer DiPerri's reasonable belief that he had witnessed a drug transaction, and thus had probable cause to arrest the defendant.