Opinion
14-P-15
07-14-2015
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jovani A. Garcia, is charged with possession with intent to distribute crack cocaine discovered when police stopped a vehicle in which he was a passenger. Following an evidentiary hearing, a judge of the District Court allowed the defendant's motion to suppress. Before us is the Commonwealth's interlocutory appeal. We affirm.
1. The judge's findings and conclusions. "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) (citation omitted). Here, the judge briefly explained his decision from the bench but did not make explicit factual findings. We therefore "analyze[] the record to see if the findings implicit in the judge's rulings are supported." Commonwealth v. Perez, 62 Mass. App. Ct. 912, 912 (2004), quoting from Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981). Our analysis focuses on the testimony of the only witnesses to testify at the suppression hearing -- New Bedford police narcotics Detectives Andrew Simmons and Jonathan Lagoa. Their testimony may be summarized as follows.
It bears reiterating that it is "desirable and prudent" for judges to make explicit findings. Commonwealth v. Grandison, 433 Mass. 135, 137 (2001). Ordinarily, it is preferable for findings to be made in writing, rather than orally, as written findings are likely to be more complete and provide greater clarity. See Commonwealth v. Viverito, 422 Mass. 228, 231 n.4 (1996) (written findings "greatly aid an appellate court's review of trial court actions").
On February 20, 2013, Simmons and Lagoa were conducting undercover surveillance in New Bedford on Mitchell Street, which runs between Sawyer Street on the north and Coggeshall Street on the south. This was a "high crime area" in which there was "drug activity," and the surveillance was prompted by complaints from neighbors. The detectives placed themselves at different vantage points relative to a multifamily residential building at 3-5 Mitchell. Simmons was in an unmarked vehicle, north of the building; Lagoa was sixty to seventy feet south of the building.
The sequence of relevant events began when Simmons saw a green Toyota Tercel turn right onto Mitchell from Coggeshall. The Toyota remained stationary for one second, proceeded north, made a U-turn in the middle of the street near 41 Mitchell, and then drove back going south. At about the same time, an unidentified man came out of 3-5 Mitchell. Simmons was "familiar" with this man, but could not recall his name at the time. Lagoa also recognized the man, but could not remember his name; however, he did recall having "conducted a search warrant on him." Both detectives described the man as being "light-skin[ned]." Simmons said he was "Spanish" and wearing a dark hat and dark shirt.
The detectives' testimony differs as to which of them first saw the man leave the building.
The man walked north to the Toyota and got into the back seat. The Toyota then traveled less than one hundred feet, stopping in front of 3-5 Mitchell. At that point, the man got out of the vehicle and reentered the building, and the Toyota drove off onto Coggeshall.
Believing that they had witnessed a drug transaction, Simmons followed the Toyota and radioed "take-down" detectives stationed nearby in unmarked cars. Simmons directed the take-down detectives to stop the vehicle, which they did. After the stop was effectuated, Simmons and Lagoa were told that the take-down detectives had found "three or four bags of crack cocaine" on the front seat, and that the occupants (one male and one female) were being placed under arrest and taken to the police station. Meanwhile, Simmons and Lagoa resumed their surveillance of 3-5 Mitchell from about the same distances as before.
This stop is not at issue in this appeal, and we express no opinion as to its propriety.
Simmons further testified that, later that day, he returned to the police station where he reviewed and approved a police report containing the following additional information. When the male occupant of the Toyota was brought to the police station, it was discovered that he had a bag of cocaine in his pocket. He explained to a detective named Wallace that this particular bag was already his, but that he had just purchased the three bags of cocaine found on the front seat from the man who had gotten in and out of the car. The record does not reveal when Wallace and the arrestee had this conversation. The testimony is clear, however, that Simmons did not know about it until after the day's undercover activities were completed.
Within ten minutes of the incident involving the Toyota, Simmons observed another vehicle, a gray Chevrolet, drive north on Mitchell, make a U-turn, head back down Mitchell, and park. Lagoa radioed Simmons that he saw a man coming out of 3-5 Mitchell, and said that it was the same man who had left and reentered the house during the earlier incident. Lagoa drew this conclusion from the fact that the man's clothing, body type, and complexion were similar to those of the man the detectives had seen previously.
The man got into the back seat of the Chevrolet, and the vehicle drove away -- proceeding south on Mitchell, turning right onto Coggeshall, and turning right again onto Belleville Avenue, which runs parallel to Mitchell. Based on Lagoa's radio communications, Simmons, who had not seen the man, radioed the take-down detectives and instructed them that if the Chevrolet made a third right turn onto Sawyer Street, they should stop it and "place the male under arrest for the prior distribution." Simmons did not want the car to circle the block and allow the suspect to reenter 3-5 Mitchell.
According to Simmons, the take-down detectives stopped the Chevrolet "right on the corner" of Sawyer and Belleville; Lagoa identified the site of the stop as the "intersection" of the two streets. The take-down detectives radioed Simmons that the suspect was in custody, along with the Chevrolet's driver and passenger, and that the three were being brought to the police station for booking. They also told Simmons that a plastic bag containing five smaller bags of crack cocaine had been found in the back seat.
Simmons later went to the police station. When he saw the suspect's booking photograph, he realized that this was not the same man he had seen entering the Toyota in the earlier incident. The suspect was the defendant, Jovani A. Garcia. After investigation, Simmons learned that the first man was the defendant's brother, Jose Garcia Menendez.
2. Discussion. The Commonwealth argues on appeal, as it did below, that the observations made by Simmons and Lagoa gave rise to probable cause to arrest the defendant for drug distribution, and that the police could stop the Chevrolet for that purpose. According to the Commonwealth, there was such great similarity between the behavior of the Chevrolet and the behavior of the Toyota (which, when stopped after an apparent drug transaction, was found to contain drugs) that the detectives had ample reason to believe that the man who came out of 3-5 Mitchell and entered the Chevrolet had committed or was committing a drug offense.
The Commonwealth does not argue that the stop was justified by the lower reasonable suspicion standard; nor could it do so on this record. The take-down detectives who effectuated the stop did not testify at the suppression hearing, and there is no evidence as to what was seen, said, or done during the stop. Without such testimony, it cannot be determined whether the stop was, in fact, a threshold inquiry that ripened into probable cause to arrest the defendant for possession of the crack cocaine found in the back seat.
We agree with the motion judge's conclusion that the two incidents were dissimilar in a critical respect, and, hence, a stop for the purpose of arresting the unidentified man was not justified. When Simmons radioed the take-down detectives to stop the Chevrolet, he specifically told them to do so if and when the Chevrolet made the turn onto Sawyer. Had that occurred, it would have bolstered the conclusion that, like the Toyota, the Chevrolet was heading back to drop off the suspected drug dealer at his base of operations on Mitchell. Instead, however, as the judge observed, the take-down detectives stopped the Chevrolet too soon.
The testimony was that the stop occurred "right on the corner," at the "intersection" of Belleville and Sawyer. There was no evidence from which it could be determined that the car had made or was intending to make the turn onto Sawyer. So far as it appeared at that juncture, the Chevrolet was driving away in a northerly direction on Belleville. Without more, it cannot be concluded that the Commonwealth sustained its burden of demonstrating that there was probable cause to arrest the man who had entered the vehicle and, thus, the detectives could not stop the Chevrolet for that purpose.
The defendant placed much emphasis at the motion hearing on the fact that he was not the man who was involved in the incident with the Toyota. However, even if the man who entered the Chevrolet was recognizably distinct from the man who entered the Toyota, it may have been reasonable for experienced narcotics officers to conclude that there was drug distribution afoot, so long as the movements of the vehicles and the behavior of the men emerging and returning to 3-5 Mitchell were substantially identical -- especially given the additional factors that the area was a high crime area with drug activity of which neighbors had complained. Even on such stronger facts, however, whether there would be enough to establish probable cause and not simply reasonable suspicion would depend on the details of the so-called "silent movie" observed by the investigators. See and compare Commonwealth v. Stewart, 469 Mass. 257, 262 (2014), and Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 452 (2015).
Order allowing motion to suppress affirmed.
By the Court (Cohen, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 14, 2015.