This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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, 881 N.E.2d 792 (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, 801 N.E.2d 233 (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, 816 N.E.2d 554 (2004), quoting from Commonwealth v. Gaulden, 383 Mass. 543, 547, 420 N.E.2d 905 (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.
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 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.
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 ...