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
A Boston Municipal Court judge allowed the defendant's motion to suppress, ruling that the police did not have reasonable suspicion to stop the defendant's car. The Commonwealth appeals, citing Commonwealth v. Stephens, 451 Mass. 370, 885 N.E.2d 785 (2008), and arguing the stop was justified. We affirm.
We supplement the facts found by the motion judge, with " uncontroverted testimony from the suppression hearing." Commonwealth v. Clark, 65 Mass.App.Ct. 39, 40, 836 N.E.2d 512 (2005). On July 21, 2012, five officers from the Boston police department's drug control unit (DCU) were conducting a surveillance at a Walgreens parking lot near Egleston Square in the Roxbury section of Boston. One of the officers, Officer Frank Colon, described the area as one where there had been a number of drug transactions, including ten arrests that he had made in the Walgreens parking lot, as well as many citizen complaints about drug activity. At approximately 6:00 p.m., the police officers observed a black sedan pull into the parking lot. The defendant was driving the sedan while speaking on a cellular telephone, and apparently looking for someone, while keeping an eye on the pedestrian and vehicular traffic.
After about five minutes, a black male, also on a cell phone, walked toward the car. The defendant waived to him, mouthing words that Colon believed were to the effect of, " I'm over here." The man entered the car on the passenger side and the defendant drove away, travelling for about five minutes and eventually stopping at 99 Walnut Park. The defendant and the man remained in the car parked at 99 Walnut Park for as many as five minutes, appearing to be having a conversation. The police officers did not notice either person make any furtive movements or gestures. At some point, the man got out of the car and entered 99 Walnut Park, where he remained for the time that the officers continued their surveillance.
Believing they had observed a street-level drug transaction, a " ride to nowhere," that did not last more than ten minutes, the officers followed the black sedan after it had reentered traffic and pulled it over near an intersection. The defendant responded to the question of where she was coming from, in a nonagitated manner, saying that she was coming from Walgreens and that she had just given a friend a ride, dropping him off at his house. One of the officers later asked the defendant whether she had drugs on her; the defendant replied that the officers were welcome to search the car. A search of the car revealed Oxycontins and empty pill bottles in a crumpled Walgreens bag in the glove compartment. The defendant was charged with possession of a class B substance with intent to distribute, in violation of G. L. c. 94C, § 32A( a ), and a school zone violation, under G. L. c. 94C, § 32J.
After the hearing, the motion judge described the case as a " close call," given the police officers' decades of experience, but concluded that the police officers had stopped the vehicle essentially on a " hunch." Specifically, the judge disagreed with the police officers' characterization of the defendant's trip from Walgreens to 99 Walnut Park as a " ride to nowhere." The judge also noted that there was " no exchange observed. Neither person [was] known to the officers and therefore not someone who would be under surveillance."
In reviewing a ruling on a motion to suppress, " we accept the motion judge's subsidiary findings of fact absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law." Stephens, 451 Mass. at 381. " A police officer may stop a vehicle in order to conduct a threshold inquiry if he has reasonable suspicion that the occupants have committed, are committing, or are about to commit, a crime." Commonwealth v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990), quoting from Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). However, " [r]easonable suspicion may not be based on good faith or a hunch, but on specific, articulable facts and inferences that follow from the officer's experience." Commonwealth v. Franklin, 456 Mass. 818, 823, 926 N.E.2d 199 (2010) (citation omitted).
Here, we agree with the judge's conclusion that the following four factors, by themselves, did not give rise to reasonable suspicion: (1) the defendant's car was parked in an area of the Walgreens parking lot away from the heaviest traffic, (2) the defendant mouthed words, flagging down a man who entered her car, (3) the destination of 99 Walnut Park was within walking distance, and (4) the man arrived at the Walgreens parking lot from the general direction of 99 Walnut Park. Each is a valid factor, one that would contribute to a determination that there was reasonable suspicion. However, none of the other events leading up until the stop contribute that something more that could elevate a " hunch" to reasonable suspicion, which distinguishes this case from Stephens. Here, the police possessed no prior information about either person participating in the alleged drug transaction. Contrast Commonwealth v. Kennedy, 426 Mass. 703, 704, 690 N.E.2d 436 (1998) (one of the individuals observed by the police officers was a known drug dealer); Commonwealth v. Stewart, 469 Mass. 257, 261, 13 N.E.3d 981 (2014) (police officer familiar with defendant who had been previously arrested for distributing narcotics). Nor was there anything suspicious about the defendant's vehicle. Contrast Commonwealth v. Cabrera, 76 Mass.App.Ct. 341, 347, 921 N.E.2d 1026 (2010) (vehicles surveyed were rentals, commonly used in drug transactions, with out-of-State plates). The way the defendant flagged down the man had none of the suspicious, furtive, or unusual characteristics that weighed in favor of the legality of the stop in other cases. Contrast Stephens, 451 Mass. at 373 (codefendant in first vehicle parked in front of a second vehicle, at which point codefendant nodded his head indicating to the defendant in the second car to follow to the eventual meeting place); Commonwealth v. Sweezey, 50 Mass.App. 48, 49, 735 N.E.2d 385 (2000) (individuals in the first car stopped, flashed lights, and the second car immediately followed the first car).
As the judge observed, the drive to 99 Walnut Park, although just five minutes long and preceded by the man coming to the meeting from the general direction of Walnut Park, was, in fact, a drive to " somewhere," to a location consistent with the defendant's story that she drove a friend to his house. Contrast Stephens, 451 Mass. at 373 (the individuals under surveillance drove from the initial parking lot to a more secluded area in a gasoline station parking lot to conclude the transaction); Cabrera, supra at 346 (individuals in surveyed vehicles proceeded to complete the drug transaction in a " location out of public view, a dead-end alley" ). There is no evidence in this case that the defendant did anything more than park near 99 Walnut Park where she continued to converse with her passenger for several minutes in the car. As noted, the police did not observe any furtive or unusual gestures between the car occupants that would suggest a drug transaction was taking place. See Commonwealth v. Smith, 55 Mass.App.Ct. 569, 573, 772 N.E.2d 1084 (2002) (police office " did not observe any actual transaction or furtive activity on the part of the defendant" ). Contrast Stephens, 451 Mass. at 374 (upon being approached by police officer, defendant quickly lowered " black object" that he was holding in the area of his chest); Commonwealth v. Santiago, 470 Mass. 574, 579, 24 N.E.3d 560 (2015) (" defendant's extended arm and [another individual's] corresponding gesture in relation to his shirt pocket provided some basis" that the police officer had noticed a drug transaction).
The Commonwealth disagrees with the motion judge's conclusion about the benign appearance of the ride, arguing that the judge gave insufficient weight to the information that the Walgreens parking lot was a drug activity area and no weight to one of the police officer's testimony that 99 Walnut Park is a location of interest because it was under investigation for " prior incidents." " [T]he credibility and weight of testimony remain the province of the motion judge." Commonwealth v. Lahey, 80 Mass.App.Ct. 606, 609, 954 N.E.2d 1131 (2011). The testimony about the Walgreen's parking lot adds only slightly to the analysis. See Commonwealth v. Grandison, 433 Mass. 135, 139, 741 N.E.2d 25 (2001) (" Just being in a high crime area is not enough to justify a stop" ) Even were we to infer, as the Commonwealth asks, that the testimony that the address of 99 Walnut Park was the subject of an investigation, coming from an officer of the DCU, meant that it was a drug investigation, the testimony about Walnut Park amounts to no more than an indication that there had been some drug incidents in the " complex" at 99 Walnut Park (presumably a multi-unit building), where the man apparently lived. Even taken together with the other " facts and inferences underlying the officer[s'] suspicion," Commonwealth v. Isaiah I., 450 Mass. 818, 823, 882 N.E.2d 328 (2008), this information does not suffice for us to conclude that, prior to the stop, " the officers reasonably suspect[ed] that the defendant had committed, was committing, or was about to commit a crime." Commonwealth v. Martinez, 74 Mass.App.Ct. 240, 245, 905 N.E.2d 592 (2009).
Finally, the Commonwealth contends that the motion judge should have given deference and more weight to the police officers' experience and judgment that the actions observed were consistent with a drug transaction. On the contrary, the motion judge clearly considered the police officers' experience when carefully comparing and contrasting the case at bar ...