Heard: Date January 20, 2016
received and sworn to in the Roxbury Division of the Boston
Municipal Court Department on July 25, 2013. A pretrial
motion to suppress evidence was heard by Debra Shopteese, J.
application for leave to prosecute an interlocutory appeal
was allowed by Geraldine S. Hines, J., in the Supreme
Judicial Court for the county of Suffolk, and the case was
reported by her to the Appeals Court.
M. Campbell, Assistant District Attorney, for the
Bradford R. Stanton for the defendant.
Present: Trainor, Agnes, & Massing, JJ.
Commonwealth appeals from the allowance of a motion to
suppress evidence in the Roxbury Division of the Boston
Municipal Court. The Commonwealth argues that three of the
judge's factual findings are clearly erroneous because
they were not supported by the evidence presented at the
suppression hearing. The Commonwealth also argues that the
judge erred in allowing the motion to suppress because the
police officer had probable cause to believe that the
defendant had sold heroin to another individual. We vacate
summarize the facts found by the motion judge following the
evidentiary hearing, supplemented where necessary with
undisputed testimony that was implicitly credited by the
judge." Commonwealth v.
Oliveira, 474 Mass. 10, 11 (2016)
Shawn Grant testified that on the afternoon of July
24, 2013, he saw two individuals, later identified as Cesar
Caban and James Niemczyk, on Washington Street in the Roxbury
section of Boston walking back and forth while talking on
cellular telephones (cell phones). Officer Grant alerted
other officers in the area of the behavior and parked his
unmarked police vehicle on the same side of Washington Street
as the two individuals. After about fifteen minutes, Officer
Grant saw the defendant cross Washington Street walking
toward Caban and Niemczyk, who were now standing near a tree,
and place an item into a residential mailbox not more than
twenty-five feet from the tree. The defendant then walked to
the tree and took money which Caban had wedged into the
branches. Caban then walked to and reached into the mailbox
and removed an item from inside. Officer Grant reported what
he had witnessed to the nearby officers. Based on his
training and experience, he believed he had witnessed a drug
Grant followed the defendant to where he entered the
passenger side of a parked automobile while other officers
observed Caban and Niemczyk. Officer Grant heard over the
radio that the other officers had stopped Caban and had found
one plastic bag containing heroin on him. After Officer Grant
heard this, he stopped the automobile with the defendant in
it and placed the defendant under arrest for distribution of
a class A substance (heroin, in violation of G. L. c. 94C,
§ 32 [a.]) . During a search incident to arrest of the
defendant, Officer Grant found two cell phones on him and a
total of $680 -- $630 in one pocket, and fifty dollars in the
reviewing a motion to suppress, "we adopt the motion
judge's factual findings absent clear error."
Commonwealthv.Isaiah I., 450
Mass. 818, 821 (2008), citing Commonwealthv.Catanzaro, 441 Mass. 46, 50 (2004).
"We take the facts from the judge's findings
following a hearing on the motion to suppress, adding those
that are not in dispute, and eliminating those that, from our
reading of the transcript, are clearly erroneous."
Mass.App.Ct. 558, 558-559 (1994) . "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.'" Green v. Blue Cross & ...