Heard: October 7, 2016.
found and returned in the Superior Court Department on August
pretrial motion to suppress evidence was heard by David A.
Lowy, J., and the cases were tried before James F. Lang, J.
E. Methe for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
Present: Agnes, Maldonado, & Desmond, JJ.
more than seventy-five years, we have avoided an overly
formulaic approach to the determination of whether there is
probable cause to search or arrest a person who is suspected
of participation in a street-level drug transaction. Instead
we endorsed the observation made in Brinegar
v. United States, 338 U.S. 160, 175 (1949):
"In dealing with probable cause, however, ... we deal
with probabilities. These are not technical; they are the
factual and practical considerations of everyday life on
which reasonable and prudent men [and women], not legal
technicians, act." For example, in Commonwealth
v. Santaliz, 413 Mass. 238, 241 (1992), the
Supreme Judicial Court set forth a nonexclusive list of
factors that, when taken together, support a ruling that
there was probable cause to search a person in the context of
a suspected street-level drug transaction. In
Commonwealth v. Kennedy, 426 Mass.
703, 708-711 (1998),  the court added that while there is no per
se rule (and the court declined to adopt such a rule) that an
officer must observe an identifiable object being passed or
received in order to have probable cause to believe a
street-level drug transaction had occurred, "whether the
officer sees an object exchanged is an important piece of
evidence that supports probable cause, and its absence
weakens the Commonwealth's probable cause showing."
More recently, in Commonwealth v.
Stewart, 469 Mass. 257, 263 (2014), the court took a
step beyond Kennedy, and stated that, in these
cases, "the suspect's movements, as observed by the
officer, must provide factual support for the inference that
the parties exchanged an object." See
Commonwealth v. Ilya I., 470 Mass.
625, 631 (2015) .
principal question presented for our review in the present
case is whether a police officer, experienced in drug
investigations, had probable cause to believe a street-level
drug transaction had occurred even though there was no
observation of either an actual exchange between the parties
or furtive movements. We agree with the motion judge that the
events in question, when viewed through the eyes of an
experienced drug investigator, were sufficient to permit the
officer to infer that an exchange had occurred and to
establish probable cause for the seizure and subsequent
search of the defendant. Accordingly, for the reasons that
follow, we affirm.
defendant appeals from three drug convictions arising out of
two separate incidents on July 5 and July 12, 2013. Two
indictments charged possession with intent to distribute
cocaine, subsequent offense, in violation of G. L. c. 94C,
§ 32A(b), and one indictment charged possession of
heroin, subsequent offense, in violation of G. L. c. 94C,
§ 34.The defendant moved to suppress the
evidence recovered from his person on July 5, on the grounds
that the officer had lacked any justification to search,
seize evidence from, or arrest him. He also contended that
the evidence recovered from his person and any statements he
made on July 12, when he was arrested on a probation warrant
resulting from his July 5 arrest, should be suppressed as the
"fruit of the poisonous tree." On January 15, 2014,
following an evidentiary hearing, the motion judge denied the
motion to suppress. Following a jury-waived, bifurcated trial
in accordance with G. L. c. 278, § 11A, the defendant
was found guilty of the counts and sentenced to a term of
imprisonment in State prison.
Evidence presented at motion to suppress hearing.
evening of July 5, 2013, Officer Paul Holey, a twenty-year
veteran of the Lynn police department, was conducting a
patrol, driving in a marked police cruiser, in the Hamilton
Avenue area of Lynn with his partner, Officer Paul Wonoski.
Officer Holey had patrolled that area for four years, and had
made "many arrests" for offenses including drugs
and weapons. Officer Holey described a common method of
selling drugs in that area in the form of "car meets,
" wherein a buyer would arrive via a vehicle, use a
cellular telephone (cell phone) to contact a seller, and then
arrange an in-person transaction at the vehicle.
about 7:41 P.M., Officer Holey observed a green Ford Explorer
with Maine license plates parked on Hamilton Avenue. Officer
Holey also observed that the vehicle's only occupant was
a woman using a cell phone. Officers Holey and Wonoski passed
the vehicle and circled around the block. Upon reapproaching
the vehicle from behind at a distance of about twenty to
twenty-five yards away, Officer Holey observed the defendant,
who was standing next to the front passenger-side window,
reach into the vehicle "making a passing motion"
with his hand, quickly pull his hand out, and then
immediately walk away. Officer Holey did ...