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Commonwealth v. Sanders

Appeals Court of Massachusetts, Essex

November 15, 2016

COMMONWEALTH
v.
EMERY SANDERS

          Heard: October 7, 2016.

         Indictments found and returned in the Superior Court Department on August 5, 2013.

         A pretrial motion to suppress evidence was heard by David A. Lowy, J., and the cases were tried before James F. Lang, J.

          James E. Methe for the defendant.

          Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

          Present: Agnes, Maldonado, & Desmond, JJ.

          AGNES, J.

         For 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.[1] In Commonwealth v. Kennedy, 426 Mass. 703, 708-711 (1998), [2] 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) .

         The 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.

         Background.

         The 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.[3]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.[4]

         1. Evidence presented at motion to suppress hearing.

         On the 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.

         At 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 ...


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