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Commonwealth v. Santiago

Appeals Court of Massachusetts, Essex

August 22, 2018

COMMONWEALTH
v.
WILFREDO SANTIAGO.

          Heard: April 4, 2018.

          Indictments found and returned in the Superior Court Department on October 15, 2014.

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

          Edward Crane for the defendant.

          David F. 0'Sullivan, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Sacks, & Singh, JJ.

          SACKS, J.

         Following a jury trial, the defendant was convicted of possession of a firearm, second offense, [1] and possession of a loaded firearm. On appeal, the defendant argues that a Superior Court judge (motion judge) erred in denying his motion to suppress the firearm and some cash discovered during a stop of the vehicle in which the defendant was a passenger. The defendant asserts that police conduct during the stop --including boxing the vehicle in and approaching with guns drawn -- escalated the encounter to an arrest, for which probable cause was lacking.

         After considering the circumstances as a whole, we conclude that the officers' show of force was sufficiently significant to convert the stop to an arrest. Because the Commonwealth concedes that there was no probable cause to arrest the defendant at the time, the motion to suppress should have been allowed. Accordingly, we reverse the convictions.

         1. Background.

         We summarize the motion judge's detailed findings of fact, supplementing with additional facts from testimony that the judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). Here, the defendant concedes that police had reasonable suspicion to conduct an investigatory stop of the vehicle in which he was traveling, based on evidence of drug dealing as well as traffic violations. We therefore focus our recitation on the facts relevant to the defendant's challenge on appeal.

         In the summer of 2014, State police were conducting an investigation into suspected drug dealing in Lawrence, centering on the defendant, and using a confidential informant. During the investigation, officers determined that the defendant was known to the Lawrence police and had a prior conviction of a firearms offense. The confidential informant told police that the defendant was selling cocaine and was "involved with firearms."

         On August 6, 2014, police initiated surveillance of the defendant based on the informant's report that the defendant would be traveling to Lynn to pick up cocaine to bring to Lawrence. The surveillance team comprised multiple officers from the State police, the Federal Drug Enforcement Administration, and the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, in unmarked vehicles. During the course of the surveillance, officers observed the defendant, along with three other men about whom police apparently had no information, [2] depart a home in Lawrence in a red GMC Envoy sport utility vehicle. The defendant was seated in the right rear passenger's seat. The surveillance team followed the GMC surreptitiously. After making a number of stops in Lawrence and then in Lynn, at about 6:00 P.M. the defendant and his companions proceeded in the GMC to Route 114 westbound toward Lawrence.

         When the GMC reached a point where the road widened from one to two lanes and motorists often accelerate to pass slower vehicles, it suddenly more than doubled its speed, operating well over the posted speed limit. Believing that the GMC's occupants had detected the surveillance, officers decided to stop the ...


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