Heard: April 4, 2018.
Indictments found and returned in the Superior Court
Department on October 15, 2014.
pretrial motion to suppress evidence was heard by James F.
Lang, J., and the cases were tried before Mary K. Ames., J.
Crane for the defendant.
F. 0'Sullivan, Assistant District Attorney, for the
Present: Rubin, Sacks, & Singh, JJ.
a jury trial, the defendant was convicted of possession of a
firearm, second offense,  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.
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.
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.
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
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,  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.
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 ...