Heard: May 11, 2018.
found and returned in the Superior Court Department on August
28, 2014. A pretrial motion to suppress evidence was heard by
Kenneth W. Salinger, J., and a motion for reconsideration was
considered by him.
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 appeal was
reported by her to the Appeals Court.
Eduardo Masferrer for the defendant.
Kathleen Celio, Assistant District Attorney, for the
Present: Milkey, Hanlon, & Singh, JJ.
August, 2014, a grand jury indicted the defendant for
trafficking in 200 grams or more of cocaine. G. L. c. 94C,
§ 32E (b) (4). The charge was based on evidence found
during a warrantless search of the defendant's motor
vehicle. Following an evidentiary hearing, a Superior Court
judge denied the defendant's motion to suppress that
evidence.On the defendant's interlocutory
appeal, we reverse.
reviewing a decision on a motion to suppress, we accept the
judge's findings of fact absent clear error, but make an
independent determination whether the judge correctly applied
constitutional principles to the facts as found."
Commonwealth v. Evans, 8 7 Mass.App.Ct. 68 7, 68 8
(2015). The judge made careful, detailed findings, all of
which are supported by the record and therefore are binding
on us. Notably, the judge rejected some of the police
witnesses' claims about what they were able to observe
from a distance, and the specific factual claims that the
judge did credit were qualified. The factual recitation that
follows is drawn from the judge's findings.
The tip provided to police.
Boston police focused on the defendant's vehicle because
of a tip they had received from an undisclosed source.
Specifically, on or before June 9, 2014, the police received
information that a green Volvo station wagon containing a
"large" amount of drugs would be near a certain
intersection in the Roxbury section of Boston. No other
information regarding the tip was provided at the evidentiary
hearing. Thus, for example, there was no evidence
that the tipster provided the license plate number of the
vehicle, what time it would arrive, or any information
whatsoever about the vehicle's occupants, if any.
Similarly, there was no evidence about who the tipster was,
how he or she purportedly came into possession of the alleged
information, how that information was passed along to police,
or whether the police had any reason to trust it.
not happenstance that so little evidence was presented about
the tip, and none about the tipster. At the beginning of the
evidentiary hearing, the prosecutor made it clear that she
did not intend to go into such issues because she did not
want to risk identifying the informant. Thus, in an
effort to head off any inquiry into the tip, the prosecutor
expressly disavowed trying to establish the tip's
reliability pursuant to applicable case law, and she made it
clear that she would be "objecting to any sort of
[cross-examination] questions regarding the . . . source of
that information that the police had." Defense counsel
responded that he was content with this arrangement based on
his understanding of how the informant's alleged
information would be treated. Specifically, he stated as
follows: "It's a statement for context only
that's not being used because it doesn't satisfy [the
standard set forth in Aguilar v. Texas, 378 U.S. 108
(1964), and Spinelli v. United States, 393 U.S. 410
(1969)]. For those purposes, I've agreed to not go into
the -- who the source is, how is it that it came about, what
were the exact details of the tip because we're
[sic] not using it under
Aguilar-Spinelli to suppor[t] the stop or
search." The judge responded by stating, "Okay.
Fair enough." The prosecutor made no effort to disabuse
defense counsel of his understanding.
receiving the tip, four police officers set up surveillance
at the intersection mentioned by the informant. At about 5:15
£.M. on June 9, 2014, they saw a green Volvo station
wagon turn at the intersection without the driver using his
turn signal. The vehicle then parked approximately fifty feet
away. Shortly thereafter, one of the officers observed the
vehicle's operator, subsequently identified as the
defendant, lean down toward his right side "as if he
[were] reaching toward the floor of the passenger side with
both hands." According to the judge's findings, the
officer could not see the defendant's hands or what the
defendant might have been doing with them. Observing from a
distance, the officers saw a man approach the parked vehicle
from an adjacent building and interact with the defendant at
the driver's side window for approximately half a minute.
While the judge found that the police observed the
unidentified man who had approached the defendant's
vehicle lean toward it "in a manner consistent with that
man placing his hands on the Volvo door or reaching inside
the Volvo," he also found that the police did not
observe the defendant and the unidentified man actually
"reach their hands toward each other, bring their hands
together, or exchange any object." Furthermore, the
judge found that the police did not see anything in the
pedestrian's hands as he was walking away from the
vehicle, nor did they see him put anything into his pocket,
or move his arm in a manner suggesting that he had just put
anything there. Despite the absence of any observation of an
item being exchanged between the men, the judge found that
their interaction was "consistent with the two men
the man walked away, the defendant drove his vehicle to an
adjacent street, where the police pulled his vehicle over.
Although the defendant appeared nervous, he produced his
driver's license and vehicle registration when requested
to do so. At this point, there were at least four officers at
the scene, and one of them ordered the defendant out of the
vehicle. As the defendant was stepping out of the vehicle,
the officer saw a roll of cash in a clear plastic bag on the
inside of the driver's door. After further questioning of
the defendant proved fruitless and a patfrisk of him revealed
nothing, the police initiated a thorough search of the
vehicle, subsequently aided by a drug-sniffing dog. They
eventually uncovered a metal box underneath the passenger
seat, inside of which was a large amount of cocaine and
defendant moved to suppress all the evidence the police
collected pursuant to the stop and search of his vehicle,
including the cocaine, its packaging, the money (which
totaled $11, 050), the defendant's cellular telephones,
and a magnet that police believed was used to access a
"hide" inside the vehicle. The judge ruled in the
Commonwealth's favor. In doing so, he did not rely on the
informant's tip in any fashion. In fact, with regard to
that tip, the judge found that "[t]he Commonwealth did
not present any evidence to demonstrate the basis for the
informant's knowledge, that the police had any reason to
believe that the informant was truthful, or that the police
had corroborated the source's information that the
[defendant's vehicle] would contain illegal drugs."
Instead, the judge concluded that the police had reasonable
suspicion to stop the vehicle and to order the defendant out
of it based on the brief interaction that the police had
observed between the defendant and the unidentified man who
had approached his vehicle. Then, according to the judge,
once the police observed the wad of bills in the driver's
door while the exit order was being executed, they gained
probable cause that justified their subsequent search of the
dispute before us is relatively narrow. It is uncontested
that the police found the cocaine and other incriminating
evidence during an investigatory search of the
defendant's vehicle. It follows that this search was
valid only if the Commonwealth at that point had probable
cause to conduct the search. Commonwealth v.
Eggleston, 453 Mass. 554, 557 (2009). Moreover, the
Commonwealth acknowledges that its claim that it had probable
cause depends on the police having observed the roll of bills
in the door of the vehicle while they were executing the exit
order. Therefore, if the exit order was not valid, the
Commonwealth's claim that it had probable cause to search
the vehicle falls short.
the police could have stopped the vehicle for the civil
traffic violation they observed,  this would not have
justified the exit order that led to the discovery of the
roll of bills. Rather, in the particular circumstances of
this case, the validity of the exit order -- and hence the
Commonwealth's claim that it obtained probable cause once
it found the wad of bills -- depends on the police having
gained reasonable suspicion that the defendant was engaged in
illegal drug activity. See Commonwealth v. Bostock,
450 Mass. 616, 621-622 (2008) (exit order justified when
police have reasonable suspicion that operator engaged in
criminal activity). The key question, then, is whether, by
the time the police ordered the defendant out of his vehicle,
they had "reasonable suspicion, based on specific,
articulable facts and reasonable inferences therefrom, that
an occupant of the . . . motor vehicle had committed, was
committing, or was about to commit a crime."
Commonwealth v. Anderson, 461 Mass. 616, 621, cert,
denied, 568 U.S. 946 (2012), quoting Commonwealth v.
Alvarado, 423 Mass. 266, 268 (1996). We turn to that
question and begin by examining the grounds on which the