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Commonwealth v. Barreto

Appeals Court of Massachusetts, Suffolk

October 29, 2018


          Heard: May 11, 2018.

         Indictment 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.

         An 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 Commonwealth.

          Present: Milkey, Hanlon, & Singh, JJ.

          MILKEY, J.

         In 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.[1]On the defendant's interlocutory appeal, we reverse.

         Standard of review.

         "When 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.[2]


         1. The tip provided to police.

         The 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.[3] 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.

         It was 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.[4] 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.

         2. Police observations.

         Upon 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 exchanging something."

         After 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[5] 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 additional cash.

         The 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 vehicle.


         1. Introduction.

         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).[6] 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.

         While the police could have stopped the vehicle for the civil traffic violation they observed, [7] this would not have justified the exit order that led to the discovery of the roll of bills.[8] 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 judge relied.

         2. Reasona ...

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