United States v. Perez

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

          STEARNS, D.J.

         On October 31, 2017, defendant Andres Perez was stopped by Revere police after being observed engaged in what officers believed to be a drug transaction. He now moves to suppress the warrantless seizure of drugs from his Mercedes vehicle and later from his person during a search incident to booking. He also challenges the initial stop by police, arguing that they lacked the reasonable suspicion necessary to justify the infringement of his Fourth Amendment rights. An evidentiary hearing on the motion was held on October 31, 2018, and, at counsels' request, supplemental memoranda were filed based on the testimony and exhibits presented at the hearing.

         Based on the credible testimony and exhibits, I find the following material facts.

         1. On the morning of October 31, 2017, Lt. Maria Lavita and Det. Douglas Zingali, seasoned Revere officers with 43 years of police work between them, were on patrol in an unmarked cruiser on Harris Street near Route 1A in Revere, Massachusetts.

         2. The officers observed an unidentified male pacing nervously on Harris Street while speaking on a cell phone. The officers' attention was drawn by the fact that the man appeared inappropriately dressed (in shorts and a T-shirt) on a late fall day.

         3. As the officers watched, the man walked north on Harris and turned right on Eustis Street. As he stood at the front of 27 Eustis Street, a two-door Mercedes pulled up. The man leaned into the passenger window of the Mercedes and then 10 or 15 seconds later walked away. Suspecting that a sale of drugs had just taken place, the officers decided to follow the Mercedes.

         4. The Mercedes proceeded up Eustis, turning right on Cary Avenue, and a block later right onto Beach Street. The Mercedes drove one block on Beach before turning left on Janvrin Avenue. A block later, the Mercedes turned left on Trevalley Road. As the Mercedes approached Payson Street, Det. Zingali activated the cruiser's siren and blue lights. The Mercedes then pulled into a driveway at 55 Payson Street where it came to a stop.^[1] Det. Zingali parked his cruiser behind the Mercedes, effectively blocking the driveway. The officers then observed the driver and passenger exchange cell phones.

         5. Det. Zingali exited the cruiser and approached the driver's side of the Mercedes, while Lt. Lavita went to the passenger side. Det. Zingali asked the driver, who identified himself as Andres Perez, for his license and registration. Perez produced the registration, but stated that he did not have his license with him. When asked why he had pulled into the driveway, Perez said that he was visiting a friend for whom he gave a name.^[2]Upon running Perez's name through his dispatch center, Det. Zingali learned that his driver's license had been revoked. Det. Zingali then placed Perez under arrest for operating after revocation. Meanwhile, Lt. Lavita asked the passenger, later identified as Cesar Alicea, to write down his name and date of birth on a sheet of paper. Lt. Lavita returned to the cruiser to “run” Alicea's name.

         6. A uniformed officer, Sgt. Rose, responding to the call for backup, then arrived at the scene in a marked cruiser. Det. Zingali then ordered the driver, defendant Andres Perez, to step out of the Mercedes. As he did so, Alicea jumped out of the passenger seat and ran down Trevalley Road with Lt. Lavita and Sgt. Rose in pursuit. As Sgt. Rose chased after Alicea, he observed him throw an object over a neighboring fence. After Alicea was caught and arrested, Det. Lt. Robert Impemba, who had also responded as backup, found a loaded .25 caliber semiautomatic firearm in a vegetable garden in the area where Alicea had thrown the object.

         7. After Perez and Alicea were transported from the scene by uniformed officers, Lt. Lavita and Det. Zingali called for a K-9 unit. The narcotics dog alerted to a baggie containing a white substance on the floor of the driver's side of the Mercedes. Once the dog had completed a sniff search, the officers seized the baggie and searched the car. No. other drugs were found. However, a revoked license plate was seized from the trunk of the vehicle.

         8. At the Revere police station, Perez was booked by Lt. Impemba, the supervisor of the Narcotics and Gang Unit and a member of the FBI's North Shore Gang Task Force. Lt. Impemba had been one of the backup officers responding to Payson Street. Det. Zingali and a uniformed officer were also present. During the booking, $269 in various denominations was retrieved from one of Perez's pockets. Three cell phones were also seized. Lt. Impemba believed that, as a known narcotics distributor, Perez would have more drugs in his possession than the single baggie found in the Mercedes and that these drugs were likely concealed on his person. Lt. Impemba ordered Perez to lower his pants and underwear and bend over at his waist. When, after some initial hesitation he did so, Det. Zingali observed a clear plastic baggie protruding from his butt cheeks. Det. Zingali removed the baggie from the buttocks area with a gloved hand and without touching Perez's person. The baggie was found to contain 10 smaller baggies of crack cocaine and three baggies of heroin.

         9. The Revere Police Department has no written policy governing strip searches.

         RULINGS OF LAW

         1. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 145-146 (1972). “Based upon [the] whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-418 (1981). A combination of suggestive circumstances, largely innocent in and of themselves, when considered in their totality, may constitute the “reasonable suspicion” necessary to justify a Terry stop. United States v. Sokolow,490 U.S. 1, 9 (1989). In the same vein, conduct that would likely be perceived as innocent by a casual onlooker may in the totality of the circumstances appear suspicious to a trained and ...