United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
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
on the credible testimony and exhibits, I find the following
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,
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.
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 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. Det. Zingali parked his cruiser behind the
Mercedes, effectively blocking the driveway. The officers
then observed the driver and passenger exchange cell phones.
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.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”
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.
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.
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
Revere Police Department has no written policy governing
“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 ...