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Commonwealth v. Barreto

Supreme Judicial Court of Massachusetts, Suffolk

December 23, 2019

COMMONWEALTH
v.
ONAXIS BARRETO.

          Heard: September 6, 2019.

          Indictment found and returned in the Superior Court Department on August 28, 2014. A pretrial motion 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 Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Eduardo Masferrer for the defendant.

          Erin D. Knight, Assistant District Attorney (Kathleen Celio, Assistant District Attorney, also present) for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          BUDD, J.

         The defendant, Onaxis Barreto, was charged with trafficking in cocaine in violation of G. L. c. 94C, § 32E (b), following a search of his motor vehicle. The defendant filed a motion to suppress the evidence found in the vehicle, contending that the search took place after an unlawful exit order. A judge in the Superior Court denied the defendant's motion following an evidentiary hearing, and the defendant filed an interlocutory appeal. The Appeals Court reversed the denial in Commonwealth v. Barreto, 94 Mass.App.Ct. 337 (2018). We granted the Commonwealth's application for further appellate review.

         As did the Appeals Court, we conclude that based on the evidence presented at the suppression hearing, the exit order that precipitated the search of the vehicle was unjustified. We therefore reverse the order of the motion judge denying the defendant's motion to suppress.

         Background.

         The motion judge made the following factual findings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). Police received a tip from an undisclosed source that a green Volvo station wagon containing a "large" amount of narcotics would be located near a particular intersection in the Roxbury neighborhood of Boston.[1] As a result, police set up surveillance near the intersection indicated by the tipster. Soon thereafter, officers observed a green Volvo station wagon approach the intersection, turn left without signaling, and park approximately fifty feet away.

         The defendant, the vehicle's driver and sole occupant, leaned down and appeared to reach toward the floor of the passenger side of the vehicle. An unidentified pedestrian approached the vehicle from a nearby apartment building. When the pedestrian reached the driver's window, the two men appeared to speak. The pedestrian then leaned toward the vehicle and moved his arms "in a manner consistent with the two men exchanging something"; however, officers did not observe the hands of the two men come together. The interaction lasted about thirty seconds, after which the pedestrian returned to the apartment building. Police did not observe anything in the pedestrian's hands at any time during or after the interaction.

         The defendant resumed driving for a short distance until officers signaled for him to stop. At this point, at least four officers and three police vehicles had arrived. When engaged by two of the officers, the defendant avoided making eye contact. Officers observed that the defendant was breathing heavily and looking in his rear and side view mirrors at the officers and vehicles behind him.

         An officer issued an exit order to the defendant. As the defendant got out of his vehicle, the officer saw what appeared to be a roll of United States currency inside a clear plastic bag in the storage compartment of the driver's side door. A subsequent patfrisk revealed no weapons or contraband. Officers then searched the interior of the vehicle, and a drug-sniffing dog alerted for narcotics on the front passenger's seat. Police towed the vehicle to a police station, where a search of a box hidden inside the front passenger's seat revealed a "large amount" of cocaine inside plastic bags and several large stacks of cash.

         Discussion.

         Because the search of the defendant's vehicle was a direct result of observations police made after stopping his vehicle and issuing an exit order, we must examine the constitutionality of both the stop and the exit order. See Wong Sunv.United States, 371 U.S. 471, 484-488 ...


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