Com. v. Cabrera

921 N.E.2d 1026

76 Mass. App. Ct. 341

COMMONWEALTH v. Enrique CABRERA.

No. 09-P-274.

Appeals Court of Massachusetts, Suffolk.

Argued January 13, 2010.

Decided February 25, 2010.

Elisabeth Kosterlitz, Assistant District Attorney, for the Commonwealth.

Patricia A. DeJuneas, Boston, for the defendant.

Present: GRASSO, COHEN, & SIKORA, JJ.

GRASSO, J.

On October 15, 2007, Boston police officers arrested the defendant, Enrique Cabrera, after a patfrisk revealed that he was unlawfully carrying a loaded firearm. The defendant moved to suppress the firearm and other evidence seized, and after an evidentiary hearing, a judge of the Boston Municipal Court allowed the defendant's motion.¹ The judge concluded that the police lacked the requisite reasonable suspicion of criminal activity to stop the defendant and the requisite reasonable apprehension of danger to frisk him.

A single justice of the Supreme Judicial Court allowed the Commonwealth's application for an interlocutory appeal from the allowance of the defendant's motion to suppress. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The case is now before us on the Commonwealth's interlocutory appeal. For the reasons that follow, we reverse the order of suppression.

1. Facts. We summarize the facts, supplementing the judge's factual findings "with uncontested testimony from the suppression hearing, ... mindful that assessment of witness credibility is the province of the motion judge." Commonwealth v. Murphy, 63 Mass.App.Ct. 11, 12, 822 N.E.2d 320 (2005) (citation omitted). On October 15, 2007, at around 10:00 P.M., Boston police Detectives Greg Walsh and Michael Feeney were patrolling in plain clothes in an unmarked Jeep sport utility vehicle in the vicinity of the Cathedral Housing Project in the South End section of Boston.² In the course of their patrol, they observed a grey Chrysler 300 automobile with Virginia license plates and three occupants, which was not remarkable for any reason other than its out-of-State license plate. Because it was a slow night, the officers decided to run a check on the vehicle's plate. The check disclosed that the car was a rental vehicle, a fact that was significant to Walsh, who had extensive experience in drug investigations. In Walsh's experience, rental vehicles are often "tools of the trade" for persons involved in drug distribution and other illegal activities.³

Walsh and Feeney followed the Chrysler at a distance as it traveled to the Massachusetts Bay Transportation Authority's Back Bay Station on Dartmouth Street, a location known for drug dealing. En route, the officers did not observe the Chrysler commit any motor vehicle violations or its occupants engage in any actions indicative of criminal activity.

Just after the Chrysler passed the Back Bay Station, it made a U-turn on Dartmouth Street and pulled over to the curb. After a few seconds, the Chrysler pulled back into traffic in the opposite direction. As it did, a gray Volkswagen Jetta automobile with tinted windows began to follow the Chrysler. The officers observed no signals, waving of the hands, or other acknowledgments exchanged between the two vehicles or their occupants.

The officers followed the two vehicles at a distance for several blocks. As they did, they ran a check on the Volkswagen's license plate and learned that the vehicle was registered to an individual named Mary Ortiz Gementis from Southbridge. Upon reaching 365 Massachusetts Avenue, a multi-unit apartment building, the two vehicles pulled into a dead-end public alley that ran along the side of the building. Without blocking egress, the officers positioned their unmarked vehicle at the beginning of the alley. From that vantage, the officers saw the vehicles come to a stop and park in two parking spaces along the left-hand side of the alley.⁴

The officers observed the operator of the Chrysler, later identified as Emilio Rosado-Lara, exit the vehicle and meet up with the defendant, who exited the driver's side of the Volkswagen. The two men entered a common hallway in the rear of 365 Massachusetts Avenue. Meanwhile, the two passengers (later identified as David Medina and Carlos Reyes) exited the Chrysler, as did the passenger in the Volkswagen (later identified as Francisco Agron). The three men stood near the cars and began talking.

Suspecting that a drug transaction was afoot, the officers drove down the alley and parked their unmarked vehicle without blocking the Chrysler or the Volkswagen. With their badges displayed conspicuously from their necks, the officers approached the three men standing alongside the two vehicles. Detective Feeney asked them who owned the Volkswagen, which was still idling with no operator or passenger inside. The men responded by shaking their heads to indicate that they didn't know to whom the car belonged, a response that the officers considered untruthful. As this was occurring, Walsh noticed Medina take out his cellular telephone, place it down by his side, and attempt to dial a number. Concerned that Medina was attempting to alert someone to the presence of the police, Walsh asked Medina to stop and put the phone away. Medina then told Walsh that he lived at 365 Massachusetts Avenue, that Reyes was his uncle, and that Agron was a friend of theirs.

As Medina explained this, the rear door to 365 Massachusetts Avenue opened and Rosado-Lara came out, followed closely by the defendant. The men appeared surprised by the officers' presence in the alleyway. Rosado-Lara made eye contact with Walsh and abruptly turned around and attempted to go back inside, bumping into the defendant. Because the door had shut and locked, the men could not reenter. Both Rosado-Lara and the defendant began looking around nervously, scanning the scene. They looked to Walsh as if they wanted to flee.

Walsh did not know precisely why Rosado-Lara and the defendant were acting as they did, but considering what he and Feeney had observed and the fact that they were outnumbered and in an alley with only one route of egress, he was fearful for his safety and decided that a patfrisk for weapons was in order. Walsh ordered the five individuals to place their hands on the top of one of the cars and called for backup to assist in the patfrisk. While waiting for backup to arrive, all the men complied with Walsh's order.⁵

Within two minutes of Walsh's call, Officers Donga and Hynes and Sergeant Detective Fitzpatrick arrived on the scene. At Walsh's direction, Donga conducted a patfrisk of the defendant and found a gun loaded with five rounds in the rear pocket of the defendant's baggy jeans.

2. Discussion. "[W]e accept the judge's subsidiary findings of fact absent clear error `but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Costa, 65 Mass.App.Ct. 227, 229-230, 838 N.E.2d 592 (2005), quoting from Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). Although the judge's subsidiary factual findings are supported by the record, we disagree with his conclusion that the police lacked reasonable suspicion of criminal activity to justify a stop, see Commonwealth v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990), and reasonable apprehension of danger to justify a frisk. See Commonwealth v. Mercado, 422 Mass. 367, 369-370, 663 N.E.2d 243 (1996).

We view the case as presenting another example of the increasingly fine, and sometimes indiscernible, line between conduct that is permissible under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights and conduct that is not. Compare Commonwealth v. DePeiza, 449 Mass. 367, 371-372, 868 N.E.2d 90 (2007) (defendant's straight-arm gait and shielding of his side from view provided reasonable suspicion that he possessed a firearm unlawfully), and Commonwealth v. Johnson, 454 Mass. 159, 163-164, 908 N.E.2d 729 (2009) (officers investigating possible trespass in high crime area "not required to accept risk of ... ambiguity" posed by defendant who disregarded command to take his hands out of his pockets), with Commonwealth v. Gomes, 453 Mass. 506, 512-514, 903 N.E.2d 567 (2009) (although stop of defendant was properly based on reasonable suspicion of drug activity, no reasonable safety concern supported a frisk). On balance, we conclude that the facts known to the police at the time they ordered the defendant to put his hands on the car sufficed to support a stop and a patfrisk for weapons.

a. Reasonable suspicion and the stop. The stop of the defendant in the constitutional sense did not occur until Walsh directed the defendant and his companions to place their hands on top of the car.⁶ See Commonwealth v. DePeiza, supra at 370-371, 868 N.E.2d 90 (no seizure when police stepped from unmarked vehicle and engaged in conversation with defendant); Commonwealth v. Gomes, supra at 510, 903 N.E.2d 567 (no seizure of defendant until officer conducted patfrisk); Commonwealth v. Martin, 73 Mass.App. Ct. 526, 530-532, 899 N.E.2d 869 (2009) (same). Prior to that time, the police neither commanded the defendant to stop nor displayed any indicia of authority to signal that he was not free to leave. See Commonwealth v. Williams, 422 Mass. 111, 116, 661 N.E.2d 617 (1996) (merely following without activating lights and siren not a stop in the constitutional sense); Commonwealth v. Sykes, 449 Mass. 308, 314, 867 N.E.2d 733 (2007) (stop did not occur until police left cruiser and began chasing defendant). Indeed, the officers had no interaction with the defendant at all until he and Rosado-Lara emerged from the building.

By the time the officers commanded the defendant to place his hands on the car, specific and articulable facts supported a reasonable suspicion that a drug deal was occurring and that a threshold detention and further inquiry were in order. See Commonwealth v. Santaliz, 413 Mass. 238, 242, 596 N.E.2d 337 (1992) ...