Commonwealth v. Bishop

COMMONWEALTH v. JEREMY BISHOP.

19-P-216

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

January 8, 2020

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this interlocutory appeal, we address whether, in the context of a controlled undercover operation wherein a suspect agreed to sell his illegal firearm to a confidential informant, there was probable cause to arrest the defendant, whose sole known connection to the aforementioned operation was his presence as a passenger in the car owned and driven by the suspect to the agreed upon place and at the agreed upon time. Because the defendant's presence did not give rise to probable cause to arrest him, we affirm the Superior Court judge's order allowing the defendant's motion to suppress statements made subsequent to his arrest.

Background. We set forth the facts as found by the judge, supplemented only by undisputed facts in the record that were implicitly credited by her. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436-438 (2015); Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

In May 2016, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) special agent Shervin Dhanani¹ began working with a confidential informant (CI), who informed Agent Dhanani that he had purchased firearms from a New Hampshire resident. The CI did not know this individual's name, but the CI provided Agent Dhanani with a physical description of the individual and the telephone number the CI previously had used to arrange a purchase.

Agent Dhanani was able to connect the telephone number to Arthur Carriel, who had an address in Nashua, New Hampshire. Subsequently, Agent Dhanani began surveillance of the Nashua address and observed Carriel driving a white Mercedes. Also, from a photograph, the CI identified Carriel as the individual from whom he previously had bought firearms. The defendant was not seen during the surveillance of Carriel, and the CI did not mention the defendant to officers.²

In August 2016, Agent Dhanani asked the CI to arrange to purchase a firearm from Carriel.³ While in Agent Dhanani's presence and with the speakerphone feature on, the CI used his cell phone to call Carriel at the aforementioned telephone number; during the telephone call, the CI agreed to purchase a MAC-11 firearm for $400 and a laser sight from Carriel. The exchange would take place the next day. During the telephone call, Carriel explained that he needed to obtain the MAC-11 from "my boy," who (according to Carriel) would be getting out of work around 4:00 P.M.⁴

The next day, the CI again called Carriel, who confirmed that he would try to meet with his "boy," who would be getting out of work by 4:30 P.M., and that Carriel would then head down to Boston to meet with the CI. Around 4:30 P.M., Agent Dhanani, posing as the CI and using the CI's cell phone, texted Carriel to arrange the time and place for the planned sale. They agreed to meet at a specific location in Dorchester around 7:00 P.M. As found by the judge, "Later, again by text, Carriel told Agent Dhanani that his boy did not come thru on the MAC-11, but that [Carriel] had an AK that he would be willing to sell . . . for$1000 along with the laser sight for an additional $200."⁵ Agent Dhanani agreed.

Around 7:00 P.M., Agent Dhanani, along with other ATF agents and Boston police officers, who had stationed themselves around the agreed-upon meeting area, saw Carriel's white Mercedes arrive. Carriel texted, "Yeah I'm here." Agent Dhanani texted back that he was "coming down."

Agent Dhanani and the other officers⁶ converged on the white Mercedes and ordered the two occupants out of the car. A few seconds after the exit order, an ATF agent smashed the vehicle's rear window. Carriel, who was in the driver's seat, and the defendant, who was in the front passenger seat, were removed from the vehicle, placed on the ground, and handcuffed. At that time, as Agent Dhanani testified, he had no idea who the defendant was or what role, if any, the defendant played in the transaction. There was no evidence that the defendant acted in a suspicious manner or made any gestures that caused officers to be concerned for their safety. A search of the defendant yielded no weapons or ammunition.

A search of the vehicle yielded a Glock semiautomatic nine-millimeter firearm, which was found in the driver's side door pocket. Agent Dhanani testified that when the driver's side door was closed, the contents of the door pocket were not visible from the passenger seat. A laser sight was also found in the interior of the car. A "Zastava" (an AK-47 type firearm), two magazines, and ammunition were found in the trunk.⁷ Carriel and the defendant were taken to the police station, booked, and interviewed.

The defendant subsequently was charged with (1) two counts of carrying a firearm without a license, pursuant to G. L. c. 269, § 10 (a); (2) two counts of possession of ammunition without a firearm identification card, pursuant to G. L. c. 269, § 10 (h) (1); and (3) one count of carrying a loaded firearm without a license, pursuant to G. L. c. 269, § 10 (n). He moved to suppress the statements he made to the police after his arrest. After conducting an evidentiary hearing, the judge allowed the defendant's motion to suppress his statements.⁸

Discussion. In our review of a judge's decision on a motion to suppress, we adopt the judge's factual findings absentclear error. Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). We then determine independently the correctness of the judge's application of constitutional principles to the facts as found. Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007). The Commonwealth bears the burden of proving that the arrest was supported by probable cause. See Commonwealth v. Chown, 459 Mass. 756, 763 (2011).

On appeal, the Commonwealth does not quarrel with the judge's factual findings but contends that, based on those findings, there was probable cause to arrest the defendant. Probable cause to arrest exists "'where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested had committed . . . an offense' for which arrest is authorized." Commonwealth v. Cartright, 478 Mass. 273, 283 (2017), quoting Commonwealth v. Jewett, 471 Mass. 624, 629 (2015). Probable cause to arrest requires more than mere suspicion but something less than evidence sufficient to sustain a conviction. Jewett, 471 Mass. at 629. In assessing whether probable cause to arrest exists, we "deal with probabilities" and the "practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act" (citation omitted). Id.

The Commonwealth maintains that the defendant was arrested after the exit order⁹ when he was placed on the ground and handcuffed.¹⁰ At that moment, the Commonwealth further contends, there was probable cause to arrest him on the basis that a prudent person would believe that the defendant was a coconspirator with Carriel in the illegal sale of the AK-47 because the defendant was a passenger in Carriel's car when Carriel arrived at the prearranged time and place of the planned illegal firearm sale. More specifically, the Commonwealth contends that it would be logical to infer that the defendant was the lookout for the firearm sale and the individual that Carriel referred to as his "boy," from whom Carriel had tried to obtain the MAC-11.

The Commonwealth's theory, however, ignores the evidence, and the judge's findings, that Carriel's "boy" "fronted" and could not or would not provide the MAC-11 and that Carriel intended, instead, to sell his own AK-47. Contrary to the Commonwealth's argument, there is nothing about the timing of Carriel's meeting with his "boy" earlier that afternoon in New Hampshire when Carriel tried but failed to obtain the MAC-11 and his arrival in Dorchester at 7:00 P.M. that suggests his "boy" travelled with him to the sale location. At no time was there any discussion or mention that Carriel's "boy" would be coming to Boston. Moreover, neither the communications between Carriel and the CI nor the text messages exchanged with Agent Dhanani suggest that Carriel's "boy" would attend the meeting at all, much less attend when the object of the exchange became Carriel's own AK-47. The defendant was not seen during the surveillance of Carriel, and the CI never mentioned the defendant; indeed, Agent Dhanani testified that he had no idea who the defendant was when he was arrested, or even whether he played any role in the...