Commonwealth v. Rodriguez

COMMONWEALTH v. BEIDANET RODRIGUEZ.

14-P-930

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

July 14, 2015

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

A Boston Municipal Court judge allowed the defendant's motion to suppress, ruling that the police did not have reasonable suspicion to stop the defendant's car. The Commonwealth appeals, citing Commonwealth v. Stephens, 451 Mass. 370 (2008), and arguing the stop was justified. We affirm.

Background. We supplement the facts found by the motion judge, with "uncontroverted testimony from the suppression hearing." Commonwealth v. Clark, 65 Mass. App. Ct. 39, 40 (2005). On July 21, 2012, five officers from the Boston police department's drug control unit (DCU) were conducting a surveillance at a Walgreens parking lot near Egleston Square in the Roxbury section of Boston. One of the officers, Officer Frank Colon, described the area as one where there had been a number of drug transactions, including ten arrests that he had made in the Walgreens parking lot, as well as many citizen complaints about drug activity. At approximately 6:00 P.M., the police officers observed a black sedan pull into the parking lot. The defendant was driving the sedan while speaking on a cellular telephone, and apparently looking for someone, while keeping an eye on the pedestrian and vehicular traffic.

After about five minutes, a black male, also on a cell phone, walked toward the car. The defendant waived to him, mouthing words that Colon believed were to the effect of, "I'm over here." The man entered the car on the passenger side and the defendant drove away, travelling for about five minutes and eventually stopping at 99 Walnut Park.¹ The defendant and the man remained in the car parked at 99 Walnut Park for as many as five minutes, appearing to be having a conversation. The police officers did not notice either person make any furtive movements or gestures. At some point, the man got out of the car and entered 99 Walnut Park, where he remained for the time that the officers continued their surveillance.

Believing they had observed a street-level drug transaction, a "ride to nowhere," that did not last more than ten minutes, the officers followed the black sedan after it had reentered traffic and pulled it over near an intersection. The defendant responded to the question of where she was coming from, in a nonagitated manner, saying that she was coming from Walgreens and that she had just given a friend a ride, dropping him off at his house. One of the officers later asked the defendant whether she had drugs on her; the defendant replied that the officers were welcome to search the car. A search of the car revealed Oxycontins and empty pill bottles in a crumpled Walgreens bag in the glove compartment. The defendant was charged with possession of a class B substance with intent to distribute, in violation of G. L. c. 94C, § 32A(a), and a school zone violation, under G. L. c. 94C, § 32J.

After the hearing, the motion judge described the case as a "close call," given the police officers' decades of experience, but concluded that the police officers had stopped the vehicle essentially on a "hunch." Specifically, the judge disagreed with the police officers' characterization of the defendant's trip from Walgreens to 99 Walnut Park as a "ride to nowhere." The judge also noted that there was "no exchange observed. Neither person [was] known to the officers and therefore not someone who would be under surveillance."

Discussion. In reviewing a ruling on a motion to suppress, "we accept the motion judge's subsidiary findings of fact absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law." Stephens, 451 Mass. at 381. "A police officer may stop a vehicle in order to conduct a threshold inquiry if he has reasonable suspicion that the occupants have committed, are committing, or are about to commit, a crime." Commonwealth v. Moses, 408 Mass. 136, 140 (1990), quoting from Commonwealth v. Wren, 391 Mass. 705, 707 (1984). However, "[r]easonable suspicion may not be based on good faith or a hunch, but on specific, articulable facts and inferences that follow from the officer's experience." Commonwealth v. Franklin, 456 Mass. 818, 823 (2010) (citation omitted).

Here, we agree with the judge's conclusion that the following four factors, by themselves, did not give rise to reasonable suspicion: (1) the defendant's car was parked in an area of the Walgreens parking lot away from the heaviest traffic, (2) the defendant mouthed words, flagging down a man who entered her car, (3) the destination of 99 Walnut Park was within walking distance, and (4) the man arrived at the Walgreens parking lot from the general direction of 99 Walnut Park. Each is a valid factor, one that would contribute to a determination that there was reasonable suspicion. However, none of the other events leading up until the stop contribute that something more that could elevate a "hunch" to reasonable suspicion, which distinguishes this case from Stephens. Here, the police possessed no prior information about either person participating in the alleged drug transaction. Contrast Commonwealth v. Kennedy, 426 Mass. 703, 704 (1998) (one of the individuals observed by the police officers was a known drug dealer); Commonwealth v. Stewart, 469 Mass. 257, 261 (2014) (police officer familiar with defendant who had been previously arrested for distributing narcotics). Nor was there anything suspicious about the defendant's vehicle. Contrast Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 347 (2010) (vehicles surveyed were rentals, commonly used in drug transactions, with out-of-State plates). The way the defendant flagged down the man had none of the suspicious, furtive, or unusual characteristics that weighed in favor of the legality of the stop in other cases. Contrast Stephens, 451 Mass. at 373 (codefendant in first vehicle parked in front of a second vehicle, at which point codefendant nodded his head indicating to the defendant in the second car to follow to the eventual meeting place); Commonwealth v. Sweezey, 50 Mass. App. 48, 49 (2000) (individuals in the first car stopped, flashed lights, and the second car...