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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Kennedy, 42 Mass.App.Ct. 668 (1997)
Appeals Court of Massachusetts, Essex.
No. 96‑P‑777.
Argued
Decided
Further Appellate Review Granted
Edward B. Gaffney, Wayland, for defendant.
Marcia H. Slingerland, Assistant District Attorney,
for the Commonwealth.
Before
LAURENCE, Justice.
Convicted
of cocaine possession and conspiracy to violate the controlled substances laws,
James Kennedy assigns as error a District Court judge's denial of his motion to
suppress the drugs seized from his person during a police search after his
warrantless arrest. At the hearing on
that motion, the following evidence was presented, all by the arresting
While
parked about forty yards from the liquor store, the officer saw a car being
driven, as it turned out, by Kennedy (an individual then unknown to the
officer) pull up and stop at the curb in front of the store. A man standing on the sidewalk walked over to
the passenger side of Kennedy's car. The
officer recognized the man as Ephraim Morales, who "had been the recipient
[sic ] of many complaints in the area
[a]nd ... had been identified as a person who had been arrested previously for
narcotic sales." Morales leaned
down and into the open passenger‑side window. "It appeared [to the officer that] words
were exchanged" between Kennedy and Morales, although the officer could
not hear any of the words. After the
brief conversation, "moments later," Morales "ran away"
down Park Street, leaving the area. He
returned "a minute" later to the passenger side of Kennedy's vehicle. Morales then "reached in, to the
operator. [The officer] could see his
hand going over. It appeared something
had been exchanged" when "the driver reached over" to Morales,
although the officer did not in fact see any objects being exchanged. Morales then "walked away and
[Kennedy's] motor vehicle drove off."
"Based
on [his] knowledge, education, training and experience ... with those types of
sales", the officer concluded that he had just witnessed "activities
... [c]onsistent with a narcotics sale," particularly because of Morales's
involvement. Pursuing Kennedy's car, the
officer pulled it over within a block, ordered Kennedy out (without asking for
his license or registration), frisked him, discovered in Kennedy's pocket a
glassine bag containing rocks of crack cocaine, and arrested him. The officer acknowledged that he had stopped
Kennedy's car solely because he "believed that a narcotics sale had just
occurred." He also stated that he
had frisked Kennedy "[f]or [42
Mass.App.Ct. 670] safety
purposes" because he "was concerned with weapons ... a fear of all
police officers, especially [because of] the way [Kennedy] had acted, fidgety,
a little apprehensive, nervous with my approach."
Upon being
caught with the drugs, Kennedy had immediately offered to identify his supplier
and the drug stash. After obtaining
representation, however, he decided to attack the warrantless search as
invalid, based upon neither reasonable suspicion nor probable cause. At the hearing on Kennedy's motion to
suppress, the prosecutor asserted that the officer's testimony evinced an
investigatory stop supported by reasonable suspicion, under the rule of Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), and its progeny.
Without explicitly ruling on the propriety of the stop, the motion judge
rejected the contention that the officer's questionless frisk of Kennedy was
safety‑inspired. She found that it
"was not a protective search for weapons for the officer's safety"‑‑properly
discrediting the officer's factually‑devoid claim to have frisked Kennedy
because of unarticulated fear for his safety, compare Commonwealth v. Gutierrez, 26 Mass.App.Ct. 42, 47, 522 N.E.2d 1002
(1988)‑‑but was rather conducted solely "for the purpose of
searching [Kennedy] for drugs."
The judge
declined to suppress the product of the frisk, ruling that the officer had
probable cause to arrest Kennedy, which justified the discovery of the cocaine
in the course of a valid search incident to arrest. The motion judge summarized her findings and
ruling as follows:
"The activity [testified
to by the officer] fit a pattern where a Seller is on the street, is approached
by a prospective buyer, brief conversation takes place, the Seller moves off
quickly, presumably to a nearby 'stash' and comes back where a quick encounter
and exchange takes place and the buyer takes off.... Based on the officer's extensive experience
in street level narcotics sales, his observations of a known drug dealer
approaching a car that pulls up, followed by a brief conversation, the drug
dealer quickly going around the corner and quickly coming back and the quick
exchange between dealer and operator and the driver immediately leaving,
warranted the officer to conclude that he was observing a classic street level
drug transaction. Even though the [officer] [42 Mass.App.Ct. 671] did not see the actual drugs in the
dealer's hand, or the money exchange hands, the quick, furtive gestures bespoke
a drug sale. While the actions might
have been susceptible of other interpretations, including innocent ones, where
the person on the street was a known drug dealer in a high drug area, the
conclusion drawn by the officer went well beyond a suspicion or a hunch to
reach a level of probable cause that a drug sale had occurred before him giving
the officer the right to stop, search and arrest the defendant without a
warrant."
As
intuitively persuasive as the judge's conclusions appear, we are constrained to
agree with Kennedy that those conclusions transcended the evidence and that his
motion to suppress should have been allowed.
Probable cause to arrest Kennedy‑‑cause resting on
"facts and circumstances within the knowledge of the [arresting] police
[officer sufficient] ... to warrant a prudent person in believing that the
individual arrested has committed or was committing an offense," Commonwealth v. Santaliz, 413 Mass.
238, 241, 596 N.E.2d 337 (1992)‑‑did not exist on this record. (FN1)
We
note initially that the record to be evaluated on appellate review must be
reconstituted by disregarding several of the subsidiary findings of fact which,
notwithstanding the deference we accord the motion judge in such matters, are
clearly erroneous because they are not supported by the officer's testimony or
reasonable inferences drawn therefrom.
See Commonwealth v. Clermy,
421 Mass. 325, 328, 656 N.E.2d 1253 (1995).
There was no testimony by the officer as to any "pattern"
characterizing street level drug sales, nor any evidence adduced regarding what
constituted a "classic street level drug transaction"; the judge could not take judicial notice of
such matters since their existence is not indisputably true or of common
knowledge within the community. See
Liacos, Massachusetts Evidence § 2.6, at 39 (6th ed.1994). The testimony did not support the finding
that the officer himself had ever arrested
[42 Mass.App.Ct. 672] Morales,
or that Morales was a "known drug dealer," since nothing indicated
that his hearsay "arrests for narcotic sales" had ever resulted in
any convictions or even indictments.
Nothing in the officer's testimony justified the characterization that
the "reaching" activity by Morales and Kennedy was either
"quick" or "furtive"‑‑indeed, the actions of
the two, in broad daylight in the middle of a clear day on a public street in
the unobstructed line of vision of a nearby marked police car and a uniformed
police officer, appear to have been open, unconcealed, even flagrantly exposed
to view. Contrast Commonwealth v. Savageau, 42 Mass.App.Ct. 518, 518‑519, 678
N.E.2d 1193 (1997) (officers viewed suspects through binoculars from unmarked
police car).
Most
egregiously lacking in evidentiary support, and the crux of the error in this
case, is the motion judge's finding that there had been a "quick exchange
between dealer and operator." On
direct examination, the officer testified only that "[i]t appeared
something had been exchanged" as a result of the Morales‑Kennedy
reachings. On cross‑examination,
the officer readily admitted that he did not in fact see anything being
exchanged between the two and that, if anything had been exchanged, it might,
for all he knew, have been a totally innocent object associated with an
entirely lawful activity.
On
the basis of the factual record thus purged, we review the motion judge's
conclusion that the circumstances were sufficient to constitute probable cause,
by independently analyzing the correctness of the judge's application of
pertinent constitutional principles to that record. See
Commonwealth v. Alvarado, 420 Mass. 542, 544, 651 N.E.2d 824 (1995). We conclude that the warrantless search of
Kennedy was not founded on probable cause but rather on only " 'a
suspicion of criminal involvement,' "
Commonwealth v. Santaliz, 413 Mass. at 241, 596 N.E.2d 337, based on
circumstances that neither individually nor in combination objectively
justified the conclusion that, at the moment of arrest, Kennedy had engaged in
illicit drug activity. See id. at 242, 596 N.E.2d 337.
The
fact that Kennedy, previously unknown to the police, stopped in a "high
crime, high drug area," which was also a frequented public way bordered by
commercial establishments inviting public entry, does not in itself arouse
suspicion or even justify a threshold inquiry.
See Commonwealth v. Cheek, 413
Mass. 492, 496‑497, 597 N.E.2d 1029 (1992); Brown v. Texas, 443 [42 Mass.App.Ct. 673] U.S. 47, 52, 99 S.Ct. 2637, 2641, 61
L.Ed.2d 357 (1979). Such an occurrence
was particularly unremarkable here, since Kennedy's act of pulling over to the
curb of a public street at mid‑day was not itself out of the
ordinary. Contrast Commonwealth v. Silva, 366 Mass. 402, 407, 318 N.E.2d 895 (1974)
(car found apparently disabled late at night in isolated area);
Commonwealth v. Almeida, 373 Mass. 266, 271, 366 N.E.2d 756 (1977)
(suspect sitting alone in car in high crime district late at night with motor
running in a private parking space); Commonwealth v. Moynihan, 376 Mass. 468,
470‑471, 381 N.E.2d 575 (1978) (car parked alone in normally deserted
parking lot); Commonwealth v. Wren, 391 Mass. 705, 706,
463 N.E.2d 344 (1984) (van not recognized by neighbors, parked with engine
running, on dead‑end street in quiet residential neighborhood);
Commonwealth v. Egan, 12 Mass.App.Ct. 658, 661, 428 N.E.2d 342
(1981) (car in isolated, untraveled area late at night); Commonwealth v. Montgomery,
23 Mass.App.Ct. 909, 909‑910, 499 N.E.2d 853 (1986) (car driving in
shopping center at extremely slow speed in early morning hours).
Further,
Kennedy himself did nothing that could be characterized as inherently
suspicious or furtive. Contrast Commonwealth v. Anderson, 366 Mass.
394, 400, 318 N.E.2d 834 (1974) (suspect walked briskly away from police,
looking back over his shoulder several times at officer); Commonwealth v. Silva, 366
Mass. at 407, 318 N.E.2d 895 (suspect made gesture as if to conceal something
in his automobile); Commonwealth v. Moses, 408 Mass. 136,
140, 557 N.E.2d 14 (1990) (suspect avoided eye contact with police and ducked
beneath dashboard); Commonwealth v. Alvarado, 420 Mass. at
549, 651 N.E.2d 824 (suspect attempted to conceal objects); Commonwealth v. Modica, 24
Mass.App.Ct. 334, 338, 508 N.E.2d 882 (1987) (suspect glanced around several
times as if to see whether anyone was watching as he carried box in middle of
night across unlighted, snow‑covered yard); Commonwealth v. Tompert, 27
Mass.App.Ct. 804, 805, 544 N.E.2d 226 (1989) (as officer approached, interior
light of car went off and occupants began moving "frantically" and
continually looking back at the officer); Commonwealth v. Rivera, 33 Mass.App.Ct.
311, 315, 599 N.E.2d 245 (1992) (suspect looked around when trooper put his
lights on, bending forward as if to place something on the floor). To the extent the motion judge inferred a
furtive attempt to conceal a drug transaction from the fact that the officer
could not see whether anything was in fact being exchanged, the inference must
be rejected as unacceptably question‑begging in the [42 Mass.App.Ct. 674]
absence of testimony by the officer
of any apparent attempt by Kennedy or Morales to conceal anything.
Kennedy's
"nervousness" when stopped was not a basis on which to establish
probable cause, see Commonwealth v.
Gutierrez, 26 Mass.App.Ct. at 46, 522 N.E.2d 1002, particularly since it
was not described as unusual or extreme, contrast United States v. Espinoza‑Seanez, 862 F.2d 526, 529 (5th Cir.1988)
(defendant was "nervous and sweating profusely"), and was a not
uncommon reaction of even the innocent when confronted by officers of the
law. See United States v. White, 890 F.2d 1413, 1418 (8th Cir.1989);
United States v. Millan‑Diaz, 975 F.2d 720, 722 (10th
Cir.1992) (it is "common knowledge that most citizens ... when confronted
by a law enforcement officer ... are likely to exhibit some signs of
nervousness"); United States v. Fernandez, 18 F.3d 874,
879 (10th Cir.1994) ("unusual nervousness" during traffic stop of a
driver previously unknown to police does not give rise to reasonable
suspicion).
The
fact that Kennedy appeared, briefly, to be associated with another individual,
Morales, who was suspected of criminal activity would not be ground to arrest
him even if there were probable cause to believe‑‑as there was not
here‑‑that the other individual had committed a crime.
Commonwealth v. Dirring, 354 Mass. 523, 531, 238 N.E.2d 508 (1968).
Commonwealth v. Frazier, 410 Mass. 235, 240, 571 N.E.2d 1356
(1991). Morales's purported record of
previous arrests for narcotic sales‑‑based upon his having been
"identified" by persons unknown as having been arrested by persons
unknown at times unknown‑‑is, in any event, of questionable
relevance to the probable cause equation for two reasons. First, there was no indication that the
arrests were recent rather than ancient.
See Commonwealth v. Germain,
396 Mass. 413, 418 n. 7, 486 N.E.2d 693 (1985); Commonwealth v. Allen, 406
Mass. 575, 579, 549 N.E.2d 430 (1990).
More significantly, the bare fact of a prior arrest, or arrests, which
did not result in convictions, or at least indictments, see Brinegar v. United States, 338 U.S. 160, 173‑174, 69 S.Ct.
1302, 1309‑1310, 93 L.Ed. 1879 (1949), is of doubtful‑‑if any‑‑reliability
for probable cause purposes. Cf. Commonwealth v. Rojas, 403 Mass. 483,
486, 531 N.E.2d 255 (1988); Commonwealth v. Mejia, 411 Mass. 108, 111‑112,
579 N.E.2d 156 (1991); Commonwealth v. Malone, 24 Mass.App.Ct.
70, 72, 506 N.E.2d 163 (1987); Commonwealth v. Motta, 34 Mass.App.Ct.
921, 922, 609 N.E.2d 1228 (1993). Such
conclusory, undetailed references to previous arrests[42 Mass.App.Ct. 675] amount to little more than an assertion of a
person's bad reputation for criminal conduct, which is so "unilluminating
... that it is entitled to no weight in appraising" a probable cause
determination. Spinelli v. United States, 393 U.S. 410,
414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969).
See United States v. Pearce,
356 F.Supp. 756, 758 (E.D.Pa.1973).
In
sum, none of the testified‑to factors attending the officer's
surveillance by itself was sufficient to establish probable cause for arrest
and search. Moreover, even viewing the
facts and circumstances as described by the officer in sequence and in their
totality‑‑objectively, nontechnically, and through the eyes of an
experienced narcotics investigator,
Commonwealth v. Santaliz, 413 Mass. at 242, 596 N.E.2d 337;
United States v. Davis, 458 F.2d 819, 821‑822 (D.C.Cir.1972)‑‑we
do not perceive a situation affording probable cause to conclude that illegal
drug activity had occurred.
The
motion judge appears to have been decisively impressed by the officer's
professed experiential ability to interpret the Kennedy‑Morales reaching
activity as a drugs‑for‑money exchange, notwithstanding the
officer's conceded failure to see anything being exchanged or any actual
transaction taking place. The
Commonwealth has not, however, cited, and we have been unable to find, any authority
that recognizes as a permissible factor in the probable cause calculus the
inference by a law enforcement officer‑‑however massive his
training, expertise, and experience‑‑that he has witnessed an
illegal drug transaction despite never actually seeing any identifiable object
being passed or received. Every case in
the Commonwealth of which we are aware in which probable cause has been found
in similar circumstances has involved police observation of some tangible
object, even if not readily identifiable,
actually being handed over or taken by one or both of the individuals
participating in the suspect activity.
See, e.g., Commonwealth v. Ortiz,
376 Mass. 349, 350, 353‑354, 380 N.E.2d 669 (1978); Commonwealth v. Santaliz,
413 Mass. at 240‑241, 596 N.E.2d 337; Commonwealth v. Alvarado, 420 Mass. at
551‑552, 651 N.E.2d 824; Commonwealth v. Rivera, 27 Mass.App.Ct.
41, 42, 45‑46, 534 N.E.2d 24 (1989); Commonwealth v. Johnson, 32 Mass.App.Ct.
355, 358, 589 N.E.2d 328 (1992); Commonwealth v. Benitez, 37 Mass.App.Ct.
722, 723‑724, 643 N.E.2d 468 (1994). Commonwealth v. Savageau, supra at 519,
678 N.E.2d 1193. Cf. Commonwealth v. Ellis, 12 Mass.App.Ct.
476, 477, 426 N.E.2d 172 (1981) (officer actually saw object being passed by
person standing [42 Mass.App.Ct. 676] outside defendant's automobile and
defendant returning something from inside, but no probable cause to arrest for
suspected drug sale in the absence of other evidence to color the transaction).
The
only authorities we have uncovered dealing with police interpretation of events
witnessed during surveillance as an apparent exchange of drugs for money in a
high crime area, notwithstanding police failure to see anything being
exchanged, have suppressed the fruits of the subsequent search, because the
arrest resulting from such an inference was unsupported by probable cause. See
United States v. Gonzalez, 362 F.Supp. 415, 422 (S.D.N.Y.1973);
People v. Ratcliff, 778 P.2d 1371, 1378 (Colo.1989);
Commonwealth v. Hunt, 280 Pa.Super. 205, 210‑211, 421 A.2d 684
(1980). Each of these cases dealt with
factual scenarios similar to that here, and all held that police observations
of an apparent exchange of unseen objects, even in public areas plagued by drug
trafficking, between an unknown defendant and (in Gonzalez and Ratcliff )
a known or reputed drug dealer, and unaccompanied by any unusual or markedly
furtive actions, had little if any rational tendency to be incriminating if the
officer could not actually see what, if anything, had been exchanged.
We
agree with the holdings of those decisions.
A cogent rationale for such outcomes can be seen in 2 LaFave, Search and
Seizure § 3.2(c), at 41‑42 (3d ed.1996), explaining that the appropriate
application of the factor of police training and experience requires more than
a simple assertion of its existence and relevance:
"[T]he
probable cause determination must ultimately be made by a judicial officer, who
is not an 'expert' in matters of law enforcement, and ... consequently it is
incumbent upon the arresting or searching officer to explain the nature of his
expertise or experience and how it bears upon the facts which prompted the
officer to arrest or search. For
example, if an officer at a hearing on a motion to suppress were to say that he
made the arrest because he saw what he as an expert recognized as a marijuana
cigarette, this is not a showing of probable cause. Under the probable cause standard, it must
'be possible to explain and justify the arrest to an objective third party,'
and this is not accomplished by a general[42
Mass.App.Ct. 677] claim of expertise. On the other hand, if the officer testifies
fully concerning his prior experiences with marijuana cigarettes and explains
in detail just how it is possible to distinguish such a cigarette from other
hand‑rolled cigarettes, this testimony cannot be disregarded by the judge
simply because it involves expertise not shared by the judge." (Footnotes omitted.)
These observations accord with the Supreme Judicial Court's
admonition that, for probable cause purposes, the significance of facts
meaningful to a trained law enforcement officer but not apparent from common
knowledge and experience must be explained by disclosing both the facts and the
officer's inferential process based thereon.
See Commonwealth v. Taglieri,
378 Mass. 196, 199‑201, 390 N.E.2d 727 (1979). Compare
Commonwealth v. Figueroa, 412 Mass. 745, 751, 592 N.E.2d 1309 (1992)
(trooper's seizure of brown paper bag wrapped inside plastic bag found
partially concealed in rear window wall panel of defendant's car supported by
probable cause in part because of trooper's testimony about his previous
experiences of discovery of illegal drugs in similar location);
Commonwealth v. Lotfy, 8 Mass.App.Ct. 126, 130‑132, 391 N.E.2d
1249 (1979) (probable cause finding firmly buttressed by inferences drawn by
investigating officer that activities observed were consistent with use of
defendant's premises for illegal gambling, based on his prior experiences with
methods of conducting illegal gaming operations; Taglieri distinguished
because of "sketchy [factual] information" about police experience
there);
Commonwealth v. Blatz, 9 Mass.App.Ct. 603, 604‑606, 403 N.E.2d
945 (1980) (probable cause for warrantless search yielding drugs contained in a
particular kind of manila envelope supported by police testimony about the
manner in which drugs were traded at retail and the characteristic use of such
envelopes in that trade); Commonwealth v. Lewis, 15 Mass.App.Ct.
617, 619‑620, 446 N.E.2d 1117 (1983) (reasonable suspicion to stop
defendant's van containing bales of marihuana supported by inferences of
experienced investigator of drug smuggling based on his previous involvement in
at least four major interstate smuggling operations with similar features);
United States v. Chadwick, 393 F.Supp. 763, 768‑769
(D.Mass.1975), aff'd, 532 F.2d 773 (1st Cir.1976), aff'd, 433 U.S. 1, 97 S.Ct.
2476, 53 L.Ed.2d 538 (1977) (where the prosecution claimed that the
unelaborated experience of a Federal agent enabled them readily to detect that
Chadwick [whose car [42 Mass.App.Ct.
678] they searched after he had put
into it a footlocker he had just taken from a man he met at the train station
who the agents were sure was transporting drugs in the footlocker] was a drug
courier; the District Court rejected
this as representing a subjective rather than the requisite objective standard
of probable cause, because the agent's purported experience with drug couriers
was supported by no explanation of what there was about Chadwick in particular
that made it appear he was one, leaving it a matter of speculation whether he
was a courier or simply a person who had picked up a friend at the train
station).
Here, there was no description of the nature of the officer's
past experience in "street level drug arrests," or any explanation of
how his claimed expertise allowed him to draw the reasonable inference from
what he observed that Kennedy was engaged in illegal activity. We acknowledge that the concept of probable
cause is "fluid," Illinois v.
Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983), and
that it must be applied in a manner which accommodates the "practical
considerations of everyday life on which reasonable and prudent [persons], not
legal technicians, act." Brinegar v. United States, 338 U.S. at
175, 69 S.Ct. at 1310. We cannot,
however, agree that the unique facts and circumstances of this case, as
reflected in the evidence at the suppression hearing, justified a finding of
probable cause to arrest Kennedy. To rule
otherwise would unduly exalt the significance of generalized police
expertise. It would essentially
transform the probable cause concept‑‑which is a
"compromise" standard that delicately balances "safeguard[ing]
citizens from rash and unreasonable interferences with privacy," on the
one hand, and "giv[ing] fair leeway for enforcing the law in the
community's protection," on the other,
Brinegar v. United States, 338 U.S. at 176, 69 S.Ct. at 1311‑‑from
an objective test, see Beck v. Ohio,
379 U.S. 89, 96‑97, 85 S.Ct. 223, 228‑29, 13 L.Ed.2d 142 (1964);
Commonwealth v. Hason, 387 Mass. 169, 175, 439 N.E.2d 251 (1982),
into a largely subjective one. As the
Federal District Court judge in Chadwick
opined, under such a subjective approach, probable cause is in the eyes of the
purportedly experienced beholder. 393
F.Supp. at 769.
Had Kennedy's motion to suppress been allowed, the
Commonwealth's case would have been lacking in essential proof. [42
Mass.App.Ct. 679] The judgments
must, accordingly, be reversed, the findings are set aside, and judgments shall
enter for the defendant.
So ordered.
(FN1.) The Commonwealth does not here
challenge the judge's ruling that the search of Kennedy could not be
legitimized as a protective frisk but rather relies entirely on the motion
judge's reasoning that the search was incident to a lawful arrest. It has raised no issue regarding the
propriety of the officer's investigatory stop of Kennedy under the Terry test of reasonable suspicion
based on specific and articulable facts.
Compare Commonwealth v. Silva,
366 Mass. 402, 406‑408, 318 N.E.2d 895 (1974); Commonwealth v. Willis, 415
Mass. 814, 817‑818, 616 N.E.2d 62 (1993).