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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, 426
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Marcia H. Slingerland, Assistant District Attorney,
for the Commonwealth.
Edward B. Gaffney, Wayland, for defendant.
Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY,
FRIED and MARSHALL, JJ.
MARSHALL,
Justice.
The
defendant, James Kennedy, was convicted of illegal possession of cocaine, G.L.
c. 94C, § 34, and conspiracy to violate controlled substances laws, G.L. c.
94C, § 40, and appealed. The
1. The
arresting officer testified to the following at the hearing on Kennedy's motion
to suppress. The officer was experienced
in narcotics investigations, focusing principally on street‑level drug
dealing, and had made some one hundred drug arrests with more than one‑half
of them involving cocaine. During the
last two years of his eight‑year career, the police officer had been
assigned to patrol a downtown area of
At
Based on
his "knowledge, education, training" and "previous experience
with those types of sales," the officer believed he had witnessed
activities "[c]onsistent with a narcotics sale," even though he had
not seen what had been exchanged. The
officer followed and pulled the vehicle over.
The officer observed Kennedy to be "nervous and fidgety." He ordered Kennedy out [426 Mass. 705] of the
vehicle, frisked him, (FN1) discovered a small glassine bag containing two
"rocks" of crack cocaine, and arrested him.
[1] 2. We
review initially the District Court judge's findings of fact. We do so having in mind the Appeals Court's
determination that some of those findings are clearly erroneous. In reviewing the denial of a motion to
suppress, we accept the motion judge's subsidiary findings of fact absent clear
error, and we view, with particular respect, the conclusions of law that are
based on them. See Commonwealth v. Welch, 420 Mass. 646, 651, 651 N.E.2d 392 (1995);
Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378
(1990).
[2] First,
Kennedy argues that the record does not support the judge's findings that the
activity observed occurring between Morales and Kennedy fit a
"pattern" or constituted a "classic street level drug
transaction." (FN2) The officer's description of the activities
that he witnessed, coupled with his testimony that based on his
"knowledge, education, training" and "previous experience with
those types of sales," the
officer believed he had witnessed activities "consistent with a narcotics sale," support the judge's finding
(emphasis supplied). The judge did not
simply repeat words and phrases drawn directly from the officer's admittedly
sparse testimony, but restated the testimony [426 Mass. 706] as a
foundation for her legal conclusion.
"Pattern" means a "model or an original used as an archetype " (emphasis
supplied). American Heritage Dictionary
of the English Language 1329 (3d ed.1992).
"Classic" is defined as "of a well‑known type " (emphasis supplied). Id.
at 352. One could reasonably infer from
the officer's testimony that he had compared the observed activity with a
general type of street‑level drug sale with which he was familiar, and
found it consistent.
Kennedy
objects, however, to more than the judge's labels for classifying the observed
behavior, and points out the absence of a description of a typical drug deal in
the officer's testimony. We prefer more
extended testimony on an officer's "inferential process," and here
the Commonwealth should have elicited from the officer more detail on what a
typical street level drug sale looks like from beginning to end.
Commonwealth v. Taglieri, 378 Mass. 196, 199‑201, 390 N.E.2d
727 (1979) (facts meaningful to 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).
In this case, the judge inferred from the officer's testimony that the
features of the specific example observed also described the general type. While more thorough testimony would have been
preferable, the judge's findings on this issue were entitled to deference
because they were sufficiently related by reasonable inference to the officer's
testimony. In reaching this conclusion,
we do not "unduly exalt the significance of generalized police
expertise." Commonwealth v. Kennedy, 42 Mass.App.Ct.
668, 678, 679 N.E.2d 572 (1997). The
pattern of street‑level drug sales represented by the Kennedy‑Morales
interaction is not so obscure or remote from the common knowledge of a District
Court judge that she could not supplement with her own inferences the officer's
testimony concerning his inferential process in identifying the observed
Kennedy‑Morales interaction as a drug sale.
[3] Next,
Kennedy objects to the judge's finding that Morales was a "known drug
dealer" because nothing indicated that his arrests for narcotic sales had
ever resulted in any convictions or even indictments. (FN3)
The officer knew that local residents had complained about Morales. The officer's slightly garbled [426 Mass. 707] testimony on Morales's arrests reasonably could be interpreted to
say that
other officers had identified Morales as having been arrested for
drug dealing. Defense counsel raised no
objection to this testimony on hearsay grounds.
Conviction or indictment are not the only reliable grounds for someone
to be known as or reputed to be a drug dealer.
The judge's finding that Morales was a known drug dealer has support in
the record and was not clear error.
Next,
Kennedy objects to the judge's finding that the reaching by Morales and Kennedy
toward each other was "quick" and "furtive." Testimony supported the judge's finding that
Morales had an initial "brief" conversation with Kennedy and
"quickly went down Park Street and returned within a minute." (FN4)
There was no testimony on how quickly Morales reached into the vehicle. The officer testified that after the reaching
activity, Morales walked away and the vehicle drove off. We think the record is sufficient to support
an inference that the entire sequence of events transpired quickly. We agree that there is no direct support in
the record to characterize the gestures as "furtive," except in so
far as furtiveness may be inferred from the quickness of the interaction.
[4]
Finally, Kennedy objects to the judge's finding that there had been "a
quick exchange between dealer and operator." On direct examination, the officer testified
that "[i]t appeared something had been exchanged." Defense counsel on cross‑examination
asked the officer, "[Is it] fair to say that you didn't see anything that
was exchanged, if anything was being exchanged?" The officer answered, "That's
correct." From this testimony, the
judge could reasonably infer that the officer observed an exchange of something
without being able to see what it was that had been exchanged.
[5][6][7]
After review of the judge's findings and the hearing transcript, we conclude
that most of the findings objected to have support in the record. "Reasonable inferences and common
knowledge are appropriate considerations for determining probable cause."
Commonwealth v. Welch, 420 Mass. 646, 650, 651 N.E.2d 392 (1995),
quoting Commonwealth v. Alessio, 377
Mass. 76, 82, 384 N.E.2d 638 (1979). See Commonwealth v. Byfield, 413 Mass. 426,
429‑430, 597 N.E.2d 421 (1992).
"Whether [426 Mass. 708] an inference is warranted or is
impermissibly remote must be determined, not by hard and fast rules of law, but
by experience and common sense." Commonwealth v. Arias, 29 Mass.App.Ct.
613, 618, 563 N.E.2d 1379 (1990), S.C.,
410 Mass. 1005, 572 N.E.2d 553 (1991), quoting Commonwealth v. Drew, 4 Mass.App.Ct. 30, 32, 340 N.E.2d 524
(1976). "An inference ... 'need
only be reasonable and possible; it need
not be necessary or inescapable.' " Commonwealth v. Merola, 405 Mass. 529,
533, 542 N.E.2d 249 (1989), quoting
Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). We have noted some of the judge's findings
that we do not find sufficiently supported by the testimony; we exclude these findings from our probable
cause analysis. As for most of the
criticized findings, the judge's inferences were derived reasonably from the
testimony and are entitled to deference.
[8] 3.
"[P]robable cause 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 has committed or was
committing an offense." Commonwealth v. Santaliz, 413 Mass. 238,
241, 596 N.E.2d 337 (1992), quoting
Commonwealth v. Storey, 378 Mass. 312, 321, 391 N.E.2d 898 (1979), cert.
denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980). Were we to scrutinize in isolation each of
the remaining facts and circumstances known at the time to the officer, we may
conclude that no individual fact or circumstance made it probable that a crime
had occurred or was occurring. We look,
however, at the "whole 'silent movie' disclosed to the eyes of an experienced
narcotics investigator." Commonwealth v. Santaliz, supra at 242,
596 N.E.2d 337. See Commonwealth v. Ortiz, 376 Mass. 349, 354, 380 N.E.2d 669
(1978). The factors in this silent movie
are similar to, although not identical with, those
supporting a probable cause finding in the
Santaliz case. Like that case, (1) a
vehicle pulled up and an interaction occurred between someone in the vehicle
and someone on the street, who apparently retrieved something before concluding
the interaction with the vehicle's occupant;
(2) in a place known by the police officer as a place of high incidence
of drug traffic; and (3) witnessed by an
experienced officer, who had made numerous drug arrests in the neighborhood and
considered the event as revealing a drug sale. Commonwealth v. Santaliz, supra
at 241, 596 N.E.2d 337. The fourth
factor noted in Santaliz was the
furtiveness of the persons observed, characterized by the concealment of the
item exchanged and the silence of the interaction. While we have not endorsed the judge's
finding of furtiveness, the [426
Mass. 709] quickness of the
interaction between Morales and Kennedy reasonably could be interpreted by the
officer as suspicious conduct, similar to the suspicious conduct of the
"furtive" transaction observed in the Santaliz case.
[9][10]
Otherwise, that case and this one differ in two ways. In this case, the officer had knowledge of
Morales as a person previously arrested as a drug dealer. (FN5)
The neighbors' and the store owner's complaints further pointed to
Morales as a drug dealer. This
information‑‑the identity of a main character in the silent movie‑‑made
for stronger grounds, compared to
Santaliz, for the officer's belief that a drug transaction had
occurred. Of course the mere association
with another individual suspected of criminal activity is insufficient,
standing alone, to support probable cause for arrest. See
Commonwealth v. Frazier, 410 Mass. 235, 240, 571 N.E.2d 1356 (1991);
Commonwealth v. Dirring, 354 Mass. 523, 531, 238 N.E.2d 508
(1968). Those cases are distinguishable
from this one for two reasons: first,
Kennedy's interaction with Morales appeared to the officer to be a crime
itself, not an incidental association;
and, second, Kennedy's association with Morales was not the only factor
supporting probable cause. We have often
recognized that a police officer's knowledge of the reputation for drug use or
drug dealing of persons interacting with a defendant, even though not
sufficient alone, is a factor to support probable cause to arrest the
defendant. See, e.g., Commonwealth[426 Mass. 710] v. Carrasco, 405 Mass. 316, 322, 540
N.E.2d 173 (1989); Commonwealth v. Valdez, 402 Mass. 65, 71,
521 N.E.2d 381 (1988); Commonwealth v. Hall, 366 Mass. 790, 792‑793,
323 N.E.2d 319 (1975); Commonwealth v. Avery, 365 Mass. 59, 63‑64,
309 N.E.2d 497 (1974); Commonwealth v. Anderson, 362 Mass. 74,
76‑77, 284 N.E.2d 219 (1972). It
is clear to us that the officer's knowledge of Morales's reputation in the
community as a drug dealer makes this case for probable cause stronger than the
similar case of Commonwealth v. Santaliz,
supra. (FN6)
[11][12]
Kennedy further complains that the officer did not see either an object or money
change hands in the apparent exchange testified to by the officer. The Appeals Court was 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." Commonwealth v. Kennedy, 42
Mass.App.Ct. 668, 675, 679 N.E.2d 572 (1997).
(FN7) This gap in the evidence,
the second difference between this case and
Commonwealth v. Santaliz, supra, undoubtedly weakens the case here for
probable cause, which otherwise appears stronger than the Santaliz case. We decline,
however, what seems to be an invitation in the Appeals Court's opinion to adopt
a per se rule that an officer must actually see an object exchanged in
circumstances such as these before he has sufficient evidence supporting
probable cause to arrest. First, small
quantities of drugs are easily concealed and move quickly in hand‑to‑hand
exchanges. See, e.g., Commonwealth v. Blatz, 9 Mass.App.Ct.
603, 605, 403 N.E.2d 945 (1980).
"In dealing with probable cause ... we deal with
probabilities. These are not technical;[426 Mass. 711] they are the factual and
practical considerations of everyday life on which reasonable and prudent men,
not legal technicians, act." Brinegar v. United States, 338 U.S. 160,
175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).
Accord Commonwealth v. Desper,
419 Mass. 163, 170, 643 N.E.2d 1008 (1994); Commonwealth v. Santaliz, supra at 242,
596 N.E.2d 337. Given the practical
consideration of the small size of packages of drugs, which are capable of
being concealed within a closed hand, we would critically handicap law
enforcement to require in every circumstance that an officer not only witness
an apparent exchange, but also see what object was exchanged, before making a
search incident to an arrest.
Furthermore, were we to make a rule that one particular piece of
evidence is an essential criterion to support probable cause, we are concerned
that we might create an incentive for officers to shade their testimony as to
the one piece of evidence required, in order to justify retroactively an arrest
or search that may be well supported by other facts and circumstances. (FN8)
Certainly whether the officer sees an object exchanged is an important
piece of evidence that supports probable cause, and its absence weakens the
Commonwealth's probable cause showing.
The other factors enumerated by the judge in this case, however, are sufficient
to overcome the officer's failure to actually see the object exchanged in the
drug transaction.
We
conclude that the judge's findings of fact, with the exceptions noted, are not
clearly erroneous. We view her probable
cause determination based thereon with respect.
We affirm the judge's denial of Kennedy's motion to suppress and affirm
the convictions.
So ordered.
(FN1.) The District Court judge concluded that
the officer stopped the car for the purpose of searching for drugs, and that
the pat down was not a protective search for weapons for the officer's
safety. Based on this conclusion, the
judge correctly ruled that the officer had to have probable cause to arrest the
defendant when he searched him.
(FN2.)
The judge's findings of fact state:
"The activity 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] 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."
(FN3.)
The Commonwealth concedes that the record does not support the judge's finding
that the officer himself had arrested Morales.
This clear error weakens but does not vitiate the finding that Morales
was known by the officer to have been arrested previously for drug dealing.
(FN4.)
"[Morales] leaned down. Then
moments later he walked, ran away.... It
appeared that words had been exchanged.
The individual on the sidewalk ran off.... Moments later, approximately a minute later,
he returned to the motor vehicle...."
(FN5.)
Regarding the relevance and reliability of testimony on Morales's prior
arrests, Brinegar v. United States,
338 U.S. 160, 173‑174, 69 S.Ct. 1302, 1309‑10, 93 L.Ed. 1879
(1949), supports the proposition that evidence of a prior arrest may be
admissible in a probable cause hearing, even if the same evidence would not be
admissible at trial. The Brinegar Court observed that, even at
trial such evidence is not excluded because it has no probative value, but
rather its inadmissibility at trial "illustrate[s] the difference in
standards and latitude allowed in passing upon the distinct issues of probable
cause and guilt." Id. at 174, 69 S.Ct. at 1310. Indeed, we have considered a defendant's
receipt of a package from someone who has had prior drug arrests a relevant
factor for probable cause purposes. See Commonwealth v. Ortiz, 376 Mass. 349,
350, 354, 380 N.E.2d 669 (1978).
Commonwealth v. Mejia, 411 Mass. 108,
111‑112, 579 N.E.2d 156 (1991), and
Commonwealth v. Rojas, 403 Mass. 483, 486, 531 N.E.2d 255 (1988), are not
helpful to Kennedy. Those cases question
the reliability of information from confidential, unidentified informants based
solely on their previous tips to police having led to arrests. In this case, other police officers, not
confidential informants, were the source of information of Morales's
arrests. More pertinent, the question of
how probative Morales's prior arrests may be to his current criminal conduct
bears no relationship, by analogy or otherwise, to the question of how
probative prior arrests based on an informant's tip may be of the informant's
veracity concerning information on other criminal conduct.
(FN6.) Community policing, for example,
involves looking to the community for help in formulating police initiatives in
neighborhoods. See Livingston, Police
Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97
Colum. L.Rev. 551, 564 (1997). Community
input to police appropriately may include community knowledge of known drug
users and dealers.
(FN7.)
Although the sufficiency of evidence to support probable cause was not an issue
in our recent decision, Commonwealth v.
Rivera, 425 Mass. 633, 682 N.E.2d 636 (1997), the facts of that case show
that officers arrested suspects after receiving complaints, conducting
surveillance, and seeing individuals approach an apartment door and make hand‑to‑hand
exchanges, without being able to see what was exchanged. Id. at 635, 682 N.E.2d
636. Indeed, we noted in that case that
"[u]nfortunately drug sales are so common in present society that almost
any witness could draw the inference that drug sales were occurring when
observing the activities described by [the officer]." Id. at 646 n. 13, 682
N.E.2d 636.
(FN8.) See, e.g., Slobogin, Testilying: Police Perjury and What to Do About It, 67 U.
Colo. L.Rev. 1037, 1056 (1996). Slobogin
advocates flexibility in probable cause standards in order to lessen incentives
for police to testify with slight alterations in the facts. Police officers do so to accommodate an
unwieldy constitutional constraint and obtain a just result: "It's awfully hard to explain to a judge
what I mean when I testify that I saw a furtive movement. I'm glad you were along to see this because
you can see what we're up against.... I
can testify as to the character of the neighborhood, my knowledge that the man
was an addict and all that stuff, but what I mean is that when I see a hype move
the way that guy moved, I know he's trying to get rid of something." Id.,
quoting J.H. Skolnick, Justice Without Trial 216 (2d ed.1975). Slobogin concludes that, "[i]n such a
situation, elaboration of the facts, perhaps ... that the drug was in plain
view, is a natural reaction on the part of a police officer." Slobogin,
supra.