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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. Lopez, WL
339948 (Mass.Super. 1996)
Superior
Court of
No. 9577CR‑3107.
MEMORANDUM OF
DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
WELCH, Justice.
Introduction
The
defendant, Raphael Lopez, now moves pursuant to Mass. R.Crim.
P. 13 to suppress all evidence seized from his person or from as area of the
premises under his exclusive control.
The defendant claims that the evidence seized was not pursuant to a
lawful arrest, it was not in plain view, there was no probable cause, no
warrant, no exigent circumstances, without consent, and in violation of the
Fourth and fourteenth Amendments of the United States Constitution, Article IV
of the Declaration of Rights of the Constitution of the Commonwealth of
Massachusetts and G.L. c. 276.
After
holding an evidentiary hearing, this court disagrees with the defendant. The motion must be denied.
Findings
of Fact
The
following findings of fact were dictated from the bench:
On
In fact,
on
After
their busy Friday evening operating this "reverse sting", the two
detectives were off duty for the weekend.
On
Later that
evening, at approximately 9 p. m., the detectives return to 12‑14 Crosby
Street to verify the reports of illegal drug activity. Both detectives proceeded to the third floor
apartment and asked the tenant, an individual with whom they were acquainted,
if they could go through this apartment so they could gain access to the rear
hallway which would allow them to enter the first‑floor‑rear
apartment, the same apartment where the reverse sting had been operated the
Friday before.
The tenant
on the third floor agreed to their request and both detectives went down the
stairs and found the door to the first‑floor‑rear apartment
open. They did a sweep search of the
apartment at this time. They did find
evidence that the apartment had recently been occupied in some manner; that is that there were candles lit in the
apartment. Indeed, on the 15th they had
found the same candles lit and they had snuffed them out. They return on Monday and find the candles
lit again. The officers had further
evidence that drug activity was again occurring at this location. Besides the calls regarding drug activity,
when the detectives pulled up to the apartment building they saw a white male
in the back alleyway near the kitchen window, the same kitchen window where the
cocaine was distributed before, and he flees from that location upon the
police's arrival.
Given this
evidence, they have a reasonable suspicion that drug activity is going on there
again. Within five minutes of their
being in that first‑floor‑rear apartment on September 18, the
detectives hear a tap on the window. At
this time Detective Petralia looks out through closed
mini‑blinds and identifies the defendant, Raphael Lopez as the person
knocking on the kitchen window, the same kitchen window where drug dealing had
been going on. At this time the
detective puts his hand underneath the open part of the window. At that time the defendant, Raphael Lopez,
does not hand him money, but instead whistles, looks around and says in
Spanish, words to the effect, open the door.
Detective Burokas, who understands Spanish,
informs Detective Petralia what the defendant said.
Thereupon,
Detective Burokas goes out of the kitchen into a
common hallway and to the door which leads to the back alley. He slides the upper bolt from the door so as
to open it, opens the door and stands behind the door. At that time the defendant enters the doorway
into the rear common hallway. The
defendant then turns left heading toward the kitchen, the same kitchen where
the drug activity had been taking place.
This is a location where the defendant had no right of occupancy, since
no one was living in the apartment. At
that time Detective Petralia is actually coming out
of the kitchen door into the common hallway and his badge is apparent. At that moment, Raphael Lopez notices
Detective Petralia and Detective Petralia
announces that he is a police officer.
Immediately,
thereafter, the defendant Raphael Lopez, moves his right hand in a grasping
motion toward a bulge located in the small of his lower back and begins to turn
towards the doorway he has just entered and, indeed, attempts to jump back out
that door. At this time Detective Burokas comes out from behind the door which was opened for
the defendant and also observes the defendant grabbing for a bulge in the small
of his back. Both detectives see a large
bulge in the small of the defendant's back, underneath his clothing. The bulge was approximately at the belt line.
This Court
finds that at this time both Detectives had a reasonable apprehension that the
bulge was indeed a weapon. Based on the
officers' experience and expertise it was not uncommon for people buying or
selling or distributing cocaine in Lawrence to be armed. It was not uncommon for someone to conceal
both drugs and a weapon, be it a knife or a handgun, in the small of their
back. I find that both detectives were
reasonably and appropriately concerned that the defendant was concealing a
weapon in the small of his back, under his clothes and was reaching for that
weapon. It is apparent to this Court
that both Detectives had reasonable articulable
suspicion under the Terry case to
permit a threshold inquiry and pat down of the defendant, not only as to whether
he was carrying a concealed weapon, but also whether he was involved in the
cocaine transactions which were occurring at that kitchen location in 12‑14
Crosby Street on the first‑floor‑rear apartment.
As the
defendant started to flee, Detective Burokas grabbed
his right hand and stopped him. The hand
which Burokas grabbed was the hand which was moving
toward the object concealed under the defendant's clothing, which the police
thought might be a weapon. Burokas then touched a softball size package which felt
both soft and hard. He felt many objects
inside the package which felt like ping‑pong balls. Based on his training and experience, as well
as what he had seen of the defendant's suspicious conduct at the window,
Detective Burokas believed that to be a package
containing many bundles of crack cocaine.
He then reached inside the defendant's clothing and retrieved a plastic‑wrapped
package which he visually confirmed as containing numerous smaller bundles of
crack cocaine.
Discussion
A. Stop and
Frisk
In the
instant case the defendant claims that the initial stop and frisk by the
detectives was unlawful because it lacked probable cause. According to the venerable case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed 2d 889
(1968), "the frisk of a person is constitutionally permissible if the
arrest officer can point to specific, articulable
facts that warrant a reasonable suspicion that the particular individual might
be armed and a potential threat to the safety of the officer or others."
Commonwealth v. Wing Ng, 420 Mass. 236, 237 (1995).
In
reviewing the evidence presented to this Court, Detectives Burokas
and Petralia clearly had ample "specific and articulable facts" to justify the detention and frisk
of the defendant for weapons. The
defendant was in a known drug distribution area and his actions were consistent
with others (arrested the previous Friday) involved in this cocaine
distribution ring. Commonwealth v. Silva, 366 Mass. 402, 407
(1974), Commonwealth v. Moses, 408
Mass. 136, 140 (1990). For example, the
defendant attempted to communicate with occupants of the empty residential
first‑floor apartment by knocking on the exact same kitchen window in the
same manner as others arrested in the sting operation. After asking to be let into the building, the
defendant moved towards the door which gives access directly into the kitchen
which was known for drug distribution.
Once confronted with Detective Petralia's
presence he turned to flee and reached for a concealed object in the small of
his back.
Commonwealth v. Wren, 391 Mass. 705, 708 n. 2 (1984). The detectives were extremely aware that
weapons are often typically concealed in that location on a person. At this time, based on their narcotics
training and experience, the officers were justified in having a strong
suspicion that the defendant was involved in narcotic‑related activities
and were also appropriately concerned for their safety. The detectives stopped the defendant so that
he was unable to retrieve what was concealed in his lower back and then frisked
him.
The search
that followed this valid stop was limited to withdrawing the object that
created the suspicious bulge.
Withdrawing the concealed package felt while frisking the defendant for
weapons is considered within the ambit of reasonable protective precautions
permitted by Terry. If the stop was justified, the officers
could take reasonable precautions for their own protection. Commonwealth v. Robbins,
407 Mass. 147, 151 (1990). The case of Commonwealth v. Johnson, 413 Mass.
598,600‑602 (1992) is particularly instructive. In that case the defendant, upon being
stopped after a high speed chase, was observed reaching for the waist area of
his pants. A Terry pat and frisk revealed a plastic bag containing a lump of
white powder. "In these
circumstances, it was not necessary for the judge to have specifically found
that the officer believed that the bulge inside the defendant's pants was a
weapon. 'It was necessary for the
protection of [the officer] and others to take swift measures to discover the
true facts and neutralize the threat of harm if it materialized.' " Id.
at 601, quoting, Terry v. Ohio, supra
at 30. As in the Johnson case, the detectives here did not conduct "a general
exploratory search", but "sought only to ascertain what the object
was that he had seen the defendant hiding inside his pants." Id.
Given the circumstances faced by the detectives in this case, they were
warranted for their own protection in finding what the defendant had concealed
in the small of his back. Police
officers are "not required to gamble with their personal safety."
Commonwealth v. Robbins, supra at 152. Thus, the seizure of the bag of crack cocaine
was permissible under a Terry‑style
analysis.
B. A Search Incident
to Arrest
If this is
too expansive an interpretation of the legitimate scope of a Terry pat and frisk, the seizure of the
cocaine was also justified as a search incident to arrest. "The purpose of the limited [Terry ] search is not to discover evidence
of crime, but to allow the officer to pursue his investigation without fear of
violence." Adams v. Williams, 407 U.S. 143, 146
(1972). Nevertheless, when a legitimate
pat down provides probable cause to arrest an individual, a further search of
the person incident to the arrest is appropriate. Thus, if the valid pat down for a weapon
(together with the other evidence already known to the officers) produced
probable cause for the officers to believe that the defendant possessed
contraband, the seizure and search of the contraband was valid.
Commonwealth v. Johnson, supra at 602. As the United States Supreme Court has
stated: "police officers, at least
under certain circumstances, may seize contraband detected during the lawful
execution of a Terry search."
Minnesota v. Dickerson, 113 S.Ct. 2130,
2136 (1993). See Michigan v. Long, 463 U.S. 1032, 1050
(1993) (contraband discovered during protective frisk of a vehicle). I find that the officers, based on the
totality of the circumstances, had probable cause to arrest the defendant (and
search incident to the arrest) once Detective Burokas
felt the uniquely feeling and shaped object under the defendant's shirt. Based on:
(1) his prior experience with this precise locale as a crack cocaine
distribution center; (2) his long
experience with the packaging of crack cocaine in separate ping‑pong ball
sized packages wrapped into a larger consolidated package; (3) the fact that crack cocaine distribution
was ongoing at the apartment that night;
and (4) the defendant's actions attempting to gain access to the
apartment and in fleeing when identifying the police, probable cause existed to
arrest the defendant for possession of crack cocaine. (FN1)
Various
courts recently have treated similar scenarios as applications of the so‑called
"plain feel" doctrine. This
doctrine, not yet officially sanctioned in Massachusetts, appears to be simply
a gloss on the well established law of searches incident to arrest. Both sides argue that this case inevitably
involves the "plain feel" doctrine.
As is apparent, I disagree.
Nevertheless, the newer terminology of the "plain feel"
doctrine produces the same result.
C. The
"Plain Feel" Doctrine
In the
United States Supreme Court case of
Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct.
2130, 2136, 124 L.Ed.2d 334 (1993), the Court states that "If a police
officer lawfully pats down a suspect's outer clothing and feels an object whose
contour or mass makes its identity immediately apparent, there has been no
invasion of the suspect's privacy beyond that already authorized by the
officer's search for weapons, if the object is contraband, its warrantless seizure would be justified by the same
practical consideration that inhere in the plain view context." Several other jurisdictions which follow the
plain view doctrine have accepted the court's decision in regards to
"plain feel" as a logical extension. People v. Mitchell, 650
N.E.2d 1014 (Ill.1995); Commonwealth v. Johnson, 631 A.2d 1335
(PA 1993); State v. Wilson, 437 S.E.2d 387
(N.C.App.1993); State v. Jones, 653 A.2d 1040,
(Md.App.1995).
In
accepting the Court's analysis in
Dickerson the question arises whether the object felt by Detective Burokas was "immediately apparent" to him without
further investigation. In answering this
question the Court must determine, in light of all the circumstances, Detective
Burokas' ability to detect such contraband. Both Detective Pertralia
and Detective Burokas are highly trained
professionals in both police investigation and drug trafficking. Detective Burokas
had extensive experience in examining the packaging of crack cocaine in the
Lawrence area. When the concealed object
was felt by Detective Burokas, he said it was like
several small ping‑pong ball sized packages put together in the size of a
softball. He knew this was consistent
with the manner in which crack cocaine was typically packaged. As earlier discussed, his insight coupled
with his presence in a known drug distribution area and the suspicious behavior
of the defendant provided probable cause to believe that the defendant was
indeed carrying a large quantity of cocaine and therefore probable cause to
arrest.
Detective Burokas in this case knew precisely what he was
encountering as soon as he placed his hand on the bulge under the defendant's
clothing. "When objects have a
distinctive and consistent shape that an officer has been trained to detect and
that officer has previously experienced detecting such objects, his tactile
perception can provide him with the same recognition that his sight would have
provided." Mitchell, 650 N.E.2d 1014, 1022. The issue depends on the particular
officer's experience and the unique object felt in the particular case. In this case Detective Burokas,
a very experienced officer, feels the very distinctive packaging of crack
cocaine. These facts lead to the
inevitable conclusion that the officer's tactile perception was as certain as
his visual perception would have been.
Thus, even using the arguably more chic language of the "plain
feel" analysis, the search was valid.
ORDER
For the
stated reasons, the defendant's Motion to Suppress is DENIED.
(FN1.) The fact that this search apparently
occurred before the formal arrest of the defendant is not important "as
long as probable cause [to arrest] existed independent of the results of the
search." Commonwealth v. Johnson, supra at 602.