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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. Rivera, 27 Mass.App.Ct.
41 (1989)
Appeals Court of Massachusetts, Worcester.
No. 88‑P‑135.
Argued
Decided
Further Appellate Review Denied
Jane Larmon White,
Committee for Public Counsel Services, for defendant.
Katherine E. McMahon, Asst. Dist. Atty., for Com.
Before GREANEY, C.J., and KAPLAN and ARMSTRONG, JJ.
KAPLAN, Justice.
Indicted
on two counts of possession of controlled substances, cocaine and heroin, with
intent to distribute, the defendant Rivera moved before trial to suppress these
narcotics found on his person at the time of his arrest. The motion was heard and denied with
findings, ruling, and order. The
defendant stood trial, jury waived, and was convicted of the offenses. He appeals, claiming error in the refusal to
suppress.
Evidence
at the pretrial hearing consisted of the testimony of Officer Daniel O'Connor,
a member of the vice squad of the [27
Mass.App.Ct. 42]
The facts
found, supplemented by details from the transcript of the hearing on the
motion, were these. About
O'Connor,
the driver, spotted at his right the defendant and two other men standing on
the sidewalk at the point. The defendant
was facing the car as it approached. At
a distance estimated as about twenty yards from the defendant, O'Connor saw him
holding a plastic baggie in his hand at chest level. The baggie was in O'Connor's clear view, but
at that distance he could not see its contents through the plastic. O'Connor and the defendant made "eye
contact." The defendant, then, in
one movement, commencing to turn his back, plunged the baggie inside the front
of his pants. O'Connor pulled up the car
next to the men. He left the car,
grabbed the defendant, and reached into the defendant's pants and drew the
baggie from the crotch area. It
contained a number of packets evidently of drugs (and later confirmed as
such): ten silver packets of cocaine,
four yellows of cocaine, seven grays of heroin, and one rainbow of heroin. (FN1)
O'Connor,
an experienced narcotics officer, as was Ryan, recognized the baggie at a
distance as a type regularly used to contain and carry smaller packets of
cocaine and heroin.
[27 Mass.App.Ct.
43] The judge found that O'Connor
and Ryan, on the basis of their observations as experienced narcotics officers,
had "mentally recorded information which was sufficient to warrant a
prudent man in believing that the defendant Rivera was at that time committing
a crime. At the very least, that crime
being possession of a controlled substance."
We agree
that the arrest and search were based on probable cause. (FN2)
Accordingly, the motion to suppress failed.
Each of
four elements in the present case tended to prove that the defendant was
currently committing a crime: (1) the
defendant was in possession of what appeared to be evidence of a crime, a
baggie reasonably identified as a type of container regularly used in illicit
drug transactions; (2) the defendant
reacted with behavior reasonably interpreted to be evasive or furtive; (3) the encounter was in a place of high
incidence of drug traffic; (4)
experienced investigators on the scene evaluated the event as indicating
present criminal conduct on the part of the accused. It may be assumed that no one of these
elements, standing alone, would suffice to establish probable cause for arrest
and search. (FN3) However, it is settled by numerous decisions
that a concurrence of the first and second factors‑‑identification
of the baggie in the person's possession and evasive reaction by him‑‑readily
cumulate to provide probable cause. The
inference is measurably strengthened when the site of the episode is a
notorious drug market, and is further enhanced by the opinion on the whole
matter of experienced officers responsible for the arrest.
[27 Mass.App.Ct.
44] A sampling of the decisions
referred to appears in 2 LaFave, Search & Seizure
§ 3.6(d), at 58‑62 (2d ed. 1987), where the author writes: "As the Supreme Court concluded in [Sibron ] v. New York, [392 U.S. 40, 66‑67,
88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968) ],
'deliberately furtive actions ... at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with
specific knowledge on the part of the officer relating the suspect to the
evidence of crime, they are proper factors to be considered in the decision to
make an arrest.' Thus, if the police
see a person in possession of a highly suspicious object or some object which
is not identifiable but which because of other circumstances is reasonably
suspected to be contraband, and then observe that person make an apparent
attempt to conceal that object from police view, probable cause is then
present." (Footnotes omitted.) (FN4)
Characteristic situations cited by LaFave are
those where an officer sees a manila envelope or a hand‑rolled cigarette
symptomatic of a transaction in, or possession of, drugs, and the suspect,
alerted to the near possibility of detection, attempts to discard or conceal
the evidence. See Price v. United States, 429 A.2d 514, 516‑517 (D.C.1981);
State v. Ruffing, 127 N.H.
370, 371, 499 A.2d 1351 (1985); State v. Maguire, 129 N.H.
165, 170, 523 A.2d 120 (1987); State v. Hunt, 15 Or.App.
76, 79‑80, 514 P.2d 1363 (1973); Hollis v. Commonwealth, 216 Va. 874, 876‑877,
223 S.E.2d 887 (1976). The Price case is an example of the court's
remarking also upon the place of the arrest and the experience of the arresting
officer.
Although
we speak of "elements" or features of the cases, it is to be
understood that no two cases are precisely alike; each has its singular aspects. In our jurisdiction, no decided case squares
exactly with the facts of the present case, but the trend of decisions is
evident, and Commonwealth v. Ortiz,
376 Mass. 349, 350‑351, 353‑355, 380 N.E.2d 669 (1978), where
suppression was refused, may be taken to represent them all. There officers in an unmarked car through
binoculars observed a parked car near Blackstone Park in Boston, an area of heavy
drug traffic. [27 Mass.App.Ct.
45] The occupant‑‑the
defendant‑‑left the car and showed a man who approached a yellow
packet believed to resemble the type of a "dime" bag of heroin. As the officers started up their vehicle with
a screech of tires, the defendant threw the yellow packet into the car and both
men fled into the park. The packet,
retrieved, in fact contained the drug.
The defendant was apprehended but the other man was not found. Here are facts similar on principle to those
at bar. We note that in Ortiz the approaching man was the
defendant's brother, known to the police as having a record of prior drug
arrests; but we suggest that the result
should have been the same if that factor were absent. (In
Ortiz there was a question whether the circumstances were
"exigent" thus dispensing with the need for a warrant. No such doubt arises here.) See also, on varying facts, Commonwealth v. Battle, 365 Mass. 472,
313 N.E.2d 554 (1974); Commonwealth v. Brillante,
399 Mass. 152, 503 N.E.2d 459 (1987); Commonwealth v. Blatz,
9 Mass.App.Ct. 603, 403 N.E.2d 945 (1980);
Commonwealth v. McShan, 15 Mass.App.Ct. 921, 444 N.E.2d 948 (1983). Cf.
Commonwealth v. Avery, 365 Mass. 59, 309 N.E.2d 497 (1974);
Commonwealth v. Wooden, 13 Mass.App.Ct.
417, 418‑422, 433 N.E.2d 1234 (1982); Commonwealth v. Skea,
18 Mass.App.Ct. 685, 470 N.E.2d 385 (1984).
In our
view the Commonwealth sustained its burden to show that the officers acted on
probable cause, that is, a "requirement ... satisfied by showing facts
which would warrant a man of reasonable caution in believing that certain
action is appropriate." Sullivan v. District Court of Hampshire,
384 Mass. 736, 744, 429 N.E.2d 335 (1981).
The officers must have entertained rationally "more than a
suspicion of criminal involvement, something definite and substantial, but not
a prima facie case of the commission of a crime, let alone a case beyond a
reasonable doubt." Commonwealth v. Bond, 375 Mass. 201, 210,
375 N.E.2d 1214 (1978). The defendant
tries, vainly, to demand satisfaction of a much more rigorous standard
here. After all, he says, conceivably
the concealment of the baggie was an innocent act. (FN5)
The point [27 Mass.App.Ct.
46] rather is that the experienced
officers in the circumstances of the case could reasonably have concluded with
a "practical, nontechnical" probability (Brinegar v. United States, 338 U.S. 160, 176, 69
S.Ct. 1302, 1311, 93 L.Ed.
1879 [1949] ) that the gesture was an attempt at evasion.
JUDGMENTS
AFFIRMED.
(FN1.) Testimony at the later trial indicated
retail prices as follows: ten dollars
for a silver packet, twenty‑five dollars for yellow, thirty dollars for
gray, and thirty dollars (apparently) for rainbow.
(FN2.)
The requirements of probable cause for arrest may be taken to equate here with
those for search, see Commonwealth v.
Tarver, 369 Mass. 302, 307, 345 N.E.2d 671 (1975), and it is not important
whether the arrest is supposed to have occurred just before, immediately after,
or concurrently with the search. See Rawlings v. Kentucky, 448 U.S. 98, 111,
100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980);
Commonwealth v. Avery, 365 Mass. 59, 65, 309 N.E.2d 497 (1974);
Commonwealth v. Brillante, 399 Mass. 152,
154 n. 5, 503 N.E.2d 459 (1987).
(FN3.)
In the present case the container was capable of use for a lawful as well as an
unlawful purpose; where a container
appears to have but one use, and that an unlawful one, its identification,
standing alone, may be enough to justify seizure. Note the tied‑off, deflated balloon in Texas v. Brown, 460 U.S. 730, 742‑743,
103 S.Ct. 1535, 1543‑1544, 75 L.Ed.2d 502
(1983).
(FN4.)
Decisions to like effect are assembled in Annotation, 45 A.L.R.3d 581 (1972
& Supp.1988).
(FN5.)
The defendant seems to be contending that a person's reaction to the approach
of someone in plainclothes, rather than in uniform, cannot be interpreted as
evasive and is necessarily of minimal probative value. Surely no such generalization can be
supported; all turns on the particulars
of the case in its milieu. Here the
defendant's instant move to his pants could count materially toward probable
cause.