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SJC-11619
COMMONWEALTH vs. ANGEL SANTIAGO.
Hampden. October 7, 2014. - February 4, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Controlled Substances. Search and Seizure, Standing to object,
Threshold police inquiry, Reasonable suspicion, Probable
cause, Fruits of illegal search. Constitutional Law,
Investigatory stop, Probable cause, Reasonable suspicion,
Search and seizure. Practice, Criminal, Motion to
suppress, Standing. Threshold Police Inquiry. Probable
Cause.
Indictment found and returned in the Superior Court
Department on July 19, 2012.
A pretrial motion to suppress evidence was heard by John S.
Ferrara, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Gants, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
Frederic G. Bartmon for the defendant.
Michael K. Fee, P. R. Goldstone, Alex G. Philipson, Matthew
R. Segal, & Jessie J. Rossman, for Massachusetts Association of
2
Criminal Defense Lawyers & another, amici curiae, submitted a
brief.
Murat Erkan, for Erkan & Associates, LLC, amicus curiae,
submitted a brief.
BOTSFORD, J. The defendant has been indicted on a charge
of unlawful distribution of a class B controlled substance
(cocaine), second or subsequent offense. See G. L. c. 94C,
§ 32A (c), (d). He was stopped and arrested by police officers
at the same time and in the same location as another man, Edwin
Ramos, to whom the Commonwealth alleges the defendant
distributed the cocaine; Ramos was charged with possession of
cocaine by complaint in the District Court. A judge in the
Superior Court allowed the defendant's motion to suppress
evidence of the alleged cocaine on a theory of "target
standing." We consider here the Commonwealth's interlocutory
appeal from the allowance of the motion. We conclude that this
is not an appropriate case in which to consider the adoption of
target standing. Accordingly, we reverse the order allowing the
defendant's motion to suppress.
Background. We take the relevant facts from the motion
judge's findings:
"On May 14, 2012, Springfield Police Officer William
Catellier observed the defendant . . . riding a bicycle in
the North End section of Springfield. This is an area
known for drug and gang activity. Officer Catellier was on
uniform patrol, working the 4 P.M. to midnight shift. He
had no interaction with the defendant that date, but noted
him because he knows that drug runners sometime use
3
bicycles to relay drugs and money between street level
dealers and buyers.
". . .
"[On] May 16, 2012, Officer Catellier was again on patrol
in the North End. He again saw the defendant riding a
bicycle, and undertook surveillance, following the
defendant in his marked cruiser, staying a few blocks back
from him. Officer Catellier did not know the defendant and
the [c]ourt credits his testimony that he was unaware that
[the defendant] had been arrested the previous day.
Officer Catellier observed the defendant pedaling north on
Main Street. He lost sight of the defendant for a short
period of time -- perhaps a minute -- but then observed him
again riding his bike near the corner of Main and Bancroft
[S]treets. He then observed the defendant dismount the
bike and walk east down Bancroft, up to a man who stepped
out of the entryway to a building. [The defendant]
extended his arm toward the man, later identified as Edwin
Ramos, and then Ramos appeared to put something in his
shirt pocket. Officer Catellier did not see a specific
item in either man's hand, and did not see an exchange; he
did not observe Ramos give anything to the defendant. He
nonetheless suspected that he had just seen a drug
transaction.
"The two men then began walking together west on Bancroft
Street, back toward Main Street. Officer Catellier and his
partner immediately intercepted and detained the two men.
Officer Catellier told Ramos to "hold on a second," or
something to that effect, and reached into Ramos's shirt
pocket. He recovered a small packet of cocaine. The
defendant . . . was then searched. No drugs were found on
[him]. He had five dollars in his wallet.
"Both men were then arrested. Officer Catellier caused
Ramos to be charged with possession of cocaine, and the
defendant with distribution of that same cocaine. The
Commonwealth proposes to use the cocaine seized from Ramos
in the prosecution of the defendant, and it is that
evidence the defendant wants suppressed."
In allowing the defendant's motion to suppress, the judge
reasoned that a claim of "automatic standing" under the rule of
Commonwealth v. Amendola, 406 Mass. 592, 601 (1990), was not
4
available to the defendant because he was not charged with a
possessory offense. See Commonwealth v. Garcia, 34 Mass. App.
Ct. 386, 390 (1993). See also Commonwealth v. Frazier, 410
Mass. 235, 245 n.6 (1991). Nevertheless, the judge ruled that
the defendant was entitled to assert standing to challenge the
search and seizure of cocaine from Ramos under a theory of
target standing. He determined that the police did not have
probable cause to search Ramos based on their observations of
Ramos and the defendant; that there were no facts suggesting
reasonable suspicion for a Terry-type stop; and that, even if
there were, the search of Ramos was not justified based on any
safety concerns. See Terry v. Ohio, 392 U.S. 1, 27 (1968). The
judge also determined that the police officers conducted the
search of Ramos "with the goal of obtaining incriminating
evidence against both Ramos and the defendant, but principally,
the defendant." He concluded that the violation of Ramos's
rights was both intentional and egregious, but that because
Ramos had resolved his case with a guilty plea and a fine
without going forward with his motion to suppress, the illegal
police conduct would receive no sanction, and therefore there
would be no deterrence of future unlawful police actions. In
the judge's view, it was necessary to recognize the defendant's
standing to challenge the police seizure of the drugs from Ramos
to avoid creating "a means for police to easily circumvent the
5
requirement of a warrant, or at leas[t] probable cause where
there is some exigency, for searches of persons suspected of
engaging in an unlawful exchange."
The Commonwealth thereafter filed a timely notice of appeal
in the Superior Court and a timely application for leave to
bring an interlocutory appeal in the county court. See Mass. R.
Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). A
single justice allowed the Commonwealth's application and
ordered the case transferred to the Appeals Court. Thereafter,
we transferred the appeal to this court on our own motion.
Discussion. 1. Target standing. As articulated by the
United States Supreme Court, the concept of target standing
permits a criminal defendant who is the "target" of a search by
police "to contest the legality of that search and object to the
admission at trial of evidence obtained as a result of the
search," in effect permitting the defendant "to assert that a
violation of the Fourth Amendment rights of a third party
entitled him to have evidence suppressed at his trial." Rakas
v. Illinois, 439 U.S. 128, 132, 133 (1978). The Supreme Court
has rejected target standing under the Fourth Amendment, see id.
at 133-138, and it appears that few State courts have accepted
the concept.1 This court has considered target standing in
1
Alaska has accepted the theory of target standing, see
Waring v. State, 670 P.2d 357, 363 (Alaska 1983), as has
Louisiana. See State v. Owen, 453 So. 2d 1202, 1205 (La. 1984).
6
relation to art. 14 of the Massachusetts Declaration of Rights
in a number of cases since 1990, but to date we have not adopted
it. See Commonwealth v. Manning, 406 Mass. 425, 429-430 (1990);
Commonwealth v. Price, 408 Mass. 668, 673-675 (1990);
Commonwealth v. Scardamaglia, 410 Mass. 375, 377-380 (1991);
Commonwealth v. Waters, 420 Mass. 276, 278 (1995); Commonwealth
v. Vacher, 469 Mass. 425, 435-437 (2014).
The primary purpose of the exclusionary rule is to deter
future police misconduct by barring, in a current prosecution,
the admission of evidence that the police have obtained in
violation of rights protected by the Federal and State
Constitutions. See, e.g., United States v. Calandra, 414 U.S.
338, 348 (1974); Manning, 406 Mass. at 429. But the rule
requires that a balance be drawn between effectuating its
deterrent purpose and permitting the fact finder to decide a
criminal case based on the available relevant evidence,
including "highly relevant evidence of guilt." See
Scardamaglia, 410 Mass. at 380. As the Rakas case reflects, the
Supreme Court has decided that the appropriate balance is
However, Louisiana has a provision in its State Constitution
that expressly authorizes "[a]ny person adversely affected by a
search or seizure conducted in violation" of its provisions to
challenge the legality of a search. See id., quoting La. Const.
art. 1, § 5. The Supreme Court of California adopted a rule of
essentially universal standing, see People v. Martin, 45 Cal. 2d
755, 761 (1955), but a subsequent constitutional amendment
superseded the rule. See Matter of Lance W., 197 Cal. Rptr.
331, 337 (Cal. 1983), citing Cal. Const. art. I, § 28 (d).
7
achieved by limiting to those whose own constitutional rights
have been violated the right to claim the benefit of the
exclusionary rule. See Rakas, 439 U.S. at 134-135. In
considering art. 14, we have said that a somewhat broader view
may be appropriate, suggesting that "[u]nconstitutional
[searches of] small fish intentionally undertaken in order to
catch big ones may have to be discouraged by allowing the big
fish, when caught, to rely on the violation of the rights of the
small fish, as to whose prosecution the police are relatively
indifferent." See Vacher, 469 Mass. at 435, quoting Manning,
406 Mass. at 429. We also have suggested that at least where
"distinctly egregious police conduct" is involved, the need to
create a deterrent effect may require, or at least make
appropriate, recognition of target standing. See Scardamaglia,
supra.
We reaffirm the view stated in Scardamaglia, 410 Mass. at
380, that in a case where the police engage in "distinctly
egregious" conduct that constitutes a significant violation of a
third party's art. 14 rights in an effort to obtain evidence
against a defendant, it may be appropriate to permit the
defendant to rely on the standing of the third party to
challenge the police conduct. For the reasons next discussed,
however, we are not persuaded that the police in this case
8
engaged in conduct that would warrant the adoption of such a
target standing rule.
We accept the findings of the motion judge absent clear
error, but determine independently "the correctness of the
judge's application of constitutional principles to the facts as
found" (citation omitted). Commonwealth v. DePeiza¸ 449 Mass.
367, 369 (2007) (quotation omitted). Based on his factual
findings, the judge concluded that the absence of probable cause
was obvious. We do not share this view. The evidence, in
summary, showed that Catellier, the police officer who stopped
the defendant and Ramos, had worked in the North End of
Springfield for ten years, knew that it was a high crime area,
and had made many drug arrests there. On the day of the arrest,
Catellier saw the defendant riding his bicycle again -- he had
seen the defendant riding his bicycle two days earlier -- then
dismount and approach Ramos as the latter stepped out of a
doorway. The defendant reached his arm out toward Ramos, "and
then . . . Ramos appeared to put something in his shirt pocket."
Although Catellier did not see any item actually exchanged, the
defendant's extended arm and Ramos's corresponding gesture in
relation to his shirt pocket provided some basis for Catellier's
belief that a drug transaction between the two men had just
taken place. Compare Commonwealth v. Stewart, 469 Mass. 257,
259-264 (2014) (police officer watched defendant, followed by
9
three individuals, head down street known for drug use, huddle
briefly with them in doorway, and then separate, but officer saw
no exchange of any item or gestures between or among anyone in
group; court concluded that based on officer's experience and
knowledge of defendant's record, officer had reasonable ground
to suspect drug transaction involving defendant had occurred,
but not probable cause to arrest).2 At the least, as in Stewart,
see id. at 261, there was a sufficient basis for Catellier to
have reasonable suspicion of a drug transaction, and therefore
to conduct a Terry-type stop of the defendant and Ramos. See
Terry, 392 U.S. at 21-22.
Assuming that a Terry-type stop was justified but that
there was no probable cause for an arrest, we agree with the
judge that nothing in the situation suggested that Catellier had
a reason to believe either the defendant or Ramos was armed or
dangerous, and thus Catellier had no justifiable reason, after
stopping the two men, to reach immediately into Ramos's pocket
without making any inquiry first. See Commonwealth v. Silva,
366 Mass. 402, 406 (1974). But in the circumstances, where the
existence of probable cause was close, we question the basis for
the judge's finding that Catellier "intentional[ly]" violated
2
In concluding that probable cause had not been
demonstrated in Commonwealth v. Stewart, 469 Mass. 257 (2014),
the court reversed the decision of the judge denying the
defendant’s motion to suppress. Id. at 258-259, 265. The
evidence supporting probable cause in this case is arguably
stronger than in Stewart.
10
Ramos's rights by reaching into his pocket and removing the
small packet of cocaine; in any event, we reject the judge's
conclusion that this brief, limited search of Ramos's shirt
pocket constituted an "egregious" violation of his rights.
Finally, there is the question of target. The evidence
before the judge -- Catellier's observation of the defendant two
days earlier on May 14, 2012, and his related decision to
conduct surveillance on May 16 of the two men -- provides
factual support for the judge's conclusion that the defendant
was Catellier's principal target when he stopped the defendant
and Ramos. But the judge also concluded that Ramos was himself
a target.3 See Vacher, 469 Mass. at 436.
In sum, the facts here do not support the defendant's claim
of target standing.
3
Edwin Ramos was arrested at the same time as the defendant
and charged with the crime of possession of cocaine. As
indicated supra, the motion judge viewed the absence of
suppression of the cocaine in Ramos's case and the fact that the
charge against him was not dropped as providing a reason to
recognize target standing in the defendant's case; he reasoned
that because no sanction of the unlawful police conduct against
Ramos had been imposed, there would be no deterrence of future
unlawful searches. We disagree that the manner in which Ramos
resolved his case offers a reason for adoption of a target
standing theory in this case. The record does not offer any
indication of why Ramos, with the advice of counsel, chose to
resolve the case against him in the manner that he did rather
than proceed with his motion to suppress. The motion judge did
find that Ramos himself was a target of the police actions here,
although not the primary one. The facts of this case do not
justify recognizing target standing for the defendant on the
ground that if it is not recognized, unlawful police conduct
will go unsanctioned.
11
2. Automatic standing. Although the judge rejected the
defendant's claim of automatic standing on the ground that the
offense charged was not one with possession as an element, the
defendant presses this point on appeal, presumably as an
alternate basis to affirm the judge's suppression order. The
facts of this case -- where the evidence of distribution by the
defendant is so immediately tied, in terms of time and place,
with the evidence of possession by Ramos -- present a
sympathetic case for accepting the defendant's argument for
expansion of the doctrine of automatic standing. But automatic
standing is available in connection with crimes that have
possession as an element because of the distinctly unfair
position in which the defendant is put without such standing.
See Amendola, 406 Mass. at 596-597, 599 (establishing automatic
standing under art. 14 because without this doctrine, defendant
charged with possessory offense must either assert ownership
over contraband, thereby violating right against self-
incrimination, or remain silent and waive right to challenge
search and seizure). See also Frazier, 410 Mass. at 241-243;
Garcia, 34 Mass. App. Ct. at 391. It is a clear rule with a
distinct purpose; an expansion of automatic standing in the
manner suggested by the defendant would remove the clarity of
the rule and alter or at least muddy its purpose. Accordingly,
we reject the defendant's expansion argument.
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3. Conclusion. The order of the Superior Court allowing
the defendant's motion to suppress on a theory of target
standing is reversed. The case is remanded to the Superior
Court for further proceedings consistent with this opinion.
So ordered.