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14-P-172 Appeals Court
COMMONWEALTH vs. RONALD FREEMAN.
No. 14-P-172.
Middlesex. December 4, 2014. - June 3, 2015.
Present: Kafker, Grainger, & Agnes, JJ.
Controlled Substances. Practice, Criminal, Motion to
suppress. Constitutional Law, Search and seizure. Probable
Cause. Search and Seizure, Probable cause, Threshold police
inquiry, Reasonable suspicion. Threshold Police Inquiry.
Indictments found and returned in the Superior Court
Department on January 17, 2012.
A pretrial motion to suppress evidence was heard by Garry
V. Inge, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Francis X. Spina, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.
Eric A. Haskell, Assistant District Attorney, for the
Commonwealth.
Rebecca Kiley, Committee for Public Counsel Services, for
the defendant.
AGNES, J. This is an interlocutory appeal arising out of
indictments charging the defendant, Ronald Freeman, with
2
unlawful possession of heroin with the intent to distribute in
violation of G. L. c. 94C, § 32(a), second or subsequent
offense, G. L. c. 94C, § 32(b); and unlawful possession of
heroin in a school zone in violation of G. L. c. 94C, § 32J.
The sole question presented for our consideration is whether the
observation of an exchange between two men in the street made by
an experienced narcotics investigator provided him with probable
cause to believe a drug transaction had occurred. Based on the
investigator's observation of two men on a street corner
counting money, one of whom was known to be a drug user, the
nature of the exchange that took place moments later between one
of those two men and the defendant, and the location in which
the events took place, we conclude the detective had probable
cause to make an arrest. We therefore reverse the order
allowing the defendant's motion to suppress.
Background. On July 26, 2011, at approximately 6:30 P.M.,
Detective Brian Hussey, an experienced narcotics investigator,
was conducting surveillance with his partner, Detective Kevin
Donofrio, in an area of Cambridge bordering Cambridgeport and
Central Square. Within the past two months, there had been more
than a dozen reports of increased drug activity in that area.
The location is a densely populated residential area with
numerous small businesses and parks.
3
Detective Hussey initially observed two men, standing next
to each other on the corner of Magazine and Prince Streets,
counting paper money. He recognized one of the men as a drug
user. The other man was unknown to the police. The officers
maintained their surveillance and observed the two men walk two
blocks and then separate. The unidentified man turned onto
Fairmont Street and walked past the officers, who were seated in
their surveillance vehicle. Detective Hussey exited the vehicle
and followed the unidentified man on Fairmont Street. The
unidentified man, who was talking on a cellular telephone as he
walked, remained in the area of Fairmont Street between Andrew
and Pleasant Streets, for about one minute.
Detective Hussey next observed another male (later
identified as the defendant) walking from the direction of
Pleasant Street toward the unidentified man the detective had
been following. The two men met and began talking to each
other. They then turned and began walking side-by-side in the
direction of Detective Hussey. While the two men stood in the
middle of Fairmont Street, Detective Hussey, who was standing
about forty to fifty feet away, observed the unidentified man
hand what appeared to be unfolded money to the defendant, who,
in turn, passed an object, small enough to fit in the palm of a
4
hand, to the unidentified man. The men parted and went in
opposite directions after the exchange was completed. 1
The unidentified man walked away on Andrew Street and was
not apprehended. The defendant was counting paper money as he
walked in the direction of Detective Hussey. Detective Hussey
continued his surveillance until the defendant put the paper
money in his pocket. He approached the defendant, displayed his
badge, and informed him he was conducting a drug investigation.
The defendant raised his hands and, as he did, dropped a
cellular telephone. He was then handcuffed and placed under
arrest. The defendant was read the Miranda rights and stated
that he understood them. A patfrisk followed, which uncovered a
black pouch hidden in the area of the defendant's crotch
containing eight individual paper folds of heroin. The
defendant also made a number of statements to the police,
including his denial of meeting up with anyone and his admission
that he had "dope" on him.
Discussion. 1. Standard of review. We accept the judge's
subsidiary findings of fact, give appropriate deference to his
ultimate findings and rulings, and independently review the
correctness of the judge's application of constitutional
1
Detective Hussey testified that the two men separated as
soon as the hand-to-hand exchange occurred, and that this was a
factor in his assessment of probable cause.
5
principles to the facts as found. See Commonwealth v. Fisher,
86 Mass. App. Ct. 48, 50 (2014).
2. Motion to suppress. In allowing the defendant's motion
to suppress, the judge relied primarily on Commonwealth
v. Ellis, 12 Mass. App. Ct. 476 (1981), and Commonwealth
v. Clark, 65 Mass. App. Ct. 39 (2005), and reasoned that the
observation of an exchange between two unknown individuals of a
small object for money on a public street, standing alone,
amounts to no more than a hunch that a crime had been committed,
and "does not amount to reasonable suspicion." These two cases
are distinguishable from the facts in this case.
In Ellis, supra at 476-477, we concluded that a police
officer lacked justification to stop a motor vehicle after he
observed several people conversing through the window of the
vehicle while it was in a parking lot, one of the individuals
passing some paper money into the vehicle, and one of the
occupants of the vehicle giving something to this individual.
Similarly, in Clark, supra at 40, the police officer was driving
past a bar when he observed a person he knew to be a bartender
at a different bar walk over to the defendant, who was unknown
to him. The defendant was standing by his parked automobile on
a well-lit street in a "high drug area" at 11:20 P.M. Id. at
40-41. The officer saw the defendant hand "an unidentified
item" to the other man, and then observed the defendant counting
6
money. Id. at 41. In concluding that these observations did
not justify the subsequent stop of the defendant, we noted that
"[a]part from the fact that the general area was known to be a
high crime area, there is nothing in this record to suggest the
officer had any specific information suggesting that a drug sale
was likely to occur at this location." Id. at 44.
In the present case, on the other hand, the events observed
by Detective Hussey did not commence with his observation of a
hand-to-hand exchange, but included the observation he made
minutes earlier and near the location where this exchange took
place, of one of the men involved in this exchange meeting with
another person who was known to the police as a drug user. This
initial observation also included the two men counting money. 2
An additional consideration that weighs in favor of probable
cause is that the area in which these events unfolded was not
described by the police simply in generic terms as a "high
2
Despite the fact that the known drug user observed by
Detective Hussey counting paper currency with the unidentified
man did not interact with the defendant, the sequence of events
in which the unidentified man was first seen with the known drug
user, and then very soon thereafter was seen participating in
the exchange of money for an item with the defendant, was enough
for the experienced narcotics investigator to conclude that the
events were related, and indicative of a drug transaction. See
Commonwealth v. Santaliz, 413 Mass. 238, 241-242 (1992);
Commonwealth v. Kennedy, 426 Mass. 703, 708-711 (1998).
Contrast Commonwealth v. Levy, 459 Mass. 1010, 1011-1012 (2011)
("[N]either the defendant nor anyone else involved in the events
was recognized as having a history with illegal drugs"); Clark,
supra at 45 (neither party involved in events observed by police
had any connection to drug activity).
7
crime" or a "high drug" location. See Commonwealth v. Cheek,
413 Mass. 492, 496-497 (1992). Here, the judge found that
"[w]ithin a month or two prior to that day [day of the
exchange], roughly 10-15 anonymous complaints of increased drug
activity in that area had been received." However, the judge
reasoned that there was "no evidence that the transaction
occurred in a high crime area," because there was no "specific
information suggesting that a drug sale was likely to occur at
the subject location." This conclusion disregards the
interlocking character of these reports of increased drug
activity. 3 The police may not have had any specific information
about particular individuals engaged in selling drugs in the
location in question, but more than a dozen recent reports of
"increased drug activity," even if anonymous, are sufficient to
contribute to the circumstantial evidence that a drug
transaction had occurred.
The case fits within the framework of those decisions in
which the Supreme Judicial Court has assessed whether the
"silent movie" observed by an experienced narcotics investigator
reveals a sequence of activity consistent with a drug sale.
See Commonwealth v. Santaliz, 413 Mass. 238, 242
3
Detective Hussey testified that while he did not have
personal knowledge of drug activity in the area where these
events took place, he knew that the police had recently
received, and had investigated, ten to fifteen complaints of
increased drug activity.
8
(1992); Commonwealth v. Kennedy, 426 Mass. 703, 708-711
(1998); Commonwealth v. Levy, 459 Mass. 1010, 1011-1012
(2011); Commonwealth v. Stewart, 469 Mass. 257, 262-263 (2014).
"In dealing with probable cause . . . we deal with
probabilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act." Commonwealth
v. Kennedy, supra at 710-711, quoting from Brinegar v. United
States, 338 U.S. 160, 175 (1949). "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.'" Santaliz, supra at 241, quoting
from Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989).
This case compares favorably with Commonwealth
v. Santaliz, supra, where the Supreme Judicial Court regarded
four factors as significant in contributing to the existence of
probable cause: (1) "the unusual nature of the transaction"; 4
4
The observations made by Detective Hussey of two men
counting money, one of whom then walks away a short distance
while talking on a cellular telephone and meets with another
man, the defendant, who hands over an object small enough to fit
in the palm of one hand in exchange for paper currency,
qualifies as "unusual" as that term is used in Santaliz, supra.
9
(2) "the furtive actions of the participants"; 5 (3) the encounter
occurred in a location associated with drug activity; 6 and (4) an
experienced drug investigator "considered the event[s] as
revealing a drug sale. 7 Moreover, here, as in Kennedy, supra at
5
Here, the object exchanged between the defendant and the
unidentified male was so small and handed over so quickly that
it could not be identified, and as soon as the exchange
occurred, the two men separated and walked away in opposite
directions. This conduct supplies an objective basis for the
officer to view it as "furtive" as contrasted with what one
court has described as police characterizations of behavior as
furtive that consist of no more than "subjective, promiscuous
appeals to an ineffable intuition." United States v.
Broomfield, 417 F.3d 654, 655 (7th Cir. 2005).
6
The testimony of Detective Hussey that there was an
"increase" in drug activity in the area and that there had been
ten to fifteen reports of drug transactions within a month or
two of the night in question is significant. "[A] tip, 'even
though not [by itself] qualifying under Aguilar [v. Texas, 378
U.S. 108 (1964)], may be used to give such additional color as
is needed to elevate the information acquired by police
observation above the floor required for probable cause.'"
Commonwealth v. Hardy, 63 Mass. App. Ct. 210, 214 (2005),
quoting from Commonwealth v. Saleh, 396 Mass. 406, 411 (1985).
It should be noted that the judge credited the testimony of
Detective Hussey about reports of an increase in reported drug
dealing in the area in question, but declined to attach any
legal significance to it because there was an "absence of
specific information suggesting that a drug sale was likely to
occur at the subject location." While numerous anonymous
reports to the police of drug sales in a location do not suffice
to establish probable cause or even reasonable suspicion that a
particular encounter involves a hand-to-hand drug transaction,
such reports do supply a context on which an experienced
narcotics investigator can rely in interpreting events that
might otherwise seem innocuous or coincidental.
7
Detective Hussey, who had experience and specialized
training in street-level drug transactions, was in a specialized
drug investigation unit, and was assigned to conduct
10
711, the observation of an actual object exchanged "is an
important piece of evidence that supports probable cause."
These facts are certainly as indicative of probable cause as
those deemed sufficient in Commonwealth v. Santaliz, supra,
and Commonwealth v. Kennedy, supra.
Conclusion. The essence of probable cause is a reasonable,
objective basis that would lead a person of ordinary prudence to
believe a crime has been, is being, or is about to be committed.
See Santaliz, supra at 241. While there could have been an
innocent explanation for the events observed by Detective
Hussey, he was entitled to view them through the lens of his
specialized training and experience and conclude that more than
mere coincidence was involved, and that he had witnessed a drug
transaction. For these reasons the order allowing the
defendant's motion to suppress is reversed. 8 The case is
surveillance in the area where the encounters took place,
considered the nature of the exchange and the departure of the
two men immediately thereafter as indicative of a street-level
drug transaction.
8
The judge's suppression order included both the physical
evidence seized from the defendant's person ($69 in United
States currency and the drugs found inside the black pouch), as
well as the statements made after the defendant was arrested.
Because the judge found that the defendant understood his
Miranda warnings and no argument is made by the defendant as to
why his statements should be suppressed apart from the claim
that the arrest was invalid, those statements will be admissible
at trial unless excluded for reasons unrelated to the
defendant's arrest.
11
remanded for the entry of an order denying the defendant's
motion and for further proceedings consistent with this opinion.
Order allowing motion
to suppress reversed.