Commonwealth vs. Andrew Levy, April 20, 2010
76 Mass. App. Ct. 617
Motion to Suppress, Probable Cause, Search and Seizure
The commonwealth appeals from the trial judge’s allowance in part of the defendant’s motion to suppress evidence. The defendant was charged with possession with intent to distribute a class B substance (cocaine), possession with intent to distribute within a school zone.
Leave to prosecute an interlocutory appeal was allowed by a single justice of the SJC, and the appeal was then reported to the appeals court. The appeals court reversed the decision of the trial court and denied the motion to suppress.
In January of 2007, while conducting surveillance of a set of pay phones, a detective with the Brockton Police department observed a man drive up to the telephones. The man placed a twenty second phone call using one of the pay telephones, returned to his car, and drove a short distance away. The man then got out of his car and began pacing up and down the street. At this point another car with the defendant as a passenger picked up the man and drove with him in the car roughly 200 yards around the block. The man then got out of the car and began walking back towards his vehicle. At this point, although the detective had not seen any actual exchange between the parties, he “knew for a fact a drug transaction had occurred”. The detective checked the license plate number of the car carrying the defendant, noticed that the registered owner had a suspended license. The detective and other officers eventually pulled over the car and asked the defendant and the driver to step out of the vehicle. At this point they performed a search of both men during which they found 28 individually packaged bags of cocaine in the defendant’s boot.
The defendant moved to suppress this evidence claiming that there was not probable cause to conduct a full search of the defendant. The trial judge noted that the detective was an “experienced Brockton Police detective,” that the pay telephones were “often used to set up drug deals,” and that “the officers had a reasonable suspicion that the people in the Pontiac were operating as a team, selling drugs”. He further found that because the driver had a suspended license there was an independent basis to justify a stop of the vehicle, however he found that the facts were not sufficient to justify a full search of the defendant for evidence. The commonwealth argues that in light of the detectives observations there was probable cause to arrest the defendant and the motion to suppress should be denied.
The appeals court began their discussion by stating that probable cause stating that in examining whether probable cause existed they consider “the whole “silent movie” disclosed to the eyes of an experienced narcotics investigator,” particularly where there was “a sequence of activity consistent with a drug sale at a place notorious for illicit activity in narcotics”. Commonwealth vs. Santaliz, 413 Mass. 238, 241 (1992). The court went on to analyze whether probable cause existed in this case using four factors enumerated in the Santaliz case: 1) the unusual nature of the transaction, 2) the furtive actions of the participants, 3) whether the encounter occurs at a place known to police of high incidence of drug traffic, 4) whether an experienced officer on the scene, who made numerous arrests in the neighborhood, considered the event as revealing a drug sale accomplished by the defendant.
The court found that while it was a close question, probable cause to arrest the defendant did exist because the brief call, short drive, and rapid entering and exiting of the Pontiac was an “unusual transaction”. Further, because though not necessarily furtive, the “quickness” of the interactions could have been interpreted as suspicious conduct similar to that in the Santaliz case. Additionally the incident did occur in an area known to police for drug traffic and where police including the detective himself had made numerous arrests. The court ended its analysis by saying that although the officer did not actually see a drug transaction, the other factors in this case were sufficient to create probable cause for an arrest. Commonwealth vs. Kennedy, 426 Mass. 703,711 (1998).
76 Mass. App. Ct. 617
Motion to Suppress, Probable Cause, Search and Seizure
The commonwealth appeals from the trial judge’s allowance in part of the defendant’s motion to suppress evidence. The defendant was charged with possession with intent to distribute a class B substance (cocaine), possession with intent to distribute within a school zone.
Leave to prosecute an interlocutory appeal was allowed by a single justice of the SJC, and the appeal was then reported to the appeals court. The appeals court reversed the decision of the trial court and denied the motion to suppress.
In January of 2007, while conducting surveillance of a set of pay phones, a detective with the Brockton Police department observed a man drive up to the telephones. The man placed a twenty second phone call using one of the pay telephones, returned to his car, and drove a short distance away. The man then got out of his car and began pacing up and down the street. At this point another car with the defendant as a passenger picked up the man and drove with him in the car roughly 200 yards around the block. The man then got out of the car and began walking back towards his vehicle. At this point, although the detective had not seen any actual exchange between the parties, he “knew for a fact a drug transaction had occurred”. The detective checked the license plate number of the car carrying the defendant, noticed that the registered owner had a suspended license. The detective and other officers eventually pulled over the car and asked the defendant and the driver to step out of the vehicle. At this point they performed a search of both men during which they found 28 individually packaged bags of cocaine in the defendant’s boot.
The defendant moved to suppress this evidence claiming that there was not probable cause to conduct a full search of the defendant. The trial judge noted that the detective was an “experienced Brockton Police detective,” that the pay telephones were “often used to set up drug deals,” and that “the officers had a reasonable suspicion that the people in the Pontiac were operating as a team, selling drugs”. He further found that because the driver had a suspended license there was an independent basis to justify a stop of the vehicle, however he found that the facts were not sufficient to justify a full search of the defendant for evidence. The commonwealth argues that in light of the detectives observations there was probable cause to arrest the defendant and the motion to suppress should be denied.
The appeals court began their discussion by stating that probable cause stating that in examining whether probable cause existed they consider “the whole “silent movie” disclosed to the eyes of an experienced narcotics investigator,” particularly where there was “a sequence of activity consistent with a drug sale at a place notorious for illicit activity in narcotics”. Commonwealth vs. Santaliz, 413 Mass. 238, 241 (1992). The court went on to analyze whether probable cause existed in this case using four factors enumerated in the Santaliz case: 1) the unusual nature of the transaction, 2) the furtive actions of the participants, 3) whether the encounter occurs at a place known to police of high incidence of drug traffic, 4) whether an experienced officer on the scene, who made numerous arrests in the neighborhood, considered the event as revealing a drug sale accomplished by the defendant.
The court found that while it was a close question, probable cause to arrest the defendant did exist because the brief call, short drive, and rapid entering and exiting of the Pontiac was an “unusual transaction”. Further, because though not necessarily furtive, the “quickness” of the interactions could have been interpreted as suspicious conduct similar to that in the Santaliz case. Additionally the incident did occur in an area known to police for drug traffic and where police including the detective himself had made numerous arrests. The court ended its analysis by saying that although the officer did not actually see a drug transaction, the other factors in this case were sufficient to create probable cause for an arrest. Commonwealth vs. Kennedy, 426 Mass. 703,711 (1998).
