COMMONWEALTH v. STEWART (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

These appeals arise from the allowance of two motions to suppress. One ruling suppressed physical evidence and statements obtained after police stopped defendant Cory Linnell on suspicions of engaging in a drug transaction, and the other ruling suppressed evidence obtained before and after the execution of a search warrant at defendant Michael Stewart's home. The Commonwealth contends that the searches and seizures at issue were each lawful and that the motions to suppress were improperly allowed. We affirm.

Background. Although the facts are lengthy, they are undisputed and recited only insofar as the issues on appeal are implicated. The Chelsea Police Department received two online tips in February 2016 that defendant Linnell was dealing heroin. The first tip, from Sharon Frost, came through a police online tip portal. Frost stated that her daughter and Linnell were in a relationship and that Linnell had caused her daughter to become addicted to heroin. She also stated that Linnell was a heroin dealer and was bragging about his misdeeds on Facebook. Frost provided her e-mail address and phone number in the tip. The second tip arrived over Facebook Messenger ³ from “Tony Milano.” Milano included the address 76 Clark Avenue after Linnell's name and stated that Linnell had sold a “bad” bag of heroin to a man who recently died. Milano did not provide a means of contact or state how he knew the information he reported.⁴

In response to Frost's tip, Officer Betz of the Chelsea Police Department contacted and spoke to Frost over the phone. Linnell was known to Betz as Betz had arrested him four years earlier for distribution of heroin. During their conversation Frost told Betz that Linnell was selling heroin to her daughter and other individuals. She also informed him that Linnell was making comments about his drug dealing on social media and that he disliked the police. As a result Betz viewed Linnell's personal Facebook page and took screen shots of a picture of Linnell holding up an apparent significant amount of cash. Betz also took screen shots of apparent Facebook conversations between Linnell and others, including Frost's daughter, which referenced drug sales. Betz also reviewed Linnell's police records, and learned that Linnell was a registered sex offender and that on his most recent registration form submitted to the police department, he listed himself as homeless and unemployed.

Armed with this information, Betz conducted surveillance of 76 Clark Avenue and observed Linnell exit the house through a front door and walk to a small blue car parked outside the residence. Linnell and the occupants of the car had a brief conservation, after which Linnell returned to 76 Clark Avenue. Betz queried the license plate of the small blue car but received no questionable information from the motor vehicle registry.

Two days later, at around noon, Betz returned to 76 Clark Avenue in plain clothes and an unmarked cruiser to conduct further surveillance. He parked roughly one hundred yards down the street from 76 Clark Avenue. Some thirty minutes later, Betz observed Linnell exit 76 Clark Avenue and walk along the sidewalk in his direction. Betz also saw another man, later identified as Moises Ortiz, walking toward his cruiser from the opposite direction on the same sidewalk. When Linnell came within ten feet of Betz's cruiser, he put his left hand into his left pocket and withdrew a “small item,” which he held with a clenched fist. Once Linnell reached Betz's windshield, Linnell looked into the unmarked cruiser and appeared to make eye contact with Betz while continuing to walk toward Ortiz.

Ortiz and Linnell met directly next to, or within five feet of, Betz's vantage point. Betz, suspecting that a drug deal was about to occur, decided to exit his cruiser and approach. As he was exiting his cruiser he observed Linnell put his right hand into his right pocket. Betz quickly secured Linnell's waist and grabbed his right arm while his hand was still in his pocket. When Betz ordered Linnell to remove his hand, it revealed a “small clear plastic baggie twist of a fine brown powder consistent with Heroin.” Both Linnell and Ortiz were placed under arrest and Betz called three other uniformed police officers to the scene. Ortiz subsequently told the police that he was there to “cop,” a street term for purchasing drugs.

The officers then approached 76 Clark Avenue to secure those premises before a search warrant was sought. While Betz and two other officers went up to the front porch and knocked on the door, Detective Torres simultaneously circled around the side yard of the house. Defendant Stewart's mother, Elizabeth, came to the door. After some back-and-forth, she told Betz in a loud voice that she was alone in the home. Meanwhile, Torres, now at the side of the house, was looking through a bedroom window. With an unobstructed view, Torres saw another woman sitting on a bed and what appeared to be drugs located on a shelf. Torres used his radio to tell Betz what he saw. Now aware that Elizabeth Stewart's statement about being alone was false, Betz and the other officers decided to enter the apartment by force. Once inside, the officers conducted a protective sweep of the apartment and found a rifle, ammunition, bags of heroin, and a digital scale. The woman that Torres observed on the bed was identified as Frost's daughter, Christyna Bidder.

Following the protective sweep, Betz left to seek a search warrant, and other officers stayed on the scene with Elizabeth Stewart and Bidder. While the officers awaited the search warrant, defendant Stewart arrived at 76 Clark Avenue and was arrested on outstanding arrest warrants. Betz later returned with a search warrant and the apartment was searched.

In the end, Linnell, for the drugs recovered from his hand, was charged with one count of possession of a class A substance (heroin) with intent to distribute. Stewart, as a result of the items seized from the apartment, was charged with one count of possession of a class A substance (heroin), one count of possession of a firearm without a firearm identification (FID) card, one count of improper storage of a firearm, and one count of possession of ammunition without an FID card. Linnell filed a motion to suppress his statements and any physical evidence taken from his person. He also joined Michael Stewart's motion to suppress the evidence seized from 76 Clark Avenue.

Both motions were allowed.⁵ The judge ruled that Betz lacked reasonable suspicion to believe that Linnell was engaging in a street-level drug transaction and thus seizing him while his hand was in his pocket was improper. The judge also suppressed all of the evidence found before and pursuant to the search warrant executed at 76 Clark Avenue on the basis that probable cause was not established to believe drugs would be located at that address.

Discussion. On appeal, the Commonwealth presents three arguments: first, that Betz had reasonable suspicion or probable cause to stop or arrest Linnell on the sidewalk for possession with the intent to distribute the heroin discovered in his hand; second, that Betz had probable cause to arrest Linnell for violating the sex offender registration statute; and third, that the warrant application was supported by probable cause and the officers were permitted to secure or “freeze” the exterior and interior of 76 Clark Avenue while waiting for the warrant.

“In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law.” Commonwealth v. Depiero, 473 Mass. 450, 453 (2016), quoting Commonwealth v. Anderson, 461 Mass. 616, 619, cert. denied, 568 U.S. 946 (2012). We also “make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

a. Reasonable suspicion to stop Linnell. To begin, the Commonwealth and each defendant agree that Linnell was seized when Betz secured his waist and grabbed his right arm. Therefore, in order for such behavior to pass constitutional muster the officer must had “reasonable suspicion that the person seized ha[d] committed, [was] committing, or [was] about to commit a crime.” Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). Here, the Commonwealth asserts that at the time Betz grabbed defendant Linnell he had reasonable suspicion to do so. As support, they rely on the tips from Frost and Milano, Linnell's Facebook page, Betz's personal knowledge stemming from his arrest of Linnell four years prior, observations made of Linnell leaving 76 Clark Avenue over two separate days, and, finally, observations of Linnell reaching into his pocket and removing an object with a clenched fist. We disagree.

Like the motion judge, we conclude that Betz lacked reasonable suspicion to effectuate a stop at the time of Linnell's seizure. As a preliminary matter, we conclude that the Frost and Milano tips are unreliable, as they fail to satisfy both factors from the familiar Aguilar-Spinelli test.⁶ Neither tip contains any firsthand knowledge that Linnell was in fact dealing in heroin. And while Frost supplied the police with her contact information, Milano's identification is entirely unverified and was submitted via Facebook, an inherently unreliable social media platform.⁷ Betz's visit to Linnell's Facebook page did not corroborate Frost and Milano's claims. “A casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation” is not sufficiently trustworthy. Commonwealth v. Robinson, 403 Mass. 163, 165 (1988), quoting Spinelli v. United States, 393 U.S. 410, 416 (1969).

While Betz did arrest Linnell four years earlier for selling heroin, personal knowledge of prior bad acts alone cannot justify reasonable suspicion. Commonwealth v. Cordero, 477 Mass. 237, 246 (2017) (“the defendant's prior convictions, without further specific and articulable facts indicating that criminal activity was afoot, could not create reasonable suspicion”). Beyond that, we are hard pressed to say what inculpatory evidence was gained by Betz's two surveillance observations of 76 Clark Avenue. On the first occasion, Betz simply saw Linnell exit the building, have a brief conversation with occupants of a car outside, and return inside. There was no indication that a drug transaction took place. Likewise, Linnell's behavior as described on the second occasion was similarly benign. Betz witnessed Linnell put his hand in his pocket and remove something small. Betz never observed the object. Linnell made eye contact with Betz and continued walking. Without more we conclude that Betz lacked reasonable suspicion to stop Linnell for drug related activity.⁸

b. Probable cause to arrest for sex offender registration violation. Alternatively, the Commonwealth asserts that Betz had probable cause to arrest Linnell for violating the sex offender registration statute. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense” (citation omitted). Commonwealth v. Ilya I., 470 Mass. 625, 627-628 (2015). Because Linnell had claimed to be homeless on his sexual offender registration form, the Commonwealth argues that his arrest was justifiable on the grounds that he was in fact living at 76 Clark Avenue and thus had lied on the registration form.⁹

The argument is unavailing, as evidence that Linnell was living at 76 Clark Avenue is sparse. Betz saw him exit and return to the building two times, each on a different day. Milano's tip mentioning 76 Clark Avenue did not state the relationship between Linnell and that address. And although the Commonwealth argues otherwise, the fact that there were mugs displayed behind Linnell in the photographs from Facebook only proves that he had access to a kitchen on the unspecified date the photographs were taken. This information simply is not enough to create probable cause to believe he resides at 76 Clark Avenue.

c. Search of 76 Clark Avenue. Lastly, the Commonwealth argues that the police legally secured the interior and exterior of 76 Clark Avenue, and that the subsequent search warrant was supported by probable cause. “[S]ecuring a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.” Segura v. United States, 468 U.S. 796, 810 (1984). Probable cause to search a home requires “a substantial basis for concluding that evidence connected to the crime will be found on the premises” (citation omitted). Commonwealth v. Escalera, 462 Mass. 636, 642 (2012). When the search pertains to drugs, “police must provide ‘particularized information based on police surveillance or otherwise, that would permit a reasonable inference that the defendant likely kept a supply of drugs’ in the home.” Id. at 643, quoting Commonwealth v. Pina, 453 Mass. 438, 442 (2009).

Here, the officers lacked probable cause to secure the home or to validate the issuing warrant. After properly excluding the drugs and other evidence acquired during the stop of defendant Linnell, the remaining evidentiary nexus connecting 76 Clark Avenue to a supply of drugs was minimal. Betz had prior knowledge that Linnell had dealt drugs four years earlier, but the initial observation of Linnell leaving 76 Clark Avenue revealed nothing, and the information from Linnell's Facebook page failed to tie him to that address. As stated supra, we also agree with the motion judge that the tips from Frost and Milano were unreliable. As a whole, the body of evidence did not provide sufficient grounds to secure the home or perform a search. See Pina, 453 Mass. at 441-442. As such, any evidence discovered in the course of the stop of Linnell, the warrantless entry of 76 Clark Avenue, or the warranted search of the same property must be suppressed.

Order partially allowing defendant Stewart's motion to suppress affirmed.

Order allowing defendant Linnell's motion to suppress affirmed.

FOOTNOTES

3.   Facebook Messenger is a mobile tool that allows Facebook users to send instantaneous messages to other users on the platform.

4.   The posts from Milano were as follows: “Cory linnell big heroin dealer in Chelsea and he may be involved in the shooting on Washington ave. Just saying”; “Cory linell 76 clark ave selling heroin and has illegal firearm and sold bad bag of heroin to a james neuner a Iraq vetran go pick him up before he kills another innocent person. What the fuck.”

5.   For convenience we refer to Stewart's motion as having been “allowed,” but the motion judge denied so much of his motion as sought to suppress certain postarrest statements he made to police. There is no cross-appeal regarding that ruling.

6.   “Where an unnamed informant's tip is relied on by the police as supplying probable cause to arrest and to search, art. 14 requires ․ that the Commonwealth must demonstrate some of the underlying circumstances from which (a) the informant gleaned his information (the ‘basis of knowledge’ test), and (b) the law enforcement officials could have concluded the informant was credible or reliable (‘the veracity test’).” Commonwealth v. Welch, 420 Mass. 646, 650 (1995), citing Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969).

7.   Betz also testified that a tip received on social media could be a “total naked assertion.”

8.   As a result we need not turn to the issue of probable cause to arrest for the drug violation. Reasonable suspicion is a parallel inquiry to probable cause, but uses a lower threshold. See Commonwealth v. Alvarado, 423 Mass. 266, 268-269 (1996).

9.   Knowingly failing to provide notice of a change of address, or knowingly providing false information, violates G. L. c. 6, § 178H (a). First time offenders face a minimum of six months imprisonment. Id.