COMMONWEALTH v. NAVARRO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After stopping the car that the defendant was driving, the police discovered a blue canvas bag that contained a substance believed to be cocaine. Based on this, he was charged with two counts of trafficking in cocaine in a quantity of between thirty-six and less than one hundred grams.² After a Superior Court judge denied the defendant's motion to suppress the cocaine, the defendant filed an interlocutory appeal with approval of a Supreme Judicial Court single justice. We affirm the order denying the motion to suppress.

Background. In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings absent clear error but conduct an independent review of the ultimate findings and conclusions of law. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). We recite the facts as the judge found them, supplementing with undisputed testimony that the judge implicitly or explicitly credited. Id.

As part of an investigation of cocaine distribution, the police obtained a search warrant for 22 Beaudry Street, second floor apartment. As detailed in the affidavit accompanying the application for the search warrant, the warrant was based in part on three controlled buys from the target and information from a confidential informant whose reliability had been demonstrated. The application provided a sufficient nexus between the target's illegal drug activities and his home. For example, the affidavit in support of the application detailed that the confidential informant had been inside the target's apartment several times and had personally observed the target in possession of a large quantity of cocaine. The application also noted that the confidential informant had bought cocaine from the target during controlled buys, had observed the target sell cocaine to other individuals at the apartment, and understood the target to be making additional sales at nearby locations.

While preparing to execute the warrant, police observed the defendant drive up to 22 Beaudry Street, get out of his car, and meet the target's girlfriend near the front door.³ In a brief exchange, she handed the defendant a blue canvas bag, which he placed in his car before driving away. Suspecting that they had just witnessed a drug exchange, police followed the defendant and pulled him over soon afterwards. During the stop, officers observed the defendant reach under the seat. Police arrested the defendant and retrieved the blue canvas bag, which contained ninety-nine grams of cocaine, from under the seat.

Discussion. We begin by addressing what the Commonwealth needs to show. Although the judge concluded that the police had probable cause to search the defendant's vehicle, he also concluded that the search could be justified even if the police possessed only reasonable suspicion. As to this alternative ground, the judge reasoned that reasonable suspicion allowed the police to stop the defendant's car and to order him out of it. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020) (“exit order is justified during a traffic stop where ․ police have reasonable suspicion of criminal activity”). According to the judge, the search under the seat would then have been justified by concerns for officer safety based on the defendant having been seen reaching under the seat when he was stopped. However, there was no testimony about the police conducting a pat-down of the blue bag, or what they found through taking such an action. For all that appears on the record, the police simply retrieved the bag from under the seat and opened it to see what was inside. Such a course of conduct would amount to an investigative search, for which the police needed probable cause. See Commonwealth v. Cast, 407 Mass. 891, 908 (1990) (“a lawful warrantless search of a motor vehicle, based on probable cause to search the vehicle, extends to all containers, open or closed, found within”). We therefore turn to that question.

“[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.” Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). “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 [persons], not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175 (1949).

The defendant points out that while both he and the target's girlfriend had been seen on prior occasions by the surveillance team at 22 Beaudry Street, neither had been present for any of the controlled buys from the target nor otherwise involved in known criminal activity. Relying on Commonwealth v. Clark, 65 Mass. App. Ct. 39 (2005), the defendant argues that without evidence that either he or the girlfriend were involved in drug trafficking, police lacked probable cause to believe that they had participated in a drug exchange on the day of the defendant's arrest. Clark is distinguishable. In that case, two individuals with no known connections to criminal activity exchanged an unidentifiable object for money on a busy street, leaving the Commonwealth to argue that the fact that the exchange had taken place in a “high crime, high drug area,” id. at 40, was sufficient to elevate the police officer's “mere hunch” to reasonable suspicion. Id. at 44.

Here, police had received information from a reliable confidential informant that the target was selling “large amounts of cocaine” out of 22 Beaudry Street and had confirmed that information with three controlled buys from the target. The police had previously seen the defendant briefly enter the target's apartment and knew the identity of the target's girlfriend. On the day that the police were preparing to execute a properly issued warrant on the target, the defendant appeared at the target's address to receive a blue canvas bag from the target's girlfriend. A detective who observed the exchange and whose training, experience, and observations the judge credited concluded that this was a narcotics transaction.

In short, this was more than an exchange between two unknown individuals in a “high crime ․ area,” Clark, 65 Mass. App Ct. at 40, it was an exchange between two individuals connected to the target of a valid search warrant at the site of a known drug operation. Based on these established facts, undisputed by the defendant, we agree with the judge that the police had probable cause to believe that there were illegal drugs inside the blue bag that the defendant had placed inside of his car.⁴ This provided a permissible basis both to stop the car and to look inside the blue bag. See Commonwealth v. Motta, 424 Mass. 117, 120-124 (1997) (under so-called “automobile exception,” police may search motor vehicles without warrant if they have probable cause). The order denying the motion to suppress therefore is affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   The Commonwealth later entered a nolle prosequi on the second count.

3.   Police recognized the defendant from prior surveillance as someone who had visited the target's apartment on prior occasions.

4.   To the extent that the defendant argues that there could have been innocent reasons for the defendant's receipt of a canvas bag from the target's girlfriend, the defendant has not shown the motion judge's finding that “[t]here was no other credible reason for her to be handing a bag to the defendant other than to facilitate a drug sale” to be clearly erroneous. In any event, the Commonwealth does not bear the burden of disproving all conceivable alternative explanations at the motion to suppress stage. See Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989), quoting Commonwealth v. Bond, 375 Mass. 201, 210 (1978) (“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’ ”).