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Appeals Court of Massachusetts.



Decided: March 16, 2021

By the Court (Milkey, Kinder & Sacks, JJ.1)


Based on items that police discovered in the defendant's car during a traffic stop, the defendant was indicted for trafficking in cocaine and fentanyl. After his motion to suppress was denied, the defendant entered into a conditional plea agreement pursuant to Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499 (2019), under which he agreed to plead guilty to both charges while reserving the right to appeal from the order denying his motion to suppress (including with respect to the search of the car). He now has filed such an appeal, arguing, inter alia, that the search of the car was unsupported by probable cause. For the reasons that follow, we agree.

Background. With one key exception noted below, the essential facts are not in dispute. Trooper Patrick O'Keefe was patrolling Interstate-495 (I-495) during the early morning hours of May 12, 2018. At approximately 1:30 a.m., he spotted a car in the Westford portion of I-495 traveling in a northbound lane, that is, in the direction of Lawrence. The car had New Hampshire licenses plates and O'Keefe learned from running the plates that the car was registered to the defendant who lived in Keene, New Hampshire. Believing that Lawrence served as a source city for narcotics in the greater Keene area, O'Keefe developed what he acknowledged was a “hunch” that the defendant was traveling to Lawrence to pick up illegal drugs.

Armed with this information, O'Keefe followed the defendant's car for a while, but observed no basis for stopping it. O'Keefe eventually stationed himself on the southbound lanes of I-495 in Chelmsford for the express purpose of trying to intercept the defendant's car should it return. While waiting for the car to return, O'Keefe checked the defendant's criminal record and discovered that he had two drug arrests from years earlier. O'Keefe also alerted Trooper Christopher Lopilato, who was patrolling in the same general area, about the vehicle.

At about 2:30 a.m., that is, an hour or so after he had seen the defendant driving north, O'Keefe spotted the defendant's car traveling in a southbound lane. He followed close to the defendant's car for approximately two and one-half miles looking for a traffic violation. After finally observing the car's passenger side tires drift across the “fog line” that separated the travel lanes from the breakdown lane, O'Keefe pulled the car over.

The defendant, who was driving, produced his license and registration. O'Keefe proceeded to ask the defendant a series of questions about where he had been and where he was going. The defendant acted nervously during the questioning and gave answers that were inconsistent with O'Keefe’s having observed him on I-495 one hour earlier. After directly accusing the defendant of lying, O'Keefe was able to get the defendant to admit that he had traveled to Lawrence and now was returning to Keene. Around this time, Trooper Lopilato arrived as backup. Without having seen any drugs or drug paraphernalia in the car, O'Keefe ordered the defendant out of the car, handcuffed him, and pat frisked him. Similar actions were taken with the car's passenger. No weapons or drugs were found on either occupant. However, during a search of the car, the troopers eventually found drugs and various drug paraphernalia, primarily inside of a backpack and a camera bag.

Among the paraphernalia found was a pipe suitable for smoking crack cocaine. But there is an important dispute over when and how the troopers discovered it. Lopilato testified that he observed the pipe protruding out of a bag wedged between the center console and the passenger seat while O'Keefe was questioning Pratt. That is, he claimed to have observed the pipe in plain view before he and O'Keefe searched the car.2 The judge did not credit this testimony.3 Nevertheless, the judge found the search of the car justified and therefore denied the motion to suppress.

Discussion. For purposes of our analysis, we can pass over many of the issues that the defendant seeks to raise. We assume arguendo that the traffic stop was valid, despite O'Keefe’s admission that he pursued the defendant to investigate his hunch that the defendant was involved in illegally distributing narcotics.4 See Commonwealth v. Buckley, 478 Mass. 861, 865-866 (2018), citing Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). We also pass over the propriety of O'Keefe’s pointed questioning of the defendant during a routine traffic stop and the validity of the exit order. Instead, we focus on the validity of the subsequent search of the defendant's car. As it did in the Superior Court, the Commonwealth defends this search on the theory that during the course of a valid traffic stop, the troopers developed probable cause to believe that illegal drugs were inside the vehicle.5

Key to the Commonwealth's claim to probable cause is its contention that the troopers saw the pipe in plain view before the search began.6 As noted, however, the judge declined to credit the evidence supporting that contention. Instead, the judge found that the troopers discovered the pipe by looking inside the bag during their investigatory search (making the discovery of the pipe part of the search, not a potential justification for it).

The Commonwealth argues that the judge's finding that Lopilato did not observe the crack pipe in plain view is clearly erroneous. In support of this argument, the Commonwealth argues that the testimony of the two troopers was detailed, internally consistent, and consistent with each other. The Commonwealth also maintains that the defendant did not directly challenge such testimony on cross-examination or proffer affirmative evidence to contradict it. Whatever the accuracy and force of such contentions, they were for the judge to consider in assessing the troopers’ credibility. Once the judge determined that the troopers were not testifying truthfully about whether the pipe was in plain view, we are bound to accept that determination. See Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978) (“Evaluations of credibility are, of course, within the exclusive province of the trier of fact”). See also Commonwealth v. Jones-Pannell, 472 Mass. 429, 432 (2015) (“The Commonwealth essentially asks us to do what our case law proscribes: to rely on testimony that was neither explicitly nor implicitly credited by the motion judge, otherwise put, that we in essence make additional findings ․ based on our own view of the evidence”).7

Contrary to the Commonwealth's protests, nothing required the judge to explain why he believed the troopers were not telling the truth about the pipe.8 Unlike in Commonwealth v. Medina, 485 Mass. 296, 305 n.6 (2020), on which the Commonwealth relies, the judge's credibility determination did not “unnecessarily impair[ ] our ability on the entire evidence to evaluate whether the judge's findings adequately support his [or her] ultimate conclusions of law” (citation omitted).

As the Commonwealth acknowledged at oral argument, without being able to claim that the crack pipe was observed in plain view before the search began, the Commonwealth cannot demonstrate that the troopers had probable cause to search the defendant's car. Even assuming, arguendo, that the troopers’ pointed questioning of the defendant after the traffic stop was proper,9 that questioning established at best that the defendant was nervous; that he in fact had traveled to Lawrence; and that initially he lied about going there. That, the defendant's criminal record, and O'Keefe’s hunch that the defendant had gone to Lawrence to acquire illegal narcotics to serve the Keene market, does not add up to probable cause that the defendant had such drugs in his car. Because the police conducted an investigatory search of the defendant's car without probable cause, the search was invalid. See Commonwealth v. Motta, 424 Mass. 117, 124 (1997). Accordingly, the motion to suppress should have been allowed.

The question remains what specific form of relief is appropriate. If the defendant had not entered into a conditional plea agreement and instead was challenging the denial of his motion to suppress in an appeal of his convictions, we would vacate the defendant's convictions. However, the governing rule appears to provide for a different process when an appeal is taken pursuant to a conditional plea agreement. See Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499 (2019). Under the terms of that rule, the defendant reserved the right to challenge the order denying his motion to suppress. See id. Having prevailed on that issue, he may now withdraw his guilty pleas in Superior Court. See id. Once the defendant has done so, the rule commands that “the judge shall dismiss the complaint or indictment on those charges, unless the prosecutor shows good cause to do otherwise.” Id.

We therefore reverse the order denying the defendant's motion to suppress and remand this case to the Superior Court where the defendant may seek further relief in accordance with Mass. R. Crim. P. 12 (b) (6). See also Mass. R. A. P. 28 (b), as appearing in 481 Mass. 1659 (2019) (“If the rescript has the effect of entitling the defendant to immediate release from custody, counsel for the defendant, the Commonwealth, and the clerk of the lower court shall immediately take any action necessary to ensure that the defendant is released from custody forthwith”). Pursuant to Mass. R. A. P. 23 (b), as appearing in 481 Mass. 1653 (2019), we sua sponte order that the rescript be expedited and that, subject to the provisions of Mass. R. A. P. 23 (c), as appearing in 481 Mass. 1653 (2019), the rescript shall issue in seven days.10

So ordered.



2.   O'Keefe testified that Lopilato pointed the pipe out to him sometime after both occupants were removed from the vehicle.

3.   The Commonwealth filed a motion seeking additional findings on this point. The judge reiterated that he did not believe the troopers’ testimony that the pipe was “protruding [from the bag] or visible in any way to police,” while declining the Commonwealth's request for further explanation why he found that the troopers were not telling the truth about this point.

4.   The Commonwealth argues that the defendant did not reserve a few of the issues he now pursues on appeal in his conditional plea argument. We need not reach this issue.

5.   The Commonwealth makes no effort to try to defend the search on any other ground, such as the troopers’ safety. In addition, O'Keefe acknowledged that he had no safety concerns.

6.   We need not decide whether the police necessarily would have had probable cause to search the car if the judge had credited the testimony about the pipe.

7.   Nothing in the two cases on which the Commonwealth principally relies suggests that we have free license to make our own credibility determination with respect to the testimony about the placement of the pipe. See Commonwealth v. Medina, 485 Mass. 296, 305 & n.6 (2020) (criticizing motion judge for blanket “statement that ‘[a]ny facts relayed at the hearing but not recited below were not credited by the [c]ourt’ ”); Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 310-311 (1981) (concluding that “exceptional” circumstances were present to justify appellate review of credibility determination where trial judge credited testimony of one witness over seven others).

8.   Similarly, the judge was not duty bound to make a specific finding with respect to one subsidiary issue, whether one of the troopers saw the passenger make a particular hand movement in the vicinity of where the pipe later was found. Even had the judge expressly credited that testimony, it would make no difference in our analysis.

9.   That assumption lies in serious doubt. See Commonwealth v. Cordero, 477 Mass. 237, 241-247 (2017) (addressing permissible bounds of routine traffic stop and under what circumstances such stop may be extended). In Cordero, a trooper's suspicions were aroused in very similar circumstances: the driver was traveling from what the trooper considered a “source city,” provided seemingly evasive answers to the trooper's questions, and had a record that included drug-related crimes. Id. at 239, 243-246. Nevertheless, the court concluded that such factors did not constitute even reasonable suspicion necessary to continue detaining the defendant after the traffic violations were addressed. Id. at 247. Here, O'Keefe confirmed that the defendant's license and registration were valid before even stopping him. After the defendant supplied those documents, all that remained was for O'Keefe to issue the defendant a citation for crossing the fog line.

10.   At oral argument, we put the Commonwealth on notice that -- should it lose this appeal -- it should be prepared for the possibility that the issuance of the rescript would be expedited.

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