COMMONWEALTH v. Sharon BROCKINGTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Sharon Brockington, was indicted for trafficking in cocaine in violation of G. L. c. 94C, § 32E (b), money laundering in violation of G. L. c. 267A, § 2, welfare fraud in violation of G. L. c. 18, § 5B, and food stamp benefit trafficking in violation of G. L. c. 18, § 5L. The defendant filed a motion to suppress and, after a two-day hearing before two different Superior Court judges, the motion was denied. She then pleaded guilty to possession of a class B substance with intent to distribute and welfare fraud, conditioned on her right to appeal the order denying the motion to suppress. On appeal, the defendant claims that (1) the stop of the vehicle in which she was a passenger was not justified by reasonable suspicion, and (2) the patfrisk of her person was not supported by either reasonable suspicion or probable cause. We vacate the order and remand for further proceedings.
Background. The motion judge found the following facts.2 Officer Vladimir Xavier of the Boston Police Department (BPD) lived across the street from a residence, located at 33 Vassar Street in the Dorchester section of Boston (residence), that he suspected was the site of recurring narcotics transactions. Mohamed Toure, a resident of 33 Vassar Street, once complained to Officer Xavier about a drug dealer who had appeared at Toure's home. Officer Xavier would observe vehicles at various hours throughout the day pulling up to the residence, where occupants of the vehicles would enter and leave a few minutes later. Officer Xavier contacted Officer Brigido Leon, a member of the BPD's Drug Control Unit (DCU), about what he had seen. Officer Leon, who had previously made numerous narcotics arrests in the area, began monitoring the residence several times per week in the spring of 2015.
On May 19, 2015, DCU observed two females pull up to the residence in a vehicle, enter the residence, and exit a few minutes later accompanied by Toure. The officers conducted an investigatory stop of the vehicle, and narcotics were recovered. On June 4, 2015, Officer Leon observed a vehicle with three occupants pull up to the residence. A black male exited the residence and entered the rear of the vehicle, where he remained for a few minutes before returning to the residence. DCU officers stopped the vehicle and recovered narcotics and paraphernalia from the passengers.
On January 2, 2016, sometime between midnight and 1 a.m., Officer Leon and Sergeant Detective Kenneth Gaines were monitoring the residence. A Honda hatchback pulled up to the residence. The defendant was seated in the front passenger seat; the driver was later identified as Dashawn Underwood. They exited the Honda and entered the residence, returning to their vehicle a few minutes later. A second vehicle, marked as a “Zipcar,” then pulled up next to the Honda. The driver of the Zipcar proceeded into the residence, and the defendant and Underwood followed. Shortly thereafter, the group left the residence and drove away in their respective vehicles.
At Officer Leon's request, uniformed officers stopped the Honda on the basis that Officer Leon had witnessed an illegal narcotics transaction. With the vehicle stopped, Officer Leon spoke with Underwood, who appeared to be very nervous and provided a false answer to Officer Leon's question. Sergeant Gaines spoke with the defendant on the passenger side of the vehicle. She falsely told him that she had come directly from her sister's house. After stating that she had rented the Honda, she was unable to produce a rental agreement. The defendant appeared nervous and avoided eye contact with Sergeant Gaines. She placed her hands out of his sightline several times, which caused him concern that she was concealing a weapon.
The defendant then complied with Sergeant Gaines's request to exit the Honda. Sergeant Gaines radioed for a female officer to conduct a patfrisk. Twelve to fourteen minutes later, Officer Jamila Gales arrived on the scene. While waiting, the defendant was not placed in handcuffs. Officer Gales conducted a patfrisk of the defendant and recovered narcotics from her person. She was placed under arrest and the Honda was searched.
On the basis of these findings, the judge concluded that (1) the stop of the vehicle was supported by reasonable suspicion; (2) the exit order was lawful; and (3) the patfrisk was permissible because the officers acted reasonably in light of the legitimate concerns for their safety.3
Discussion. When we review an order on a motion to suppress evidence, we accept the motion judge's subsidiary findings of fact absent clear error and review independently his ultimate findings and conclusions of law. Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
1. The motor vehicle stop. The defendant first claims that the police did not have reasonable suspicion to stop the Honda. We disagree.
“Police may effect a motor vehicle stop based on reasonable suspicion of criminal activity.” Commonwealth v. Barreto, 483 Mass. 716, 718 (2019). Reasonable suspicion “must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a ‘hunch.’ ” Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
The stop of the Honda was justified because Officer Leon, as an experienced narcotics investigator, observed a “silent movie” that revealed “a sequence of activity consistent with a drug sale.” Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 452 (2015). See id. at 452-453 (noting four relevant factors contributing to existence of probable cause:  the unusual nature of the transaction;  the furtive actions of the participants;  the encounter occurred in a location associated with drug activity; and  an experienced drug investigator considered the event[s] as revealing a drug sale” [quotations and footnotes omitted]). Officer Leon had been involved with the recovery of narcotics from individuals leaving the residence in the months preceding the defendant's arrest. Upon arriving at the residence in the early morning hours, the defendant -- like the prior suspects of DCU's investigation -- entered and exited within a few minutes. She then interacted with the driver of a Zipcar, who had also just briefly entered and exited the residence. Finally, Officer Leon was familiar with the area around the residence from other drug related arrests he had effected. Under these circumstances, the stop of the Honda was a permissible investigatory stop. See id. at 451-452. Compare Commonwealth v. Kearse, 97 Mass. App. Ct. 297, 302 (2020) (witnessing quick handshake in high-crime area, without more, was insufficient to establish reasonable suspicion for investigatory stop).
2. The patfrisk. The defendant next claims that the motion judge applied the wrong standard when he concluded that the patfrisk of her person was justified by reasonable suspicion. We agree. In addition, she contends that we should reject the argument, raised by the Commonwealth but not addressed by the motion judge, that the patrisk was a lawful search incident to arrest. We decline to address this issue in the first instance under the unusual posture of this case.
In Commonwealth v. Torres-Pagan, 484 Mass. 34, 37 (2020), the Supreme Judicial Court explained that to conduct a lawful patfrisk, “an officer needs more than safety concerns; he or she also must have a reasonable suspicion that the suspect is armed and dangerous.” A generalized safety concern is not enough. Id. at 38. Without the benefit of Torres-Pagan, the motion judge concluded that Officer Leon and Sergeant Gaines “entertained legitimate concerns for their safety, and that the decision to pat[ ]frisk [the defendant] ․ was a reasonable one under the circumstances.”
Applying Torres-Pagan to the facts of this case, we conclude that the patfrisk was not justified. The motion judge placed the “greatest significance” on the fact that the defendant moved her hands out of Sergeant Gaines's line of sight and toward her lap several times. In reaching his conclusion, the judge also relied on the late-night hour, the defendant's “unusual nervousness,” and that she provided false information in response to Sergeant Gaines's questions. These considerations did not create a reasonable belief that the defendant was dangerous and that she possessed a weapon. See Torres-Pagan, 484 Mass. at 39. Once Sergeant Gaines ordered the defendant out of the Honda, she not only complied, but she remained unrestrained for a lengthy period of time while waiting for a female officer to conduct the patfrisk. She was also outnumbered; as the judge found, Officer Leon and Sergeant Gaines received assistance from other uniformed officers who initiated the stop. The factors relied on by the judge amounted to a generalized concern for officer safety. Therefore, the patfrisk was unlawful. See id. at 40-41; Commonwealth v. Gomes, 453 Mass. 506, 512-513 (2009).
The Commonwealth asserts in the alternative that because the officers had probable cause to believe that the defendant was in possession of narcotics, the patfrisk constituted a lawful search incident to arrest. Although we may affirm the denial of the motion to suppress on any ground that finds support in the record, see Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997), we decline to do so in this case. The motion judge did not hear testimony from Officer Leon, Officer Xavier, or Sergeant Gaines. See note 1, supra. Probable cause requires more than reasonable suspicion; it requires a determination whether “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. Ilya I., 470 Mass. 625, 627-628 (2015), quoting Commonwealth v. Stewart, 469 Mass. 257, 262 (2014). Because the question of probable cause was not addressed by the judge, who was also without the benefit of hearing live testimony from these critical witnesses, the matter must be remanded for a new hearing. See Commonwealth v. Long, 482 Mass. 804, 809 (2019) (“Probable cause is a ‘fact-intensive inquiry, and must be resolved based on the particular facts of each case’ ” [citation omitted]). The hearing shall be conducted solely on the Commonwealth's alternative theory that the officers had probable cause to believe the defendant was in possession of narcotics and therefore the patfrisk constituted a lawful search incident to arrest.
Accordingly, the order denying the defendant's motion to suppress is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
vacated and remanded
2. Two different judges presided over the defendant's motion. The first judge presided over the first day, August 3, 2016, hearing testimony from Officers Vladimir Xavier and Brigido Leon, and Sergeant Detective Kenneth Gaines. On September 19, 2016, the judge allowed the Commonwealth's motion to recuse herself from the case. On March 2, 2017, the second judge presided over the second day of the hearing. He heard testimony from Officer Jamila Gales and the defendant. The parties agreed to allow the second judge to find facts based on the transcript from the first day of the suppression hearing. We refer to the second judge as the motion judge.
3. The defendant does not challenge the propriety of the exit order.
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