COMMONWEALTH v. HENDRICK ORTIZ SUAREZ (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in November 2023, Hendrik Ortiz Suarez, the defendant, was found guilty of one count of distribution of a class A substance in violation of G. L. c. 94C, § 32 (a), and one count of distribution of a class B substance in violation of G. L. c. 94C, § 32A (a). On appeal, the defendant argues that the motion judge erred in denying a motion to suppress evidence and that the trial judge erred in admitting text messages and photographs that were related to uncharged prior bad acts and were propensity evidence. We affirm denial of the motion to suppress. However, because we conclude that the admission of the text messages and photographs was error, we vacate the judgments.

Background. We summarize the findings of the motion judge at the motion to suppress hearing, all of which were supported by the evidence. On May 27, 2022, detectives Wes Regan and Robert Cunningham of the Salem police department were working the 4 P.M. to midnight shift. The detectives were informed that earlier the same day, a resident of 9 Cedar Avenue died, likely by drug overdose. Both the deceased and her husband, John DeVoe, were known to the police to be drug users. The detectives were also aware of complaints the same week about suspicious activity on the street, and that it was likely drug activity. The complaints identified a white sport utility vehicle (SUV) that had been making short stops on Cedar Avenue.¹

Around 7:30 P.M. that evening, a white Acura SUV with a Florida registration drove onto Cedar Avenue and stayed for approximately fifteen seconds. At approximately 9 P.M., Detective Cunningham saw John DeVoe riding his bicycle from the direction of 9 Cedar Avenue to the 3N Convenience Store, where he waited in the parking lot. A short time later, what appeared to be the same white Acura SUV with a Florida registration pulled into an area near the parking lot of the 3N Convenience Store. From behind the SUV, Detective Regan saw DeVoe reach through the passenger-side window and hand something to the driver, who was later identified as the defendant, and saw DeVoe take something back from the defendant. Detective Regan believed the interaction to be a drug transaction and stopped the driver of the Acura. Detective Regan asked for the defendant's license and registration and asked him to exit the vehicle. During their conversation, the defendant denied meeting anyone at the 3N Convenience Store or in the parking lot; Detective Regan believed the defendant to be lying, as he had witnessed the interaction with DeVoe.

After the interaction with the defendant at the window of the white Acura SUV, DeVoe biked away from the 3N Convenience Store toward Cedar Avenue. Detective Cunningham stopped DeVoe on the sidewalk and asked, “where are the drugs you just bought?” DeVoe replied that they were on the ground in a purple cup. Detective Cunningham located one “twist,” or small bag of what he believed to be “crack” cocaine, in the purple cup at DeVoe's feet. Later on a second “twist” was found inside the first, which was believed to contain fentanyl. Detective Cunningham told Detective Regan that DeVoe had just purchased drugs that were found on the ground in a purple cup, and Detective Regan then handcuffed, pat frisked, and arrested the defendant. During the patfrisk, Detective Regan recovered $516 and two cell phones. An inventory search of the Acura was completed, during which a car rental agreement in the defendant's name was located, as well as another cell phone. No drugs were discovered on the defendant or as a result of the inventory search. The Acura was blocking traffic and was subsequently towed per police policy.

At the hearing on the motion to suppress, the motion judge credited the testimony of the detectives and concluded that the police had reasonable suspicion to stop the defendant and issue an exit order as well as probable cause to arrest him. The motion judge determined that the inventory search was proper as well. He denied the defendant's motion to suppress.

Prior to trial, the Commonwealth submitted a motion in limine seeking to admit evidence of prior bad acts, including two months of text messages extracted from two of the cell phones recovered during the patfrisk of the defendant as well as photographs saved on one of the phones depicting large sums of money. The defendant filed a motion in limine seeking to exclude the evidence of prior bad acts, including any photographs of money recovered from the defendant's phone and any chains of text messages showing evidence of drug transactions. The trial judge allowed the Commonwealth's motion as to text messages and photographs from within the two weeks prior to the defendant's arrest.

In his rulings of law, the trial judge concluded that the text messages and photographs within two weeks of the defendant's arrest were “relevant and admissible for the limited purpose of establishing a pattern of operation (regarding street level drug distribution), as well as his motive (financial), knowledge (of the controlled substances) and intent (intentional distribution of controlled substances).” The trial judge excluded the text message and photographs outside of the two-week window prior to the defendant's arrest “after balancing the probative value of the evidence and its prejudicial effect. The [judge] determine[d] that the temporal proximity beyond that point reduces the evidence's probative value such that it is outweighed by its prejudicial value.” The trial judge twice instructed the jury that they were only to consider the evidence for limited purposes, including “whether the evidence establishes either a pattern of operation, motive, knowledge, or intent of the defendant ․ [Y]ou may not use it to conclude that if the defendant committed other acts, he may have committed these crimes as well.”

The jury found the defendant guilty of both charged counts. The defendant appealed.

Discussion. 1. Motion to suppress. “In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error ․ We review independently the application of constitutional principles to the facts found” (citation omitted). Commonwealth v. Cordero, 477 Mass. 237, 241 (2017).

For a stop to be justified under art. 14 of the Declaration of Rights of the Massachusetts Constitution, the police must have “reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime.” Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). “To meet the reasonable suspicion standard ․, police action must be based on specific, articulable facts and reasonable inferences therefrom rather than on a hunch” (quotations and citation omitted). Commonwealth v. Lyons, 409 Mass. 16, 19 (1990). Detective Regan witnessed what he believed to be a drug transaction, and therefore the standard was satisfied here.

The defendant does not challenge the stop or the exit order but argues that the defendant's mere association with DeVoe was insufficient to create probable cause for the defendant's arrest. “[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. Vick, 90 Mass. App. Ct. 622, 627 (2016). The defendant argues that merely meeting DeVoe is insufficient to create probable cause, and that in order to create probable cause, one of the surveilling officers would have had to see DeVoe holding the purple cup after his interaction with the defendant to create a reasonable inference on which to base probable cause. We disagree.

Four factors relevant to whether probable cause existed during a drug transaction include: “(1) the observation of an unusual transaction; (2) furtive actions by the participants; (3) the event occurs in a location where the police know drug transactions are common; and (4) an experienced officer on the scene regards the event as consistent with a street-level drug transaction.” Commonwealth v. Sanders, 90 Mass. App. Ct. 660, 661 n.1 (2016), citing Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). The motion judge's factual findings support each of these four factors. First, the defendant drove up to DeVoe, a known drug user, in the shadows outside of a convenience store, where DeVoe approached the front passenger window even though there was no passenger. The driver and DeVoe reached toward each other through the window, and Detective Regan witnessed a brief exchange. Immediately after the exchange, the defendant drove away in a white Acura SUV, which was consistent with the description of a car given as part of complaints of drug activity on Cedar Avenue. When questioned, the defendant denied meeting anyone at the 3N Convenience Store.

Second, while the actions of the defendant and DeVoe were not furtive, the transaction was extremely brief. See Commonwealth v. Kennedy, 426 Mass. 703, 708-709 (1998) (“quickness of the interaction ․ reasonably could be interpreted by the officer as suspicious conduct, similar to the suspicious conduct of [a] ‘furtive’ transaction”). Third, drug transaction activity had been reported in the area. Finally, Detective Regan had been a police officer for seven years, and while he testified he could not see exactly what had been exchanged between the defendant and DeVoe, he could draw an inference that he witnessed a drug transaction. He was in constant radio communication with Detective Cunningham, who informed him that DeVoe had “just bought” drugs, which were “right there in the purple cup.” This admission by DeVoe that he had just purchased drugs created a sufficient basis to establish probable cause to arrest the defendant. See Vick, 90 Mass. App. Ct. at 627. Accordingly, the defendant's motion to suppress was properly denied. See Cordero, 477 Mass. at 241.

2. Prior bad acts. Because the defendant's objection to the admission of the text messages and photographs was preserved at trial, we review the admissions for prejudicial error. See Commonwealth v. Reyes, 483 Mass. 65, 78 (2019). “Evidentiary rulings determining relevance, probative value, and prejudice are left to the sound discretion of the trial judge.” Commonwealth v. West, 487 Mass. 794, 805 (2021).

A defendant's prior bad acts are not admissible to show a defendant's bad character or propensity to commit the crime charged. See Commonwealth v. Almeida, 479 Mass. 562, 568 (2018); Commonwealth v. Mullane, 445 Mass. 702, 708-709 (2006). However, such evidence may be admissible to “establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation” (citation omitted). Almeida, supra. See Mass. G. Evid. § 404(b)(2) (2026). “Even if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014), S.C., 93 Mass. App. Ct. 251 (2018), cert. denied, 142 S. Ct. 151 (2021).

“When assessing whether the risk of unfair prejudice outweighs the probative value of the challenged evidence, the factors a reviewing court considers may include (1) whether the trial judge carefully weighed the probative value and prejudicial effect of the evidence introduced at trial ․; (2) whether the judge mitigated the prejudicial effect through proper limiting instructions ․; (3) whether the challenged evidence was cumulative of other admissible evidence, thereby reducing the risk of any additional prejudicial effect ․; and (4) whether the challenged evidence was so similar to the charged offense as to increase the risk of propensity reasoning by the jury.”

West, 487 Mass. at 807. “We will affirm a judge's decision to allow the admission of prior bad act evidence unless the judge made a ‘clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives’ ” (citation omitted). Id. at 806-807, quoting Commonwealth v. Facella, 478 Mass. 393, 407 (2017).

The defendant argues that the text messages and the thumbnail photographs admitted at trial were not admitted for a proper purpose, and that even if they were, given the volume of the texts and photographs, the risk of unfair prejudice to the defendant outweighed any probative value the evidence may have provided. The trial judge admitted the text messages and photographs for the “purpose of establishing a pattern of operation (regarding street level drug distribution), as well as his motive (financial), knowledge (of the controlled substances) and intent (intentional distribution of controlled substances).”

As the Commonwealth conceded in its brief, the text messages were not admissible to establish a pattern of operation, because that evidence did not show “a uniqueness of technique, a distinctiveness, or a particularly distinguishing pattern of conduct common to the current and former incidents.” See Commonwealth v. Brusgulis, 406 Mass. 501, 506 (1990), S.C., 41 Mass. App. Ct. 386 (1996). Therefore, the probative value of the text messages is limited to the fact that they showed the defendant's knowledge of the particular controlled substances at issue, his financial motive, and his intent to engage in drug transactions. See Almeida, 479 Mass. at 568.

Here, the trial judge weighed the prejudicial effect of the evidence and its probative value and attempted to limit the prejudicial effect by only allowing messages starting two weeks prior to the charged incident. See West, 487 Mass. at 807. The trial judge also instructed the jury twice that they may not take the text messages as evidence that the defendant committed the charged conduct. See id.

However, the messages were not cumulative of other evidence, but instead were evidence of other, uncharged conduct. See West, 487 Mass. at 807. And, crucially, the one hundred pages of text messages apparently setting up a multitude of drug transactions significantly overshadowed the one drug transaction for which the defendant was charged, increasing the risk of the jury using propensity reasoning. See id.; Commonwealth v. Figueroa, 107 Mass. App. Ct. 60, 66 (2026) (“it was the excessive, disproportionate volume and detail of the [prior bad acts] evidence ․ that created the risk of unfair prejudice. The alleged conduct was not so distinctive or unusual that its probative value outweighed this risk of unfair prejudice to the defendant”).

The trial judge also admitted the thumbnail photographs, showing large sums of money, as evidence of the defendant's financial motive for selling drugs. The defendant argues that the photographs were not probative, as motive was not material to the charged offenses. “Evidence is relevant if it has a rational tendency to prove an issue in the case or render a desired inference more probable than it would be [otherwise]” (quotations and citations omitted). Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). While the photographs of large sums of money could be used to infer that the defendant wished to have or earn money, they were not probative of the fact that the defendant sold drugs to DeVoe in the charged incident. See id. Indeed, where the pictures of the money bore no relation to the observed transaction, they are most relevant to showing that the defendant has a criminal personality, an improper purpose. See Almeida, 479 Mass. at 568. The risk of unfair prejudice for this improper purpose outweighed the photographs’ minimal probative value. See Crayton, 470 Mass. at 249.

We thus conclude that the trial judge erred in admitting the multitude of text messages and photographs, as the risk of undue prejudice outweighed the probative value of the evidence, and the limiting instructions were insufficient to overcome the prejudice created by the admission of the evidence. The judgments are vacated, the verdicts are set aside, and the case is remanded to the District Court to allow the Commonwealth to retry the defendant if it so chooses.

So ordered.

FOOTNOTES

1.   In his oral findings, the motion judge made statements regarding Cedar Avenue and Cedar Street. All references were to Cedar Avenue.