Opinion
19-P-1686
10-27-2020
COMMONWEALTH v. Felipe FERNANDES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Before us is the Commonwealth's interlocutory appeal from the portion of an order on the defendant's motion to suppress that suppressed evidence recovered during a warrantless search of the trunk of a car in which the defendant was a passenger. We affirm.
Background. We recite the relevant facts as found by the motion judge after an evidentiary hearing, supplemented where necessary by uncontroverted police testimony. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).
On November 21, 2018, Andover Police Detective Matthew Hughes was patrolling in the area of River Road in Andover. Hughes had been a police officer for eleven years, was assigned to the drug unit, and had extensive training and experience in investigating cases involving illegal narcotics. Also on the assignment, in separate vehicles, were Detectives Michael Lane and John Delaney, both of whom worked with narcotics interdiction.
Shortly before 3 P . M ., Hughes saw a Buick sedan with a female operator and a male front-seat passenger (later identified as the defendant) driving on River Road. Hughes noted that the taillight on the passenger side did not work. When the Buick stopped at a red light, with Hughes directly behind it, he saw the driver repeatedly looking into her rear-view mirror and at the defendant's lap. Hughes suspected that the driver was on the lookout for law enforcement.
Hughes decided to stop the Buick for the nonfunctioning taillight and to investigate the driver's behavior. He activated his lights and siren, and the Buick promptly pulled over. Hughes got out of his cruiser and approached the Buick on the driver's side. As he did so, he saw the defendant bend forward and hunch down towards the floor of the vehicle so that his hands were out of view, as if he were reaching under the seat. Hughes was concerned that the defendant might have a weapon or other contraband.
Detectives Lane and Delaney then arrived at the scene. Hughes told them what he had seen and that he wanted to remove the defendant from the Buick for officer safety. Lane and Delaney then approached the passenger side of the Buick, and one of them asked the defendant why he had bent over, or what he had been reaching for. The defendant replied that he had been getting the registration, but he did not produce it. His empty hands were then in view, and he did not transfer anything to the driver or put anything into the passenger door pocket. Delaney ordered the defendant to step out of the Buick, and he complied.
Immediately thereafter, Hughes asked the driver for her license, and she produced a valid license. Hughes issued her a civil citation for the taillight infraction.
Once the defendant stepped out of the Buick, Lane conducted a patfrisk and felt a hard object in the defendant's pants pocket. He removed the object and found it to be a hand-held digital scale, similar to those commonly used by narcotics sellers, with a powder residue on it consistent in appearance with heroin, cocaine, or fentanyl. Delaney checked the area of the car where the defendant had been sitting. In the passenger door pocket, he found a ripped piece of a plastic sandwich bag that appeared consistent with a container for illegal drugs but that was empty. Delaney also searched under the passenger seat but found nothing of significance. He then took over the search of the defendant's person. He located a small Ziploc plastic bag with apparent drug residue in it; $290 in cash, contained in three separate folds, as is common for drug dealers; and a cell phone.
Hughes then advised the defendant of his Miranda rights, and asked where he and the driver were coming from. The defendant said that they had met with a tow-truck driver in Lawrence and that there was documentation of the meeting on the cell phone. Delaney asked to see it, and the defendant showed the officers an unopened e-mail on the phone. Delaney asked to look further at the phone and the defendant closed it.
Delaney testified that it was "an automated message from a[n] AAA service."
Delaney learned from the defendant's criminal history that he had an open case for distribution of a class B substance in Tewksbury. Delaney contacted a Tewksbury Police Department officer, who told him that the defendant was known to sell drugs in the Tewksbury area. Hughes and Lane then began to search the remainder of the car. They located either one or two additional cell phones in the passenger compartment; the judge noted that the officers' testimony on the number of phones was in conflict, and she did not resolve it.
Hughes and Lane then opened the trunk and found what appeared to be a kilogram of compressed powdered narcotics in a plastic bag, along with bags of what appeared to be protein powder or some other nutritional supplement. The defendant was asked about the apparent kilogram of drugs, and he stated that he had purchased it the day before and still owed money for it. The defendant and the driver were arrested.
The defendant was indicted for cocaine trafficking, and moved to suppress all evidence obtained during the stop. The judge ruled that the stop, exit order, patfrisk, and protective sweep of the area where the defendant had been sitting were lawful, and that "[o]nce the officers located the scale with apparent drug residue on it, they had probable cause to arrest the defendant, and a further search of his person was permissible."
The judge ruled the search of the trunk impermissible, however, because the officers lacked probable cause to believe there was contraband or evidence of a crime in the car. The judge acknowledged that the digital scale and baggie on the defendant's person (both of which contained apparent drug residue), along with several folds of currency, were suggestive of drug dealing. "However, the only items located inside the vehicle were a piece of an empty, ripped plastic bag in the passenger door pocket and one or two cellular telephones. These items did not create probable cause to believe there were drugs contained within the vehicle, even though the defendant was a known drug seller." The judge thus ordered suppression of the evidence found in the trunk and the defendant's statements about that evidence.
The Commonwealth points to a comment the judge made at the hearing as embodying an assertedly erroneous conclusion that, absent probable cause to arrest the driver, the search of the car she was driving was improper. But the judge's comprehensive written ruling contains no hint of such a rationale, and thus we need not address the issue further. Cf. Commonwealth v. Moon, 380 Mass. 751, 754 (1980) (disregarding judge's statements at suppression hearing, where judge later issued "'Findings of Fact and Conclusions Thereon' which we assume was intended by him to be the complete formal statement of the factual basis for his action").
Discussion. In reviewing a ruling on a motion to suppress, "we adopt the motion judge's factual findings absent clear error," Isaiah I., 450 Mass. at 821, and "conduct an independent review of [her] ultimate findings and conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "[W]here, as here, the search is without a warrant[,] the burden of establishing its reasonableness is on the Commonwealth. In this case it was for the Commonwealth to show that probable cause existed and that the search was therefore proper." Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974). The Commonwealth does not challenge the judge's factual findings, and it has not shown any error in her conclusion that probable cause to search the trunk was lacking.
We therefore need not address the defendant's alternative argument that the initial stop, exit order, patfrisk, and protective sweep were all impermissible, requiring suppression of the result of the trunk search as the fruit of a poisonous tree.
That there was probable cause to believe the defendant was involved in drug dealing does not equate to probable cause to believe that evidence of such drug dealing would be found in the trunk of the car in which he was riding as a passenger. Cf. Commonwealth v. Moon, 380 Mass. 751, 760 (1980) ("The fact that the person with the knife may have arrived in the neighborhood in the car did not by itself provide probable cause for the police to search the car in the hope of finding some material which might tend to identify or incriminate him").
The discovery of contraband on the person of a passenger in a vehicle does not furnish probable cause to search the entire vehicle, absent some nexus between the contraband and the vehicle. See Commonwealth v. Garden, 451 Mass. 43, 49-51 (2008) ; Commonwealth v. Alvarado, 420 Mass. 542, 554-555 (1995) ; Commonwealth v. DeGray, 77 Mass. App. Ct. 122, 126 (2010) ; Commonwealth v. Pena, 69 Mass. App. Ct. 713, 717-718 (2007). The question here is whether the Commonwealth showed that the contraband found on the defendant -- indicative of drug dealing, as was the information gained from the Tewksbury police -- was sufficiently connected to the Buick to establish probable cause that evidence of drug dealing would be found in the trunk. The Commonwealth argues that the multiple cell phones and the piece of plastic bag found in the passenger compartment furnish such a nexus. We are not persuaded.
We put aside the permissibility of a search of the immediate area occupied by a passenger, which is not at issue here.
Garden's separate holding that an odor of marijuana suffices to establish probable cause, 451 Mass. at 48, has been superseded. See Commonwealth v. Long, 482 Mass. 804, 809-812 (2019).
Turning first to the cell phones, Hughes testified based on his training and experience that the possession of multiple cell phones is a common indicium of drug dealing. Although one phone was found on the defendant's person, the Commonwealth was unable to prove the number of additional cell phones found in the passenger compartment. The Commonwealth's evidence was in conflict as to whether one additional phone was found, or two, and the judge declined to resolve the conflict. As the judge noted at the hearing, if there was one additional phone, Hughes "couldn't say whether it belonged to the driver," and "two cell phones with two people certainly wouldn't raise the level of suspicion in regard to drug dealing." In any event, we agree with the judge's implicit conclusion in her written ruling that even a total of three phones for the two people in the car would not contribute significantly to showing a nexus between the defendant's drug dealing and the car.
We turn to the piece of plastic bag found in the passenger door pocket. Delaney described it as "a ripped off piece of a plastic baggie, which we commonly see in this area is what illegal drugs are packaged in," sometimes known as a "twist," "corner," or "corner baggie." "[B]asically drugs are put down into the corner of a sandwich bag and twisted and then ripped off." This bag, however, was empty. Delaney agreed that "it had no residue in it." None of the officers offered any explanation of how such an empty, residue-free corner of a baggie could have been created or used in the usual course of a drug dealing operation. As stated in Alvarado, "[t]he view of an object which may be used for lawful as well as unlawful purposes, even a container of the type commonly used to store controlled substances, is not sufficient to provide the viewing officer with probable cause to seize that object or arrest the individual possessing that object." 420 Mass. at 549. Even if the presence of this empty corner of a plastic bag in the car provided some further support for the conclusion that the defendant was a drug dealer, it provided no reason to believe that any evidence or instrumentality of crime would be found in the trunk. Particularly where the burden was on the Commonwealth, we conclude, as did the judge, that the empty bag, even taken together with the cell phone(s) found in the passenger compartment, did not furnish a sufficient nexus to establish probable cause to search the trunk.
The officers testified that the bag "was not logged as evidence or property" or otherwise listed on the inventory of items found in the vehicle, and it was left in the vehicle.
On appeal the Commonwealth argues that the evidence found on the defendant's person, including items bearing drug residue as well as folds of cash, suggested that the defendant had distributed drugs shortly before the Buick was stopped, thus strengthening the inference that evidence of drug dealing would be found elsewhere in the car. We see no indication that the Commonwealth made this argument to the judge, nor was there testimony about, e.g., how long drug residue might remain on a scale. The judge made no findings on these issues. We thus do not consider the Commonwealth's argument further. See Commonwealth v. Mubdi, 456 Mass. 385, 390-391 (2010).
The cases relied upon by the Commonwealth are not to the contrary; in each of them, there was more evidence of a nexus between illegal activity and the vehicle, or other parts of the vehicle, than there was here. See Commonwealth v. Davis, 481 Mass. 210, 221-222 (2019) (in OUI case, marijuana leaves were scattered in back seat; driver admitted he had recently smoked marijuana and was acting as if under influence); Commonwealth v. Hernandez, 473 Mass. 379, 384 (2015) (car matched description of one used in earlier armed robbery and home invasion); Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 178 (2019) (car was being driven aggressively on interstate highway; driver had urinated in cup rather than stop; inside car were open heat-sealed bag, elastics of type used to bind cash and drugs, and marks on carpet consistent with hidden compartment); Commonwealth v. Crespo, 59 Mass. App. Ct. 926, 927 (2003) (apparent cocaine thrown from car during accident).
Our brief descriptions of these cases do not necessarily include all of the evidence that was found in each case to contribute to probable cause to search the vehicle or some area within it.
Conclusion. So much of the judge's order as suppressed the evidence found in the trunk and the defendant's statements about that evidence is affirmed.
So ordered.
Affirmed.