Commonwealth v. Eugenio S. Lara.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-107

COMMONWEALTH

vs.

EUGENIO S. LARA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of distribution of heroin, possession of heroin

with intent to distribute, and a related school zone violation,

see G. L. c. 94C, §§ 32 (a), 32J.1 The charges stemmed from the

sale of a small amount of heroin in a high crime area of

Lawrence. During the investigation, the buyer identified the

defendant as the seller. When the police stopped the defendant

and searched him, they found more heroin in the defendant's

pocket. On appeal, the defendant argues that his motion to

suppress the drugs seized from his person was improperly denied

1A nolle prosequi was entered on an additional school zone

violation at the beginning of the trial.

and a substantial risk of a miscarriage of justice resulted from

the admission of improper opinion testimony at trial. We

affirm.

Motion to suppress. Two witnesses, Captain Roy Vasque and

Lieutenant Mark Ciccarelli of the Lawrence police department,

testified at the evidentiary hearing on the motion to suppress.

Both Vasque and Ciccarelli were members of the department's

street narcotics enforcement unit (SNEU) charged with

investigating street-level distribution of narcotics. The

motion judge found both officers credible and adopted "their

testimony in [its] entirety." We summarize the relevant facts

from the motion judge's findings, supplemented by uncontroverted

and undisputed facts from the record.2,3 Commonwealth v. Jones-

Pannell, 472 Mass. 429, 431 (2015).

In the early afternoon of March 27, 2014, Vasque,

Ciccarelli, and other members of the SNEU were conducting

undercover surveillance in an area of Lawrence known for "a high

incidence of drug activity." The officers had made "hundreds

and hundreds" of arrests for narcotics offenses in the area and

knew that drug users from out of State often came to this

2 As we discuss later, some of the facts found by the motion

judge are clearly erroneous. We have not included those facts

in our summary.

3 The case was tried before a different judge.

2

section of the city to purchase drugs. More specifically,

Vasque explained that "[o]n a day-to-day basis we deal with a

number of . . . buyers that come into the city of Lawrence from

out of town, New Hampshire primarily[,] looking to buy

narcotics."

At one point, Ciccarelli noticed a pickup truck with a New

Hampshire license plate and became suspicious. The operator

remained in his truck, which was parked, for a "few minutes" and

was looking down at his lap. Ciccarelli reported his

observation about the truck to Vasque. Both Ciccarelli and

Vasque testified that the officers were in communication with

each other on a separate channel used only by members of the

SNEU. The driver left the area and drove a few blocks before

stopping to pick up an individual, later identified as the

defendant, who had been walking down a nearby street. Before

the defendant got into the truck, the officers observed that the

driver had committed a turn signal violation and also noticed

that one of the truck's brake lights was out. The operator

drove for about thirty seconds to a minute and had traveled

approximately three blocks before pulling over again, at which

point the defendant got out and the driver immediately drove

away. The defendant then began walking down the sidewalk. The

officers did not recognize the driver or the defendant, nor did

3

they observe the two make an exchange of any kind. However,

based on their training and experience, which included making

arrests for street-level drug transactions after observing

similar scenarios unfold, they believed that a sale of drugs had

taken place and formulated a plan to stop the truck and the

defendant to further investigate. According to the plan, Vasque

and another officer, Detective Carmen Purpora, followed the

truck, while Ciccarelli pursued the defendant.

Vasque activated the lights and siren of his vehicle and

stopped the truck within a few blocks from the point where the

defendant had been dropped off. As Vasque approached, the

driver stuck his arm out of the driver's side window and said,

"This is it, this is all I have." The driver, hereinafter the

driver or the buyer, then handed over a "twist type bag"

containing a brown substance which the officers believed to be

heroin. The driver was escorted to the back of the truck and,

after waiving his Miranda rights, he stated that he had

purchased a twenty-dollar bag of heroin from the Hispanic man

who had gotten into and out of his truck prior to the motor

vehicle stop. Vasque then relayed this information to

Ciccarelli who was "[s]omewhere in the area where the defendant

was let out of the vehicle."

4

Meanwhile, at the same time Vasque (and Purpora) were

stopping the truck, Ciccarelli was trailing the defendant. He

first waited for the truck to pull away and "kind of get out of

sight." At that point, he estimated that the defendant had

walked about a block. Ciccarelli initially followed the

defendant in his unmarked car and, as he shortened the distance

between them, he parked in a vacant lot and continued his

pursuit on foot. Ciccarelli "wanted to close the gap" between

himself and the defendant and picked up his pace. He had his

badge out when he approached the defendant and said, "Lawrence

police, stop." The defendant did so, and immediately put his

hand in his pocket. Ciccarelli reached into the same pocket and

removed "plastic twists of heroin."

On the basis of these facts, and a few minor additional

facts which we have not included in our summary (see note 2,

supra), the judge concluded that the officers had probable cause

to stop and arrest the defendant based on their collective

knowledge and denied the motion to suppress. The judge reasoned

as follows:

"Although the Court finds that the officers did not have

sufficient facts to support reasonable suspicion for an

alleged drug transaction at the time they stopped the motor

vehicle, the Court does find that the officers had a lawful

basis to stop the pickup truck for the motor vehicle

infractions described above. The heroin that was

spontaneously surrendered by the operator to the officers

as they approached his motor vehicle was properly seized.

5

The operator's post-Miranda statement to the officers

concerning his heroin purchase provided the officers with

probable cause to believe that the [d]efendant unlawfully

distributed cocaine. Consequently, based on the

information known collectively by the officers at the time,

Lt. [Ciccarelli's] stop and arrest of the [d]efendant was

proper. The heroin was properly seized as a result of a

search incident to arrest."

"In reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error but

conduct an independent review of [the judge's] ultimate findings

and conclusion of law" (quotation and citation omitted).

Commonwealth v. Gonzalez, 487 Mass. 661, 667-668 (2021).

We first address the defendant's claim that several of the

motion judge's findings of fact were clearly erroneous. A fact

is clearly erroneous "when although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed."

Commonwealth v. Tremblay, 480 Mass. 645, 655 n.7 (2018), quoting

Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160

(1977). The defendant argues, and the Commonwealth agrees, that

there was no evidence to support the following findings of fact:

(1) the buyer had been in his car looking at his lap for ten

minutes before he pulled away, (2) the buyer's truck was

unregistered, and (3) the right side brake light of the buyer's

truck was out and the buyer failed to properly signal a left

turn. Our review of the record confirms there was no evidence

6

regarding the specific amount of time the buyer was parked and

looking at his lap or that the truck was unregistered, and

Vasque testified only generally about the motor vehicle

infractions.4 As it turns out, these facts were included in a

police report authored by Purpora, which the defendant has

provided to us in his record appendix. The report was not

admitted in evidence and Purpora did not testify at the hearing.

The defendant asserts that the judge impermissibly relied on the

police report to supplement his findings and further argues that

doing so violated his constitutional rights to the extent that

we are required to reverse the order denying his motion to

suppress.

To begin with, it is not clear from the record before us

that the judge had access to the police report, and even if he

did, it is less than clear that the judge acted secretly in

relying on the report as the defendant claims. However, it is

undisputed that the findings of fact described above were not

supported by the testimony presented at the hearing and those

4 There were additional discrepancies between the judge's

findings of fact and the testimony presented at the hearing.

For example, the judge found that Ciccarelli told the defendant

to "freeze" and that he retrieved three baggies of heroin from

the defendant's pocket. Ciccarelli did not testify that he said

"freeze," nor did he indicate the number of baggies he recovered

from the defendant. Although these facts are not material, they

likewise have been excised from our summary of the facts.

7

facts are referenced within Purpora's police report. Given

these circumstances, we conclude that these challenged findings

of fact are clearly erroneous. The proper remedy, however, is

not to reverse the order denying the motion to suppress.

Rather, we excise those facts and do not consider them in

conducting our independent review of the judge's conclusions of

law.5 See Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789-

790 (2018) (facts on which judge relied that were based on

judge's independent research are set aside and not considered in

our independent application of constitutional principles to

remaining facts). This remedy is not only appropriate but more

than adequate where, as here and in contrast to the situation

presented in Hilaire, the challenged facts are not material.

The defendant also argues that the judge improperly found

that "the seizure of the truck precede[d] the seizure of the

While we agree with the defendant that these findings of

5

fact are clearly erroneous, we do not agree that the remedy we

followed in Hilaire is inadequate. To the contrary, there is no

basis for concluding, as the defendant asserts, that the judge

engaged in any form of subterfuge or misconduct. We note that

defense counsel asked Vasque about the police report during her

cross-examination. The likely scenario is the very one proposed

by the defendant, which is that the police report, a copy of

which had been attached to the complaint, was in the court's

file and the judge reviewed it at some point. While we do not

know if this is so, even if true, there is no basis for

questioning the judge's motives or his partiality. Nor are we

persuaded that, if the judge did in fact review the report,

doing so amounted to an ex parte communication.

8

[d]efendant."6 This finding of fact stands on different footing

from those discussed above. Although it is true that there was

no specific testimony regarding the timing of the sequence of

events after the officers formulated their plan to stop both the

truck and the defendant,7 the judge's implicit finding that the

motor vehicle stop occurred before Ciccarelli stopped the

defendant is not clearly erroneous.8 The testimony established

that Ciccarelli began his pursuit of the defendant after the

truck had driven out of sight and stopped the defendant after he

had already walked about a block. Thus, even in the absence of

explicit testimony about the sequence of events, the judge's

6 Specifically, the judge found that "[t]he officers seized

the drugs and placed the operator under arrest." And "[a]t the

same time, Lt. Ciccarelli followed the [d]efendant as he walked

away from the scene of the alleged transaction."

7 Ciccarelli did not testify whether he was made aware of

the results of the motor vehicle stop before he stopped the

defendant.

8 The absence of explicit testimony on this point is not

surprising because the Commonwealth did not initially proceed on

the theory that Ciccarelli could rely on information obtained by

Vasque during the motor vehicle stop to establish probable cause

to stop and subsequently arrest the defendant. Rather, the

Commonwealth argued that Ciccarelli had reasonable suspicion to

stop the defendant based on his own observations, training, and

experience, and had probable cause to search the defendant once

he observed the defendant put his hand into his pocket. The

Commonwealth also argued, in the alternative, that the search of

the defendant was justified under the inevitable discovery

doctrine. We note that the judge raised the issue of the

collective knowledge of the officers sua sponte during an

exchange with the prosecutor at the motion hearing.

9

implicit ruling that the truck was stopped first is adequately

supported by the record.

Furthermore, the evidence established that the driver

immediately handed over the heroin to Vasque. We therefore

conclude that the judge's implicit finding that Vasque had

obtained the heroin before the defendant was stopped is not

clearly erroneous. Next, while we believe it is likely that the

officers had obtained the driver's post-Miranda statement

implicating the defendant before the defendant was stopped,

whether that is so presents a much closer question and, in our

view, cannot be definitively resolved on this record. However,

because we conclude that, based on the collective knowledge of

the officers, probable cause to stop and arrest the defendant

existed once Vasque retrieved the twist of heroin from the

driver, the lack of a resolution on this point is of no

consequence.

We now turn to the question whether the judge properly

applied what is now referred to as the horizontal collective

knowledge doctrine in determining that there was probable cause

to stop, arrest, and subsequently search the defendant.9 The

9 There is no dispute that the defendant was seized in the

constitutional sense when Ciccarelli ran up to him with his

badge out and told him to stop. See Commonwealth v. Warren, 475

Mass. 530, 534 (2016). Accordingly, the Commonwealth bears the

10

defendant argues that the judge erred in doing so because the

information known to Vasque could not be imputed to Ciccarelli

and therefore the judge should not have included the information

Vasque gleaned from the motor vehicle stop in the probable cause

calculus. Our independent review leads us to conclude

otherwise.

Recently, in Commonwealth v. Privette, 491 Mass. 501, 507-

508 (2023), the Supreme Judicial Court explained that the

collective knowledge doctrine (previously known as the fellow

officer rule) has evolved into two different forms: horizontal

collective knowledge and vertical collective knowledge. Each

may be used in determining the existence of reasonable suspicion

and probable cause. See id. at 508. Vertical collective

knowledge, which is not at issue here, involves one officer with

sufficient information directing another officer to conduct a

stop or effect an arrest. See id. By contrast, horizontal

collective knowledge, which the judge did apply, "permits the

aggregation of information known to multiple officers." Id.

More specifically, under the horizontal collective knowledge

doctrine, "the officer who actually effectuates the stop need

not have personal knowledge of all of the officers' pooled

burden of showing that reasonable suspicion or probable cause

existed at that point. See id.

11

knowledge giving rise to reasonable suspicion or probable

cause." Id. at 503. That said, as the court further explained,

"in order to aggregate officers' knowledge for use in the

determination of reasonable suspicion [or probable cause]

without running afoul of art. 14, the officers must be

involved in a joint investigation, with a mutual purpose

and objective, and must be in close and continuous

communication with each other about that shared objective."

Id. at 513. Additionally, "the officer must be aware of at

least some of the critical facts and must have been in

communication with others who have such knowledge." Id. at 503.

Here, the officers, all of whom were members of the SNEU,

were "functioning as a team" in an active, joint undercover

investigation. Privette, 491 Mass. at 514. Neither Vasque,

Ciccarelli, nor other members of the SNEU acted independently.

See id. As the judge found, after observing the defendant get

in and then out of the truck after a short ride, the officers

formulated a plan to further investigate. That plan entailed

the immediate stop of both the truck and the defendant. No one

deviated from the plan. Rather, the officers proceeded in a

coordinated fashion and did so expeditiously. Furthermore, the

officers, who had a "mutual purpose and objective," namely to

investigate a potential drug transaction, were in "close and

continuous communication with each other" through the use of a

private radio channel used only by the SNEU. Id. at 503.

12

While it is true that it is not clear whether the

information known to Vasque was communicated to Ciccarelli

before the defendant was stopped, the timing of such

communication is not relevant under the newly clarified

horizontal collective knowledge doctrine. It is sufficient, for

the purposes of applying the doctrine, that Ciccarelli was aware

of some of the "critical information" giving rise to probable

cause, that the officers were in continuous communication, and

that Vasque had obtained information supporting probable cause

before Ciccarelli effectuated the stop. Privette, 491 Mass. at

515, quoting United States v. Bernard, 623 F.2d 551, 561 (9th

Cir. 1979). Here, Ciccarelli had knowledge of several critical

facts based on his own observations. Indeed, it was Ciccarelli

who initiated the investigation and formulated the plan to stop

the truck and the defendant. And, as we have noted, the record

supports the finding that Vasque had, at a minimum, obtained a

twist of heroin from the driver before Ciccarelli stopped the

defendant. In sum, this is not a case where there was a "post

hoc" pooling of information from a number of officers to create

probable cause, any one of whom had probable cause to believe a

crime had been committed. Privette, supra at 516. Rather, the

officers were working together pursuant to an investigative plan

and sharing information in real time. In the circumstances

13

presented here, that shared information provided probable cause

to believe the defendant had engaged in a drug transaction and

therefore both the stop and the subsequent search and arrest of

the defendant were lawful under the horizontal collective

knowledge doctrine.

Given our conclusion, we need not address the

Commonwealth's argument that even without the heroin obtained

from the motor vehicle stop, Ciccarelli had reasonable suspicion

to stop the defendant and then had probable cause to search

after the defendant put his hand in his pocket. Nor is it

necessary to address the Commonwealth's alternative argument

that because the search of the defendant would imminently and

lawfully have been made, the drugs seized from the defendant

were admissible under the inevitable discovery doctrine.10

10 As we previously explained,

"Under the inevitable discovery doctrine, if the

Commonwealth can demonstrate by a preponderance standard

that discovery of the evidence by lawful means was certain

as a practical matter, the evidence may be admissible as

long as the officers did not act in bad faith to accelerate

the discovery of evidence, and the particular

constitutional violation is not so severe as to require

suppression" (citation omitted).

Commonwealth v. Fontaine, 84 Mass. App. Ct. 699, 709 (2014).

See, e.g., Privette, 491 Mass. at 552 (Wendlandt, J.,

concurring) (where an officer "acts too swiftly" by stopping [or

arresting] an individual, but another officer has reasonable

suspicion [or probable cause] "our existing inevitable discovery

doctrine permits the use of the evidence at trial as an

14

Expert testimony. Prior to trial, the Commonwealth filed a

motion in limine seeking to introduce expert testimony from

State police Trooper Brian O'Neil, an experienced narcotics

investigator who had not been involved in the investigation of

the defendant, on the subject of street-level drug transactions.

The motion was allowed without objection. At trial, Trooper

O'Neil testified regarding the general characteristics of drug

users and dealers as well as the typical ways in which street-

level drug transactions occur. In particular, based on his

training and experience, he testified that Lawrence is a "source

city" for drugs and that the majority of persons purchasing

drugs in Lawrence travel to the city from Maine and New

Hampshire. He further explained that drug dealers typically

approach vehicles on foot and that persons purchasing drugs for

personal use generally do not buy large quantities of narcotics.

The defendant argues that the testimony described above

constituted impermissible profile evidence and that Trooper

O'Neil improperly opined on the ultimate issue of the

exception to the exclusionary rule"). See also Commonwealth v.

Hernandez, 473 Mass. 379, 386-387 (2015) (even if officers acted

prematurely in searching the trunk of car driven by defendant,

firearm found during search would have inevitably been

discovered after passenger of vehicle was identified as suspect

in armed robbery).

15

defendant's guilt.11 Because the defendant did not object to

this testimony, our review is limited to determining whether

there was error and, if so, whether the error created a

substantial risk of a miscarriage of justice. See Commonwealth

v. Ortiz, 50 Mass. App. Ct. 304, 307 (2000). We discern no

error.

It is well settled that "[n]arcotics investigators may

testify as experts to describe how drug transactions occur on

the street." Commonwealth v. Little, 453 Mass. 766, 769 (2009).

Such testimony is "helpful to [a] jury" because it is a subject

which is beyond the common knowledge of the average juror.

Commonwealth v. Miranda, 441 Mass. 783, 794 (2004), quoting

Commonwealth v. Robinson, 43 Mass. App. Ct. 257, 259 (1997)

("Characteristics of two-person street-level drug transactions

are beyond the common store of knowledge of the average juror").

11The defendant also challenges the testimony of the police

officers who were percipient witnesses and contends that they

too provided improper expert testimony. None of these witnesses

were presented as experts and none of them provided an opinion

as to what had transpired between the defendant and the driver

of the truck. To the extent that any one of the three explained

why their investigation focused on a truck with a New Hampshire

license plate and the reasons for stopping the truck, such

testimony was properly admitted to provide context for their

conduct. See Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 438

(2006) (police entitled to explain motivation for conduct in

carrying out investigation). Furthermore, to the extent that

testimony veered into expert testimony, it was cumulative of

Trooper O'Neil's testimony.

16

The testimony, however, must focus on the characteristics of the

crime, and not on characteristics of criminals. See

Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 443-444 (2020)

(impermissible profile evidence focuses on characteristics of

criminals, while proper expert testimony focuses on

characteristics of crimes).

Contrary to the defendant's assertion, Trooper O'Neil never

testified that the defendant was a drug dealer because he lived

in Lawrence or because he matched the typical characteristics of

a person who sells drugs. Rather, Trooper O'Neil testified

about the characteristics of street-level drug crimes based on

his experience. This testimony was permissible because it

informed the jury as to the characteristics of the crime with

which the defendant was charged and did not comment on character

traits stereotypical of drug dealers. See Barrett, 97 Mass.

App. Ct. at 443-444.

Next, the defendant contends that Trooper O'Neil's

responses to certain questions posed by defense counsel during

cross-examination crossed the boundary of proper expert

testimony because it contained an assurance of guilt. The

exchange at issue was prompted by a hypothetical question asked

by the prosecutor as follows:

"Hypothetically if you had a person sitting in a vehicle

with a New Hampshire license plate on it, and that person

17

was manipulating something in their lap or staring down at

their lap in one spot for several minutes, and then drove

away down the street, picked up another person who got in

the car and then drove off a couple of blocks then let that

person out, do you have an opinion if this with the city of

Lawrence based on that as to what that behavior is

consistent with?"

The trooper answered, "My opinion would be that that behavior

would be consistent with a drug transaction." On cross-

examination, defense counsel solicited additional testimony on

this issue:

Q.: "Have you ever had a situation where a person gets

into a vehicle and just takes a ride, is picked up and is

going for a ride, isn't that consistent with your

hypothetical that you gave an opinion on a moment ago?"

A.: "No."

Q.: "Well, you're not suggesting that every time somebody

gets in a car and just because each person has drugs on

them is a drug dealer, are you?"

A.: "Yes."

Q.: "Every time?"

A.: "Sure. That's all we do, that's what we --we observe

drug transactions and then we --"

Q.: "I know that's what you do, but you're saying to this

jury every time somebody gets in a car and takes a ride

down the street and both people end up with drugs on them,

there must've been a deal that happened in that car and not

prior or at all?"

A.: "Are we still discussing the hypothetical that I was

presented with?"

Q.: "Yes."

18

A.: "Under those circumstances, there is no I just took a

ride with this guy. The purpose for that person getting in

the car and driving 50 yards down the street and then

getting out, was enough time to conduct a drug transaction.

There is no he's a friend of mine, he just needed a ride a

hundred yards down the street."

Apart from the fact that the defendant is not in a position to

complain about the challenged testimony because it was elicited

by defense counsel, see Commonwealth v. Elder, 389 Mass. 743,

754 (1983) (where "the defendant elicited the statement on

cross-examination, he cannot now complain of its prejudicial

effect"), there was no error. As he did in responding to the

prosecutor's hypothetical question, Trooper O'Neil did not

directly attribute the behavior that was described in the

hypothetical to the defendant. He merely confirmed that the

scenario presented to him was consistent with a drug

transaction. Contrast Ortiz, 50 Mass. App. Ct. at 307 ("While

it was certainly permissible for [the expert] to explain what

function a runner performed in the street level sale of drugs,

his testimony that he 'believe[d]' the defendant was a runner

'amount[ed] to a personal assurance by the witness that the

crime charged had occurred, and thereby constitute[d] an

improper intrusion into the fact-finding function of the jury'"

[citation omitted]); Commonwealth v. Tanner, 45 Mass. App. Ct.

576, 580 (1998) (officer impermissibly blurred line between

19

expert and percipient witness by opining, "[F]rom my experience,

I believed a drug transaction had taken place").

Judgments affirmed.

By the Court (Vuono, Shin &

Toone, JJ.12),

Clerk

Entered: September 27, 2024.

12 The panelists are listed in order of seniority.

20