Commonwealth v. Barreto

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17-P-1045 Appeals Court

COMMONWEALTH vs. ONAXIS BARRETO.

No. 17-P-1045.

Suffolk. May 11, 2018. - October 29, 2018.

Present: Milkey, Hanlon, & Singh, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress.

Constitutional Law, Search and seizure, Investigatory stop,

Reasonable suspicion. Search and Seizure, Motor vehicle,

Reasonable suspicion. Evidence, Anonymous statement,

Corroborative evidence.

Indictment found and returned in the Superior Court

Department on August 28, 2014.

A pretrial motion to suppress evidence was heard by Kenneth

W. Salinger, J., and a motion for reconsideration was considered

by him.

An application for leave to prosecute an interlocutory

appeal was allowed by Geraldine S. Hines, J., in the Supreme

Judicial Court for the county of Suffolk, and the appeal was

reported by her to the Appeals Court.

Eduardo Masferrer for the defendant.

Kathleen Celio, Assistant District Attorney, for the

Commonwealth.

2

MILKEY, J. In August, 2014, a grand jury indicted the

defendant for trafficking in 200 grams or more of cocaine.

G. L. c. 94C, § 32E (b) (4). The charge was based on evidence

found during a warrantless search of the defendant's motor

vehicle. Following an evidentiary hearing, a Superior Court

judge denied the defendant's motion to suppress that evidence.1

On the defendant's interlocutory appeal, we reverse.

Standard of review. "When reviewing a decision on a motion

to suppress, we accept the judge's findings of fact absent clear

error, but make an independent determination whether the judge

correctly applied constitutional principles to the facts as

found." Commonwealth v. Evans, 87 Mass. App. Ct. 687, 688

(2015). The judge made careful, detailed findings, all of which

are supported by the record and therefore are binding on us.

Notably, the judge rejected some of the police witnesses' claims

about what they were able to observe from a distance, and the

specific factual claims that the judge did credit were

qualified. The factual recitation that follows is drawn from

the judge's findings.2

1 The defendant filed a motion to reconsider that ruling,

which also was denied.

2 In reciting an interchange between the judge and counsel

at the motion hearing, we of necessity rely on the transcript of

that hearing.

3

Background. 1. The tip provided to police. The Boston

police focused on the defendant's vehicle because of a tip they

had received from an undisclosed source. Specifically, on or

before June 9, 2014, the police received information that a

green Volvo station wagon containing a "large" amount of drugs

would be near a certain intersection in the Roxbury section of

Boston. No other information regarding the tip was provided at

the evidentiary hearing.3 Thus, for example, there was no

evidence that the tipster provided the license plate number of

the vehicle, what time it would arrive, or any information

whatsoever about the vehicle's occupants, if any. Similarly,

there was no evidence about who the tipster was, how he or she

purportedly came into possession of the alleged information, how

that information was passed along to police, or whether the

police had any reason to trust it.

It was not happenstance that so little evidence was

presented about the tip, and none about the tipster. At the

beginning of the evidentiary hearing, the prosecutor made it

clear that she did not intend to go into such issues because she

3 The record does not contain any recording of the tip, or

other memorialization of what words the informant used to convey

his or her thoughts. Instead, one of the testifying officers

simply stated that the police had "received information from a

source that a green Volvo station wagon that had a large amount

of narcotics was in [the] area of [three streets in Roxbury]."

4

did not want to risk identifying the informant.4 Thus, in an

effort to head off any inquiry into the tip, the prosecutor

expressly disavowed trying to establish the tip's reliability

pursuant to applicable case law, and she made it clear that she

would be "objecting to any sort of [cross-examination] questions

regarding the . . . source of that information that the police

had." Defense counsel responded that he was content with this

arrangement based on his understanding of how the informant's

alleged information would be treated. Specifically, he stated

as follows: "It's a statement for context only that's not being

used because it doesn't satisfy [the standard set forth in

Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United

States, 393 U.S. 410 (1969)]. For those purposes, I've agreed

to not go into the -- who the source is, how is it that it came

about, what were the exact details of the tip because we're

[sic] not using it under Aguilar-Spinelli to suppor[t] the stop

or search." The judge responded by stating, "Okay. Fair

enough." The prosecutor made no effort to disabuse defense

counsel of his understanding.

2. Police observations. Upon receiving the tip, four

police officers set up surveillance at the intersection

4 At one point, the prosecutor -- when pressed by the judge

on whether she would be "attempting in any way to rely upon

information from th[e] confidential source" -- hedged slightly

by stating her view that "stuff can be corroborated."

5

mentioned by the informant. At about 5:15 P.M. on June 9, 2014,

they saw a green Volvo station wagon turn at the intersection

without the driver using his turn signal. The vehicle then

parked approximately fifty feet away. Shortly thereafter, one

of the officers observed the vehicle's operator, subsequently

identified as the defendant, lean down toward his right side "as

if he [were] reaching toward the floor of the passenger side

with both hands." According to the judge's findings, the

officer could not see the defendant's hands or what the

defendant might have been doing with them. Observing from a

distance, the officers saw a man approach the parked vehicle

from an adjacent building and interact with the defendant at the

driver's side window for approximately half a minute. While the

judge found that the police observed the unidentified man who

had approached the defendant's vehicle lean toward it "in a

manner consistent with that man placing his hands on the Volvo

door or reaching inside the Volvo," he also found that the

police did not observe the defendant and the unidentified man

actually "reach their hands toward each other, bring their hands

together, or exchange any object." Furthermore, the judge found

that the police did not see anything in the pedestrian's hands

as he was walking away from the vehicle, nor did they see him

put anything into his pocket, or move his arm in a manner

suggesting that he had just put anything there. Despite the

6

absence of any observation of an item being exchanged between

the men, the judge found that their interaction was "consistent

with the two men exchanging something."

After the man walked away, the defendant drove his vehicle

to an adjacent street, where the police pulled his vehicle over.

Although the defendant appeared nervous, he produced his

driver's license and vehicle registration when requested to do

so. At this point, there were at least four officers at the

scene, and one of them ordered the defendant out of the vehicle.

As the defendant was stepping out of the vehicle, the officer

saw a roll of cash in a clear plastic bag on the inside of the

driver's door. After further questioning of the defendant

proved fruitless5 and a patfrisk of him revealed nothing, the

police initiated a thorough search of the vehicle, subsequently

aided by a drug-sniffing dog. They eventually uncovered a metal

box underneath the passenger seat, inside of which was a large

amount of cocaine and additional cash.

The defendant moved to suppress all the evidence the police

collected pursuant to the stop and search of his vehicle,

including the cocaine, its packaging, the money (which totaled

$11,050), the defendant's cellular telephones, and a magnet that

5The police questioned the defendant in English. Although

the defendant supplied his license and registration, he told the

police that he did not speak English and therefore did not

understand their further inquiries.

7

police believed was used to access a "hide" inside the vehicle.

The judge ruled in the Commonwealth's favor. In doing so, he

did not rely on the informant's tip in any fashion. In fact,

with regard to that tip, the judge found that "[t]he

Commonwealth did not present any evidence to demonstrate the

basis for the informant's knowledge, that the police had any

reason to believe that the informant was truthful, or that the

police had corroborated the source's information that the

[defendant's vehicle] would contain illegal drugs." Instead,

the judge concluded that the police had reasonable suspicion to

stop the vehicle and to order the defendant out of it based on

the brief interaction that the police had observed between the

defendant and the unidentified man who had approached his

vehicle. Then, according to the judge, once the police observed

the wad of bills in the driver's door while the exit order was

being executed, they gained probable cause that justified their

subsequent search of the vehicle.

Discussion. 1. Introduction. The dispute before us is

relatively narrow. It is uncontested that the police found the

cocaine and other incriminating evidence during an investigatory

search of the defendant's vehicle. It follows that this search

was valid only if the Commonwealth at that point had probable

cause to conduct the search. Commonwealth v. Eggleston, 453

8

Mass. 554, 557 (2009).6 Moreover, the Commonwealth acknowledges

that its claim that it had probable cause depends on the police

having observed the roll of bills in the door of the vehicle

while they were executing the exit order. Therefore, if the

exit order was not valid, the Commonwealth's claim that it had

probable cause to search the vehicle falls short.

While the police could have stopped the vehicle for the

civil traffic violation they observed,7 this would not have

justified the exit order that led to the discovery of the roll

of bills.8 Rather, in the particular circumstances of this case,

the validity of the exit order -- and hence the Commonwealth's

claim that it obtained probable cause once it found the wad of

6 Because of the so-called "automobile exception," a warrant

was not required so long as the police had probable cause. See

Commonwealth v. Eggleston, 453 Mass. at 557, quoting

Commonwealth v. Cast, 407 Mass. 891, 901 (1990) ("[A] warrant is

not required to search an automobile 'when police have probable

cause to believe that a motor vehicle on a public way contains

contraband or evidence of a crime, and exigent circumstances

make obtaining a warrant impracticable'").

7 The fact that the traffic violation was not the actual

reason the police stopped the defendant's vehicle would not

matter. See Commonwealth v. Buckley, 478 Mass. 861, 872-873

(2018). For purposes of our review, we have assumed that the

length of time between the observed traffic violation and the

stop was short enough that the initial stop could be justified

on this basis.

8 The defendant cooperated with the police after the stop,

and the Commonwealth makes no claim that the exit order

independently was justified for safety reasons. See

Commonwealth v. Gonsalves, 429 Mass. 658, 665 n.5, 666-668

(1999).

9

bills -- depends on the police having gained reasonable

suspicion that the defendant was engaged in illegal drug

activity. See Commonwealth v. Bostock, 450 Mass. 616, 621-622

(2008) (exit order justified when police have reasonable

suspicion that operator engaged in criminal activity). The key

question, then, is whether, by the time the police ordered the

defendant out of his vehicle, they had "reasonable suspicion,

based on specific, articulable facts and reasonable inferences

therefrom, that an occupant of the . . . motor vehicle had

committed, was committing, or was about to commit a crime."

Commonwealth v. Anderson, 461 Mass. 616, 621, cert. denied, 568

U.S. 946 (2012), quoting Commonwealth v. Alvarado, 423 Mass.

266, 268 (1996). We turn to that question and begin by

examining the grounds on which the judge relied.

2. Reasonable suspicion. a. Police observations. The

motion judge found, without referring to the tip, that the

police had reasonable suspicion to believe the defendant was

selling illegal drugs based on the defendant's brief interaction

with the unidentified pedestrian (after the defendant stopped

his vehicle on a public street and reached toward the floor of

the vehicle). We disagree.

As noted, the police did not observe any item being

exchanged between the defendant and the person who approached

and leaned toward his vehicle. As the Commonwealth highlights,

10

testimony of an observed hand-to-hand exchange in some

circumstances can establish the requisite degree of suspicion

that an illegal narcotics sale has occurred even where the

police do not "actually see an object exchanged." Commonwealth

v. Kennedy, 426 Mass. 703, 710 (1998).9 However, in those

narcotics sale cases in which reasonable suspicion has been

found in the absence of police observing an item being

exchanged, there were significantly more suspicious

circumstances than those encountered here. For example, in

Commonwealth v. Stewart, 469 Mass. 257, 261 (2014), the court

found reasonable suspicion for police to stop the defendant

where -- knowing that he previously had been arrested for drug

dealing -- they observed that "three persons followed [him] down

a narrow street often used by drug users, with [a] woman

counting currency as she walked, and then all four huddled

briefly together in a doorway, before they dispersed." See

Commonwealth v. Gomes, 453 Mass. 506, 511-512 (2009);

Commonwealth v. Moses, 408 Mass. 136, 140 (1990).10

9 Kennedy involved probable cause. Ipso facto, there is no

per se rule requiring that police see an object exchanged in

cases where, as here, the less rigorous standard of reasonable

suspicion applies.

10In Commonwealth v. Gomes, the court held that the police

officer had reasonable suspicion to stop the defendant in a high

crime area at around 4 A.M., where the defendant was known to

previously have been arrested on drug charges and was observed

"displaying items in his hand[, which the officers could not

11

Here, as a police witness acknowledged, neither the

defendant nor the putative buyer was known to the police.11

Furthermore, the judge found that the police had no reason,

based on past experience, to expect a drug transaction to occur

in this particular area, which was made up of "relatively quiet

residential streets."12 All the police observed was an unknown

see,] and then appearing to swallow those items as the [police]

approached." 453 Mass. at 511. In Commonwealth v. Moses, the

court held that the police officer "had reason to suspect that a

drug transaction was taking place" where he saw four individuals

who were "standing near an automobile parked next to the

sidewalk with its motor running [and] appeared to be interacting

in some way with three . . . men who sat in the automobile[, and

then, o]n making eye contact with [the officer,] all four [men

on the sidewalk] quickly dispersed in two different directions[,

and] [o]ne of the occupants of the automobile, on making eye

contact with [the officer], immediately ducked under the

dashboard, completely out of [the officer's]'s sight." 408

Mass. at 140.

11In its appellate brief, the Commonwealth repeatedly

refers to the person who approached the vehicle as "Hispanic,"

even though his ethnicity has no relevance here. We point this

out only to alert the parties to the issue of implicit bias,

from which no one is immune. See Commonwealth v. Buckley, 478

Mass. at 878 n.4 (Budd, J., concurring) (discussing implicit

bias). We acknowledge that in their testimony, the witnesses

described the pedestrian they had observed as Hispanic, and that

the Commonwealth's appellate counsel apparently borrowed such

references in their brief. It is not difficult, however, to

avoid unnecessary references that may implicate such bias

whether it be present or not. The motion judge did so in this

case. Relying on the same testimony as appellate counsel, the

judge referred to the unknown parties by their roles (the

pedestrian and the driver) and thereby focused his analysis on

the relevant facts, the conduct of the individuals.

12Our dissenting colleague highlights that the judge

credited the testimony of a police witness that over a ten-year

period, "he ha[d] made numerous arrests for possession or

12

driver stop his vehicle in a residential neighborhood, lean down

toward the passenger-side floor, and subsequently have a brief

interaction with an unknown pedestrian during which the

pedestrian leaned toward the vehicle (as if to place his hands

on or in it). As far as it goes, the judge's finding that what

the police saw was "consistent with" a hand-to-hand exchange of

illegal drugs is unassailable. However, the defendant's

observed actions would also be "consistent with" a broad range

of other interactions. These would include, as mere examples,

the driver's saying a quick hello to an acquaintance he passed

on the street, the driver's asking for directions after looking

for a map, or the driver's stopping to drop off tickets to a

sporting event or another item to a friend he had arranged to

meet. Even if there were sufficient evidence to establish

reasonable suspicion that an exchange had taken place, there was

not enough to establish that the exchange was of illegal drugs.

distribution of illegal narcotics in [that] general

neighborhood." Post at . In our view, such general background

information added little, if anything, to the reasonable

suspicion calculus. See Commonwealth v. Johnson, 454 Mass. 159,

163 (2009) (urging that judges consider presence in a high crime

area "with caution" given "that so-called high crime areas are

inhabited and frequented by many law-abiding citizens who are

entitled to be protected against being stopped and frisked just

because of the neighborhood where they live, work, or visit").

"The term 'high crime area' is itself a general and conclusory

term that should not be used to justify a stop or a frisk, or

both, without requiring the articulation of specific facts

demonstrating the reasonableness of the intrusion." Ibid.

13

Put otherwise, if the looming presence of the unsubstantiated

tip is truly disregarded, then the specific actions that the

police observed -- even when seen through the eyes of

experienced officers -- created at most a "hunch" that a drug

transaction had just occurred. As the Supreme Judicial Court

has long held, a "mere 'hunch' is not enough" to establish

reasonable suspicion. Commonwealth v. Silva, 366 Mass. 402, 406

(1974).13

The Commonwealth seeks to justify the stop by having us add

to the mix the undisclosed informant's tip about a green Volvo

station wagon containing drugs.14 Although the judge himself

placed no reliance on the tip, it is plain from one of the

arresting officer's testimony that, unsurprisingly, such

information played a major part in leading him "to believe that

a possible drug transaction [had] occurred." Because we can

13To be sure, as our dissenting colleague accurately points

out, the police observed the defendant exhibit nervous behavior

once they pulled over his vehicle. However, the fact that

someone became anxious after being stopped by at least four

armed police officers has negligible force (particularly to the

extent that the defendant did not speak English, a factual issue

the judge did not resolve). See Commonwealth v. Cruz, 459 Mass.

459, 468 (2011) ("It is common, and not necessarily indicative

of criminality, to appear nervous during even a mundane

encounter with police").

14The defendant has not argued that the statements the

prosecutor made at the evidentiary hearing should estop the

Commonwealth from trying to rely on the tip on appeal. We

assume arguendo that the Commonwealth's arguments based on the

tip are properly before us.

14

affirm the denial of the motion to suppress on any ground fairly

supported by the record, see Commonwealth v. Va Meng Joe, 425

Mass. 99, 102 (1997), we must evaluate whether considering the

tip here makes a difference.

b. The import of the tip. The Supreme Judicial Court has

made it clear that the Commonwealth cannot rely on an

informant's tip unless the reliability of that tip has been

demonstrated pursuant to the two-pronged Aguilar-Spinelli test

(in which courts are to assess the extent to which the

informant's veracity and basis of knowledge have been shown).

See Commonwealth v. Upton, 394 Mass. 363, 375 (1985), citing

Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United

States, 393 U.S. 410 (1969). In continuing to adhere to the

Aguilar-Spinelli test in the context of challenges brought

pursuant to art. 14 of the Massachusetts Declaration of Rights,

the court on multiple occasions has rejected calls that it adopt

the less demanding "totality of the circumstances" test employed

by the United States Supreme Court in challenges brought

pursuant to the Fourth Amendment to the United States

Constitution. See Upton, 394 Mass. at 371-375 (rejecting the

rule adopted in Illinois v. Gates, 462 U.S. 213 [1983]). See

also Commonwealth v. Lyons, 409 Mass. 16, 18 (1990) (declining

to follow the rule stated in Alabama v. White, 496 U.S. 325, 328

[1990]); Commonwealth v. Mubdi, 456 Mass. 385, 395-396 (2010).

15

In its brief, the Commonwealth appears to maintain that

where, as here, the tip is not the sole basis for the police

action, the Aguilar-Spinelli test does not apply. Rather, the

Commonwealth seems to suggest, the information received from the

informant can be considered as one factor among others that

collectively tip the scales. In this manner, the Commonwealth

effectively advocates for a "totality of the circumstances" test

that the Supreme Judicial Court has time and again rejected.

Under existing case law, if the requisite level of suspicion

depends on an informant's tip, that tip must satisfy Aguilar-

Spinelli.

Here, nothing in the record establishes the informant's

basis of knowledge or his or her veracity. Indeed, although the

Commonwealth refers to the information the undisclosed informant

provided as an "anonymous tip," this actually overstates its

force. An anonymous tip -- such as one made by an unidentified

caller to 911 -- typically includes some information that is

helpful to assessing the caller's basis of knowledge or

reliability. See Commonwealth v. Depiero, 473 Mass. 450, 452-

453 (2016) (anonymous 911 caller reported seeing drunk driving

in Cambridge, with the vehicle "swerving all over the road").

The Commonwealth not only failed to make any evidentiary showing

16

with regard to these issues, but also expressly foreswore

attempting to do so when the evidentiary hearing began.15

That said, the cases have long recognized that while the

Commonwealth will need to demonstrate a tip's reliability based

on "the informant's reliability and his or her basis of

knowledge[, i]ndependent police corroboration may make up for

deficiencies in one or both of these factors." Commonwealth v.

Lyons, supra at 19. Thus, while the Aguilar-Spinelli test must

be satisfied, there is more than one way of doing so. Moreover,

in the context of reasonable suspicion, the demonstrated

reliability of an informant's tip need not be as robust as what

is needed to demonstrate probable cause. Lyons, supra. The

question then is whether the observations the police made at the

scene provided sufficient corroboration of the tip to establish

its reliability for purposes of assessing reasonable suspicion.

At most, the police observations corroborated the

unexceptional fact that at some undisclosed point in time, a

green Volvo station wagon would be in the identified

15The fact that the record does not even memorialize what

words the informant allegedly spoke itself impedes the

Commonwealth's efforts to establish the indicia of reliability

of information the police received. See Commonwealth v. Mubdi,

456 Mass. at 396 ("By failing to introduce the 911 call in

evidence, the Commonwealth has made difficult what otherwise

might have been a straightforward assessment of the caller's

source of information").

17

neighborhood.16 As the Supreme Judicial Court recently observed,

"Corroboration of purely innocent details that are observable by

any bystander, such as the description of a vehicle and its

location, provides only limited enhancement to the reasonable

suspicion determination." Commonwealth v. Pinto, 476 Mass. 361,

365 (2017). To the extent the Commonwealth argues that the

brief curbside interaction between the defendant and the

unidentified pedestrian corroborated the tip that there were

drugs inside of a green Volvo station wagon, we are

unpersuaded.17 See Commonwealth v. Mubdi, 456 Mass. at 387, 398-

399 (fact that a person was observed interacting with defendant

and other occupant of defendant's vehicle and started to walk

away from the vehicle after seeing approaching police officers

held insufficient to corroborate informant's tip about a

As noted, the informant provided no information about the

16

vehicle's registration number or about the vehicle's occupants,

if any. It is far from clear that the informant's tip satisfied

the separate particularity requirement. Compare Commonwealth v.

Lopes, 455 Mass. 147, 155, 157–158 (2009). We do not resolve

this issue, as the defendant has not raised it and we reverse on

other grounds.

In this regard, we note that it stands to reason that the

17

extent to which police corroboration can fill in the gaps of

demonstrating an informant's basis of knowledge and veracity

will vary depending on how great those gaps are. If the

evidence regarding the tip itself comes close to meeting the

Aguilar-Spinelli test on its own, then presumably a lesser

amount of corroboration is needed. Where, however, as here,

there has been no direct showing of the informant's veracity and

basis of knowledge, significant corroboration of that tip would

be needed.

18

purportedly illegal sale of a firearm). Compare Commonwealth v.

Dasilva, 66 Mass. App. Ct. 556, 560 (2006) (anonymous tip that

defendant illegally possessed a firearm was corroborated by

police observations that, "[a]fter looking directly at the

marked police cruiser, the defendant moved his right hand toward

his waistband, fled up the stairs of the building where he was

standing, and continued to flee even after [a police officer]

ordered him to stop"). Without a sufficient showing that the

informant's tip should be considered reliable, it cannot be

relied upon to demonstrate reasonable suspicion.18

Conclusion. The judge was correct not to rely on the

informant's tip. However, without such reliance, his ruling

that the police had reasonable suspicion to order the defendant

out of his vehicle cannot stand. In turn, without a valid exit

order, the police cannot rely on their discovery of the wad of

18Contrary to the suggestion made by our dissenting

colleague, there are no cases that hold that a tip as

unsubstantiated and uncorroborated as the one before us can be

relied upon -- in whole or in part -- to establish reasonable

suspicion. Indeed, it is difficult to find examples in the case

law of where the Commonwealth put forward so little evidence to

try to establish that a tip was reliable. Of course, it is

possible that the actual circumstances of the tip provided

police solid grounds for believing that the defendant was

engaged in illegal drug activities (with or without the

subsequent observations that police made). But in the context

of a motion to suppress, the Commonwealth can rely only on what

it puts in evidence. While the Commonwealth has substantial

leeway to protect its confidential sources, see Commonwealth v.

D.M., 480 Mass. 1004, 1005 (2018), and cases cited, it must live

with the litigation risks of doing so.

2

money in the driver's door, and the police therefore lacked

probable cause to search his vehicle. "Because the evidence in

issue was traceable to . . . the illegal order[] that the

defendant[] leave the car, it must in these circumstances be

suppressed as the 'fruit of the poisonous tree.'" Commonwealth

v. Loughlin, 385 Mass. 60, 63 (1982). The order denying the

defendant's motion to suppress is reversed.

So ordered.

HANLON, J. (dissenting). I agree with much of the

majority's thoughtful decision. Respectfully, however, I

dissent on the crucial issue -- whether, at the time that the

officers told the defendant to get out of the vehicle, they had

a reasonable suspicion to believe that he had engaged in an

illegal drug transaction. The stop itself clearly was justified

by the earlier traffic violation, a conclusion that the

defendant does not really dispute. The motion judge explicitly

credited the officers' testimony "that [the defendant] made [a]

turn [from Copeland Street through the intersection at Warren

Street and onto Waverly Street] without using any turn signal."1

Background. As the majority notes, the judge's findings

were careful and thorough. First, he found that, at the time of

the encounter, the two lead officers, Fabiano and Gero, "were

both experienced narcotics investigators." They were assisted

by officers from the District B-2 anti-crime unit. "That

afternoon they were looking to intercept and stop a green Volvo

station wagon because an unidentified informant had told Fabiano

that he could find such a vehicle in the area of Waverly and

1 "[T]he authority to conduct a traffic stop where a traffic

violation has occurred is not limited by '[t]he fact that the

[police] may have believed that the [driver was] engaging in

illegal drug activity.'" Commonwealth v. Buckley, 478 Mass.

861, 866 (2018), quoting Commonwealth v. Santana, 420 Mass. 205,

208 (1995).

2

Copeland Streets in Boston and that the vehicle would contain a

large amount of illegal narcotics."

When the officers stopped the defendant driving a green

Volvo station wagon, they knew: first, the defendant had

stopped his vehicle on Waverly Street, in front of the first

building on the left, "a residential building." Second, "a

second man immediately left the nearest building and walked to

the driver's door of [the defendant's] vehicle[. A]s the second

man approached[, the defendant] leaned down to his right as if

he were reaching toward the floor by the front passenger seat,"

using both hands. Third, the defendant then sat back up and

interacted for no more than thirty seconds with the second man,

who stood immediately outside the driver's door of the

defendant's vehicle. During this interaction, the second man

leaned toward the vehicle as if he were placing his hands on the

vehicle's door or reaching into the vehicle; he "was moving one

or both of his arms while he was standing next to the Volvo and

facing [the defendant], in a manner consistent with the two men

exchanging something." Fourth, after approximately thirty

seconds, the defendant drove away and the second man walked back

into the building he had emerged from a moment earlier. The

motion judge found that, "[b]ased on their training and

experience with hand-to-hand drug transactions, [the officers]

3

both suspected that the pedestrian had purchased some kind of

illegal drugs from [the defendant]."

At the time that the officers ordered the defendant out of

the vehicle, they had some additional information. They had

asked for his license and registration, noting that the

defendant "seemed to be nervous . . . [and] that [he] seemed to

be breathing heavily, was looking in his rear view and side view

mirrors at the various police officers and vehicles that had

pulled up behind him, and was not making eye contact" with

either of the officers who were speaking with him. Finally,

while the judge declined to use the talismanic words "high crime

area" and, in fact, specifically found that, as of this date,

"the Boston police had no reason based on past experience to

expect to see a drug transaction take place on Waverly Street or

Copeland Street, which are both relatively quiet residential

streets," he also "credit[ed] Of[ficer] Gero's testimony that

over the years he ha[d] made numerous arrests for possession or

distribution of illegal narcotics in this general neighborhood."2

Discussion. 1. Exit order. The law is clear that a

police officer may order a driver to get out of a vehicle when

2 Specifically, Gero testified, "In that specific area of

Warren and Copeland is a -- Warren Garden is across the street.

That area -- I've participated in numerous search warrants of

the surrounding streets. I've made firearm arrests, drug

arrests, arrests for breaking and [entering,] warrant arrests in

that general area of the past [ten] years."

4

he has a reasonable suspicion that the driver has committed a

crime. See Commonwealth v. Bostock, 450 Mass. 616, 621-622

(2008). Therefore, as noted, the issue is whether the officer

had reasonable suspicion when he ordered the defendant out of

the vehicle.

"[R]easonable suspicion is a lower standard than probable

cause." Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998).

See Commonwealth v. Hill, 49 Mass. App. Ct. 58, 63 (2000):

"The specific facts on which the police based their

stop of the defendant have been described as follows:

'(1) a vehicle pulled up and an interaction occurred

between someone in the vehicle and someone [in the

parking lot], who apparently retrieved something

before concluding the interaction with the vehicle's

occupant; (2) [the interaction occurred] in a place

known by the police officer[s] as a place of high

incidence of drug traffic; and (3) [the interaction

was] witnessed by an experienced officer, who had made

numerous drug arrests [although not necessarily in the

neighborhood] and considered the event as [suggesting]

a drug sale.' Commonwealth v. Kennedy, 426 Mass.

[703], 708 [1998]. Moreover, 'the quickness of the

interaction between [the other party and the

defendant] reasonably could be interpreted by the

officer as suspicious conduct, similar to the

suspicious conduct of the "furtive" transaction

observed in [Commonwealth v. Santaliz, 413 Mass. 238,

241 (1992)].' Commonwealth v. Kennedy, supra at 708-

709. We are mindful that in Kennedy the seller had

been arrested previously for narcotics sales and was

the subject of complaints from people in the

neighborhood, id. at 704; that in Santaliz, there was

an obvious exchange of an object and money, supra at

240; and that in both Kennedy and Santaliz the

officers had had considerable experience with drug

transactions in the same location. However, in each

of those cases the facts were deemed sufficient to

establish probable cause for arrest. If the facts set

out in Kennedy and Santaliz were sufficient to support

5

a finding of probable cause, the facts established

here were sufficient to establish reasonable

suspicion" (emphasis supplied).

See also Commonwealth v. Santiago, 470 Mass. 574, 579 (2015)

("Although [the officer] did not see any item actually

exchanged, the defendant's extended arm and [the recipient's]

corresponding gesture in relation to his shirt pocket provided

some basis for [the officer's] belief that a drug transaction

between the two men had just taken place").

I also suggest that art. 14 of the Massachusetts

Declaration of Rights does not require us to ignore completely

the fact that the officers made their observations after

receiving a tip that a green Volvo station wagon containing a

"large" amount of drugs would be in the area of Waverly and

Copeland Streets. Certainly, the tip by itself did not satisfy

either prong required by the teaching of Aguilar-Spinelli.3

However, viewing the tip as one of a number of factors

contributing to reasonable suspicion does not, as the majority

fears, impermissibly weaken the standard to a mere "totality of

the circumstances." See Commonwealth v. Depiero, 473 Mass. 450,

452 (2016) ("[T]he information gleaned from the anonymous call

in the present case, corroborated by other information, was

sufficiently reliable to warrant a finding that the officer had

3 See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.

United States, 393 U.S. 410 (1969).

6

reasonable suspicion to stop the defendant's vehicle"). In this

case, the tip was corroborated by the fact that someone driving

a green Volvo station wagon engaged in what the officers

reasonably suspected was a drug transaction some fifty feet up

Waverly Street from the intersection of Waverly, Copeland, and

Warren Streets.

The majority does not cite to any case holding that such a

tip must be disregarded completely, and there are a number of

other cases that hold otherwise. See, e.g., Commonwealth v.

Anderson, 461 Mass. 616, 623, cert. denied, 568 U.S. 946 (2012)

("Where the caller is anonymous, there are at least two ways to

establish the caller's reliability. The first is through

independent corroboration by police observation or investigation

of the details of the information provided by the caller. See

. . . Florida v. J.L., 529 U.S. 266, 270 [2000], quoting Alabama

v. White, 496 U.S. 325, 327 [1990] [anonymous tip, suitably

corroborated, may exhibit 'sufficient indicia of reliability to

provide reasonable suspicion to make the investigatory stop']");

Commonwealth v. Wilson, 441 Mass. 390, 395-396 (2004)

("Independent police corroboration of the details in the

telephone call by [the t]rooper . . . when he arrived at the

location identified by the caller and saw a group of nine men

establishes that the caller's information was also reliable.

Commonwealth v. Willis, 415 Mass. 814, 819 [1993]").

7

Finally, the fact that the tip predicted a future event

(the Volvo would arrive at the particular intersection

containing drugs) also buttresses its credibility. See

Commonwealth v. Va Meng Joe, 425 Mass. 99, 104 (1997)

("Corroboration of future behavior, which goes beyond 'readily

available information,' has a special significance when

determining the reliability of an informant").

"For more than seventy-five years, we have avoided an

overly formulaic approach to the determination of whether there

is [reasonable suspicion to detain] a person who is suspected of

participation in a street-level drug transaction." Commonwealth

v. Sanders, 90 Mass. App. Ct. 660, 660 (2016). "'A police

officer may make an investigatory stop "where suspicious conduct

gives the officer reasonable ground to suspect that a person is

committing, has committed, or is about to commit a crime." . . .

The action of the officer "must be based on specific and

articulable facts and reasonable inferences therefrom, in light

of the officer's experience."' Commonwealth v. Gomes, 453 Mass.

506, 510-511 (2009), quoting Commonwealth v. Wilson, 441 Mass.

[at] 394." Commonwealth v. Stewart, 469 Mass. 257, 261 (2014).

While certainly, as the majority observes, there are many

possible explanations for each of the facts individually (yes,

the defendant could have been dropping off Celtics tickets, and

yes, the defendant likely was nervous because there were several

8

police officers), police officers do "not have to exclude all

the possible innocent explanations for the facts in order to

form a reasonable suspicion." Commonwealth v. Isaiah I., 450

Mass. 818, 823 (2008). "Although nervous or furtive movements

do not supply reasonable suspicion when considered in isolation,

they are properly considered together with other details to find

reasonable suspicion." Commonwealth v. DePeiza, 449 Mass. 367,

372 (2007). "We view the 'facts and inferences underlying the

officer's suspicion . . . as a whole when assessing the

reasonableness of his acts.' Commonwealth v. Thibeau, 384 Mass.

762, 764 (1981). 'Seemingly innocent activities taken together

can give rise to reasonable suspicion justifying a threshold

inquiry.' Commonwealth v. Watson, 430 Mass. 725, 729 (2000)."

Commonwealth v. Gomes, 453 Mass. at 511. "We do not examine

each fact known to [police] at the time of the stop in

isolation; instead we view the 'facts and inferences underlying

the officer's suspicion . . . as a whole when assessing the

reasonableness of his acts.'" Commonwealth v. Isaiah I., supra,

quoting Commonwealth v. Thibeau, supra. I am satisfied that, in

the case before us, all the facts together support the judge's

conclusion that the exit order was properly grounded in

reasonable suspicion.

2. Search. After the defendant got out of the Volvo, one

of the police officers observed in plain view a roll of money

9

packaged in a clear plastic bag and tucked into the compartment

on the inside of the driver's door. This observation -- a large

sum of cash -- together with the officers' reasonable suspicion

that the defendant had just engaged in a drug transaction gave

them probable cause to believe that the vehicle would contain

evidence of the drug transaction, as well as evidence that the

defendant was in possession of illegal drugs, intending to

distribute them. Compare Commonwealth v. Stephens, 451 Mass.

370, 385 (2008). The police could then search the Volvo without

a warrant under the motor vehicle exception. See Commonwealth

v. Johnson, 461 Mass. 44, 49-50 (2011).

I believe that the judge's order denying the motion to

suppress should be affirmed.