The opinion
Perretta, J.
(dissenting). The majority view this case as closer to Commonwealth v. Blatz, 9 Mass. App. Ct. 603 (1980), than to Commonwealth v. Bacon, 381 Mass. 642 (1980), and conclude that the circumstances were sufficiently suspicious to justify the officer’s actions. Commonwealth v. Silva, 366 Mass. 402, 405-408 (1974). Commonwealth v. Almeida, 373 Mass. 266, 270 (1977). I view the facts in this case as being less than those presented in Commonwealth v. Ferrara, 376 Mass. 502, 503 (1978), and Commonwealth v. Bacon, 381 Mass. at 645 , for the following reasons.
Any inference to be drawn from the fact that bicyclists can transport and hide narcotics is equally applicable to motorists and pedestrians, to name but two, and of such generality that it is of no relevance or probative value in this case. At best, it justifies a universal suspicion of all bicyclists. See Brown v. Texas, 443 U.S. 47, 52 (1979) (“[T]he appellant’s activity was no different from the activity of other pedestrians in that neighborhood”).
That the officer’s testimony can be reasonably construed to mean that bicycles are a common mode of drug transportation “in that area” does not render otherwise innocuous and unexceptional activity suspicious. 1 Compare and contrast United States v. Gonzalez, 362 F.Supp. 415, 421 (S.D.N.Y. 1973), with United States v. Davis, 458 F.2d 819 (D.C. Cir. 1972). See Commonwealth v. Stinson, 6 Mass. *682 App. Ct. 899 (1978). See generally 1 LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 3.6(g) (1978).
Because the defendant could not be the subject of an investigatory stop on the sole basis that he was on a bicycle, one must focus on his “unusual movement” 2 and refusal to stop. I do not see separate and distinct actions which fused to create sufficient suspicion to stop the defendant. Rather, the unusual movement was one event which signaled the beginning of the defendant’s abrupt turn into traffic to ride down St. John Street. Even accepting the defendant’s movements as flight, to conclude that it combined with several other factors to give rise to adequate suspicion to stop him is wrong. The only pre-flight conduct of the defendant regarded as suspicious by the officer was the fact that he was on a bicycle. I do not see this as an “articulable fact” within the meaning of Terry v. Ohio, 392 U.S. 1, 21 (1968). Thus, I would hold that the only factor before us is the defendant’s flight, which when considered alone, as it must be, is insufficient. Compare Sibron v. New York, 392 U.S. 40, 66-67 (1968); Commonwealth v. Battle, 365 Mass. 472, 476 (1974); Commonwealth v. Ortiz, 376 Mass. 349, 354-355 (1978). 3
Even were I able to agree with the majority that there was justification for stopping the defendant and the scope of the inquiry made of him (see note 3, supra), I would nonetheless disagree with their conclusion that the evidence was sufficient to prove beyond a reasonable doubt that the defendant possessed PCP with the intent to distribute it. The facts relied upon by the majority in reaching their con *683 elusion — nine envelopes containing an unknown total quantity of PGP, flight, and the defendant’s use of a bicycle — when considered either separately or as a whole, are, at best, as equally consistent with intended personal use as they are with the proposition of intended distribution. Commonwealth v. Croft, 345 Mass. 143, 145 (1962). Commonwealth v. Ellis, 356 Mass. 574, 579 (1970). Commonwealth v. Eramo, 377 Mass. 942 (1979). Compare Commonwealth v. Rivera, 6 Mass. App. Ct. 947 (1978).
Indeed, the officer testified on cross-examination that “When he first went down, I had no idea what he had done.”
Neither the officer’s labeling nor his description of that movement warrant, in my opinion, a conclusion that the gesture was furtive. Commonwealth v. Concepcion, 10 Mass. App. Ct. 613, 616 (1980), and authorities collected in n.2.
Even assuming a stop was justified, I would still conclude that the envelopes and their contents should have been suppressed on the basis that the officer’s actions exceeded permissible limits. See Commonwealth v. Ferrara, 376 Mass. at 505 .