54 N.E.3d 1135
Mass. App. Ct.2016Background
- Officer Shawn Grant (16-year BPD narcotics unit) observed two men (Caban and Niemczyk) pacing and talking on cell phones on Washington Street, Roxbury. He parked on same side of street and watched for ~15 minutes.
- Grant testified he saw Castillo cross the street, place an item into an open/broken residential mailbox ~25 feet from a tree, then walk to the tree and take money Caban had put in the branches; Caban then retrieved an item from the mailbox.
- Other officers stopped Caban and found a plastic bag containing heroin; they radioed Grant, who then stopped and arrested Castillo. A search incident to arrest recovered two cell phones and $680 on Castillo.
- The motion judge credited Grant’s testimony but made subsidiary factual findings (e.g., that Grant could not see the mailbox and that Caban/Niemczyk could not see the mailbox or the exchange) that conflicted with Grant’s uncontradicted testimony.
- The judge suppressed the evidence, concluding Grant lacked probable cause to arrest because he did not see an actual exchange of drugs for money; Commonwealth appealed the suppression order.
- The Appeals Court found the judge’s subsidiary findings clearly erroneous given the unambiguous testimony credited at the hearing, and held that the observed sequence of events provided probable cause to arrest Castillo.
Issues
| Issue | Commonwealth's Argument | Castillo's Argument | Held |
|---|---|---|---|
| Whether motion judge's subsidiary findings were clearly erroneous | Judge’s factual findings contradicted the uncontroverted, credited testimony of Officer Grant and must be corrected | Suppression judge relied on credibility/holistic view; evidence insufficient for probable cause | Appeals Court: judge’s subsidiary findings (that officer couldn’t see mailbox and others couldn’t see exchange) were clearly erroneous and must be corrected on remand |
| Whether officer had probable cause to arrest without seeing the object exchanged | Officer’s “silent movie” of conduct (placement in mailbox, money in tree, retrieval, corroboration by heroin found on buyer) provided probable cause | No direct observation of item exchange, so arrest was premature and stop exceeded permissible scope | Appeals Court: probable cause existed based on sequence of events and officer’s training/experience; suppression was erroneous |
| Whether appellate court may supplement or correct judge’s findings | Where judge credited unambiguous testimony but made erroneous subsidiary findings, court may direct correction on remand | Appellate courts should not engage in independent factfinding contrary to motion judge | Appeals Court: under Jones-Pannell and related authority, it is appropriate here to direct the judge to correct clearly erroneous subsidiary findings given the uncontroverted testimony |
| Remedy/procedure on remand | Vacate suppression, remand for corrected findings consistent with credited testimony | Maintain suppression ruling absent explicit discrediting of officer testimony | Appeals Court: vacated suppression order and remanded for the judge to make findings that comport with the hearing testimony she credits |
Key Cases Cited
- Commonwealth v. Oliveira, 474 Mass. 10 (summarizing standard for adopting motion judge findings)
- Commonwealth v. Jones-Pannell, 472 Mass. 429 (limits on appellate supplementation of motion-judge findings; when remand is appropriate)
- Commonwealth v. Kennedy, 426 Mass. 703 (no per se rule requiring officer to see object exchanged to establish probable cause)
- Commonwealth v. Stewart, 469 Mass. 257 (probable cause may be based on a "silent movie" sequence of conduct indicative of a drug sale)
- Commonwealth v. Santaliz, 413 Mass. 238 (supports "silent movie" analysis for drug transactions)
- Commonwealth v. Gullick, 386 Mass. 278 (defines probable cause to arrest standard)