Commonwealth v. GriffinCommonwealth v. Griffin
Lead Opinion
Thе defendant, Mitchell J. Griffin, was charged with possession with intent to distribute cocaine, subsequent offense,
Facts. On March 6, 2009, Investigators Michael Nykorchuck and David Kirchner of the Pittsfield police department learned from a confidential informant (Cl or informant), whose credentials are not being challenged here, that Lawrence Posey would be traveling out оf town that evening to buy a kilogram of cocaine and would return to Pittsfield the following day. The Cl believed that Posey’s destination was New York City. The Cl did not provide any information regarding the defendant.
At 5:40 p.m., the investigators saw Posey pumping gasoline at a Shell gasoline station and for the first time saw the defendant sitting in the passengеr seat. Investigator Kirchner recognized the defendant from “prior investigations,” the nature of which — victim, witness, or suspect — was not established. The police eventually observed the defendant in Posey’s car as it headed in the direction of New York City.
The following day, March 7, 2009, the Cl told Investigator Nykorchuck that he had spoken to Posey, and that Posey would be back sometime after 7:00 p.m. The Cl did not mention anything to the police about the whereabouts, actions, or intentions of the defendant. The police set up survеillance in New York and Massachusetts and observed Posey and the defendant traveling toward the center of Pittsfield.
Once the police identified Posey’s car, Posey was instructed to pull over, which he did without incident. Neither Posey nor the defendant made any suspicious or furtive gestures. Investigator Kirchner removed Pоsey from the vehicle and another officer apprehended the defendant. The officers were armed, one
Investigator Kirchner told the defendant that he was not under arrest at that time, although he was handcuffed from behind, but that there was probable cause
The police took Posey and the defendant to the police station in separate cruisers. After dropping off the defendant, Officer Bassi, who had driven the defendant, searched his cruiser for contraband. Nothing was found. In addition, Posey’s car was searсhed, with the same negative result. Subsequently, the police enlisted the services of a canine unit, and the dog aggressively alerted the police to the front passenger seat of Posey’s car, where the defendant had been seated. The police eventually strip searched both men; this search, like thе previous searches, did not produce any contraband. At some point, it is unclear when, Officer Bassi found cocaine in his police cruiser while the car was parked in the parking lot of a local store.
The law. The guiding legal principles are clear and need not be discussed at length. “Probable cause to arrest exists where the facts and circumstances in the arresting officer’s knowledge and of which he or she has reasonably trustworthy information
When there is probable cause to search a car, police are permitted to “inspect [the] passengers’ belongings found in the car that are capable of concealing thе object of the search,” Wyoming v. Houghton,
Discussion. It appears clear that probable cause existed to stop, seize, and arrest Posey. It follows that the police were also warranted in searching Posey’s car, the accomplishment of which included the demand that the passenger exit the vehicle. Compare Commonwealth v. Correia, 66 Mass. App. Ct. 174, 174 (2006) (odor of burnt marijuana in car entitled police to search interior and to issue exit order to defendant-passenger in order to facilitate search). As for the defendant, the facts known to the police about him at the time оf the stop included (1) he had been in Posey’s car the day before, heading to New York City to buy drugs; (2) he was in the same car, still driven by Posey one day later, having returned from New York City after the drug purchase ostensibly had been made; (3) Investigator Kirchner recognized him (in some unclear capacity) from previous investigations; and (4) he made no furtive gestures or suspicious movements upon being stopped.
Armed with this information, the police handcuffed the defendant, read him the Miranda rights, and transported him to the police station for a strip search. We agree with the motion judge’s conclusion that at that point, what had been an investigatоry stop was converted into an arrest for which there was no probable cause.
Even if reasonable suspicion existed to question and conduct
We note that, unlike Commonwealth v. Young,
For the foregoing reasons, the suppression order of the Superior Court is affirmed.
So ordered.
Notes
There is no issue concerning the reliability, veracity, or information supplied by the Cl to the police.
Investigator Nykorchuck, who was then on light duty, was not present when Posey’s vehicle was stopped. Although Nykorchuck knew from his experience that drug dealers hide their product in different places, including their pockets and compartments in the car, he had no prior information from the Cl as to wherе Posey might be hiding the cocaine or whether Posey might have given the drugs to the defendant, which the investigator believed was possible.
Investigator Kirchner believed he had reason to search the defendant because Kirchner and other officers had observed the defendant leave with Posey for New York City and return in Posey’s vehicle, the Cl had provided information that Posey would be bringing drugs back from New York, and “the fact that [the drugs] could have been easily transferred from . . . Posey to [the defendant].”
Had a strip search been warranted (see note 7, infra), Investigator Kirchner was correct in his belief that the police station would be a safer and more appropriate plaсe to conduct such a search because of the conditions at the location of the stop; the breakdown lane was narrow, the lighting was poor, and another officer had a canine with her, which posed additional safety concerns. Investigator Nykorchuck further testified that protocol prеcludes officers from performing a strip search on the street.
In response to a question from the judge on the subject, defense counsel
The judge was satisfied that the Cl’s information was sufficient to fulfil both prongs of the Aguilar-Spinelli test. See Commonwealth v. Rosa,
The Commonwealth conceded in its brief the impropriety of the strip search.
After arresting the defendant, the police learned that he and Posey had
As there have been no arguments by either party concerning the expectation of privacy one has in the rear seat of a police cruiser, abandonment, or thе significance, if any, of where and when the drugs were ultimately discovered, we need not address these issues.
Concurrence Opinion
(concurring). Officers in the drug unit of the Pittsfield police department were working with a confidential informant (Cl) who had purchased “crack” cocaine on many occasions from one Posey, a local drug dеaler. On March 6, 2009, the police (using the Cl) conducted a controlled purchase of cocaine from Posey. Posey arrived at the prearranged location driving a maroon Dodge Caliber automobile, which police
On March 6, the Cl told the police that Posey had informed him that he (Posey) was getting low on supplies and would be going to New York City to restock. The police knew that local dealers stock up in New York City, or other big cities, where they can get larger quantities at lower prices. Police also knew that drug dealers commonly use rental cars for purposes of their illegal trade.
As predicted, police observed Posey with a gray Mazda at 5:40 p.m. on March 6. In the front pаssenger seat was the defendant, who was “very much” recognized by one of the officers from prior investigations (note plural).
On March 7 (the following day), the Cl told police that he had spoken by telephone to Posey, who had said he would return later that day after 7:00 р.m. with crack cocaine for sale. After the Cl passed this information along to the police, they set up surveillance along the expected routes. At 7:57 p.m., the gray Mazda was stopped; Posey was driving and the defendant was in the front passenger seat.
In my view, on these facts, the police had probаble cause to arrest the defendant for possession of cocaine (whether under a theory of constructive possession or joint venture) and possession with intent to distribute cocaine (under a theory of joint venture). The defendant was on a tightly-timed, organized, and lengthy trip to make a wholesale purchase of drugs with a known drug dealer. He was not in the car by happenstance; this is not a case of “mere” presence. It is eminently reasonable to infer that the defendant knew the purpose of the trip; Posey had been free
For these reasons, I cannot join in the reasoning of the majority. I concur in the result, however, because the Commonwealth does not argue here (nor did it argue below) that there was probable cause to arrest the defendant.
As the majority correctly states, the officer did not state in what capacity Griffin was known to police, i.e., as witness, target, or victim.
Indeed, at oral argument, the Commonwealth expressly stated that it was not arguing that the officers had probable cause to arrest.