On January 5, 2007, the defendant, Andrew Levy, was charged with possession with intent to distribute a class B substance, to wit, cocaine, in violation of G. L. c. 94C, § 32A(a), and possession with intent to distribute a class B substance in a school zone, in violation of G. L. c. 94C, § 32J. On August 19, 2008, a District Court judge allowed, in part, the defendant’s motion to suppress, resulting in the suppression of
On appeal, the Commonwealth argues that the judge erred in suppressing the drugs because the police observed a pattern of activity resembling a classic street-level drug transaction, which provided probable cause to arrest the defendant. We agree.
Facts. We recite the facts found by the motion judge, supplementing them as appropriate where evidence is undisputed and uncontroverted and where the judge explicitly or implicitly credited a witness’s testimony. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). On January 4, 2007, Detective George Khoury was conducting surveillance of a set of pay telephones located outside Rice’s Market in Brockton. At the motion hearing, Detective Khoury testified that he has been a police officer for thirteen years, including ten years as a member of the Brockton police narcotics unit (BPNU); as a member of the BPNU, he received special training in narcotics, worked undercover numerous times, and made over 500 narcotics-related arrests. Detective Khoury testified that the pay telephones were “frequently used to arrange for drug transactions,” and that the BPNU had made “multiple arrests which led to the seizure of drags” as a result of surveillance on these particular pay telephones. He specified that “within a year of this event I probably made about five arrests” in that neighborhood for “[djrag distribution, possession, and prostitution.”
At approximately 10:00 p.m., Detective Khoury observed a green Ford Contour automobile occupied by an unknown male and two females pull up to the pay telephones. The male left the Ford, placed a telephone call lasting approximately twenty seconds, and then returned to the vehicle, which drove away. Detective Khoury followed the Ford for approximately three-quarters of one mile to a residential area on Bellevue Avenue, where the driver pulled the car to the side of the road and turned off its headlights. Detective Khoury parked on Bellevue Avenue and observed that, at first, nobody got out of the vehicle,
A few minutes later, a Pontiac Bonneville automobile with three occupants drove onto Bellevue Avenue and stopped approximately ten feet to the left of Detective Khoury’s unmarked car.
Detective Khoury did not witness an exchange of any items between the male and the individuals in the Pontiac. Nonetheless, based on his “training and experience” and “all the events that occurred,” Detective Khoury testified that he “knew for a fact” that “a drug transaction had occurred.” He checked the license plate number of the Pontiac with the Registry of Motor Vehicles (registry) and learned that the registered owner, Kyle Bryant, had a suspended license. After briefly losing track of the Pontiac, Detective Khoury radioed for back-up and then, with assistance of other officers, stopped the Pontiac as it was attempting to pull away from a nearby gasoline station.
The officers asked the driver, who turned out to be Bryant, and the defendant, who was seated in the front passenger seat, to get out of the vehicle, and they proceeded to search both men. Sergeant O’Connell found $350 in cash in Bryant’s pocket, and in addition to that discovery, Detectives Khoury and Hilliard found twenty-eight individually packaged bags of crack cocaine in the defendant’s boot. Both men were then placed in a cruiser to be driven to the police station. (The third occupant
Contemporaneously, other officers drove the Pontiac to the police station, where they performed a search and found a scale and handmade business cards with Bryant’s telephone number on them in the trunk of the car.
The motion judge, crediting the testimony given by Detective Khoury, an “experienced Brockton [p]olice detective,” found that the pay telephones in question were “often used to set up drug deals.” The judge ruled that “the officers had a reasonable and articulable suspicion that the people in the Pontiac were operating as a team, selling drugs,” and that the fact that the registry records showed that the owner of the Pontiac had a suspended license “provided an independent basis to stop the car.” However, the judge concluded that the facts were “not sufficient to justify a full search” of the defendant for evidence.
Discussion. The Commonwealth argues that, in light of Detective Khoury’s observations, the police had probable cause to arrest the defendant, and his motion to suppress the crack cocaine should therefore have been denied.
“ ‘[Pjrobable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.’ . . . ‘The officers must have entertained rationally “more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt.” ’ ” Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). In determining whether the record establishes that “the activity observed ... fit a ‘pattern’ or constituted a ‘classic street level drug transaction’ ” sufficient to establish probable cause, “ [reasonable inferences and common knowledge are appropriate considerations.” Commonwealth v. Kennedy, 426 Mass. 703, 705, 707 (1998) (citation omitted).
In examining whether probable cause existed, we consider “the whole ‘silent movie’ disclosed to the eyes of an experienced narcotics investigator,” particularly where there was “a sequence of activity consistent with a drug sale at a place notorious for illicit activity in narcotics.” Commonwealth v. Santaliz, 413 Mass. at 242. While the appearance of a single factor suggesting illicit activity would be insufficient to establish probable cause, the presence of multiple factors “tend[s] to establish that the defendant was currently committing a crime when he was observed.” Id. at 241. Among the factors we consider are “(1) the unusual nature of the transaction . . . ; (2) the furtive actions of the participants . . . ; (3) [whether] the encounter occurs in a
While “whether the officer sees an object exchanged is an important piece of evidence that supports probable cause, and its absence weakens the Commonwealth’s probable cause showing,” it “would critically handicap law enforcement to require in every circumstance that an officer not only witness an apparent exchange, but also see what object was exchanged, before making a search incident to an arrest.” Commonwealth v. Kennedy, 426 Mass. at 711. Accord Commonwealth v. Coronel, 70 Mass. App. Ct. 906, 907 (2007).
Here, while it is a close question, multiple factors support the existence of probable cause to arrest and search the defendant.
On the second Santaliz factor, while the actions observed were not necessarily “furtive,” the “quickness of the interaction between [the persons observed] reasonably could be interpreted by the officer as suspicious conduct, similar to the suspicious
On the third Santaliz factor, the observations began at “a place known to the police as a place of high incidence of drug traffic.” Commonwealth v. Santaliz, 413 Mass. at 241. Detective Khoury testified that the pay telephones were “frequently used to arrange for drug transactions,” and based on surveillance of these telephones the BPNU had made “multiple arrests which led to the seizure of drugs,” including five arrests he himself had made in the past year.
Detective Khoury’s extensive training and experience in narcotics, including his experience making narcotics arrests in that neighborhood, also help to make applicable the fourth Santaliz factor regarding probable cause, as he was “an experienced officer on the scene, who had made numerous drug arrests in the neighborhood, [and] considered the event as revealing a drug sale accomplished by the defendant.”
Conclusion. As the entire “silent movie” observed by Detective Khoury provided the police with probable cause to arrest and thus search the defendant, the order granting his motion to suppress the crack cocaine found on his person at the time of his arrest is reversed.
Order partially allowing motion to suppress reversed.
Codefendant Kyle Bryant, who was arrested and charged along with the defendant, also filed a motion to suppress the cocaine and money found on or about his person, which the judge denied. Bryant subsequently resolved his case and is not a party to this appeal.
Detective Khoury did not recognize any of the occupants of either car.
Detective Khoury did not see the unknown male get back into the Ford, nor were the car or its occupants later located.
We note that the judge’s memorandum and order granted the defendant’s motion to suppress only as to “the crack cocaine found in [the defendant’s] boot,” and not as to the cocaine or money found on or about Bryant or the cocaine found in the back seat of the cruiser.
The judge denied Bryant’s motion to suppress the cocaine found on his person on the following basis: “Bryant’s license was suspended and he could have been arrested for operating with a suspended license and searched, incident to his arrest for this offense. If no cocaine had been found in [the defendant’s] boot, this would have been the likely outcome. Because I find that Bryant’s arrest was proper, the cocaine found on Bryant after his arrest ... is not suppressed.”
The Commonwealth does not contest, and we do not revisit, the judge’s conclusion that in the circumstances the search of the defendant was not justifiable as a protective search conducted for officer safety. That being so, the police officers had to have probable cause to arrest the defendant when they searched him. See Commonwealth v. Kennedy, 426 Mass. 703, 705 n.1 (1998).
“The fact that the search preceded the formal arrest is not important, ‘as long as probable cause [to arrest] existed independent of the results of the search.’ ” Commonwealth v. Johnson, 413 Mass. 598, 602 (1992), quoting from Commonwealth v. Santiago, 410 Mass. 737, 742 (1991).
The defendant argues that the actions observed by Detective Khoury could be viewed as innocuous. When asked at oral argument to suggest some reasonable explanations, counsel was hard pressed to do so.
Contrary to the defendant’s assertion, the fact that the transaction took place three-quarters of one mile from the telephones, in a residential area, does not negate the fact that the observations began at a location known for drug transactions. In fact, the drive to the nearby residential neighborhood contributes to the suspiciousness of the activity, in that it supports the inference that the participants went to a less public place to conduct the transaction.
The defendant attempts to distinguish his case from Kennedy and Coronel on the basis that none of the parties here were known to the police as drug dealers or users. See Commonwealth v. Kennedy, 426 Mass. at 709; Commonwealth v. Coronel, 70 Mass. App. Ct. at 907. While knowledge on the part of the police
Although the judge made no specific finding on the point, the testimony was uncontroverted that the search of Bryant shortly preceded that of the defendant and revealed $350 in cash, which would be additional evidence of drag dealing. See Commonwealth v. Clermy, 421 Mass. 325, 331 (1995) (moderate amount of cash in one’s possession a traditional accoutrement of illegal drug trade). That different officers discovered the money on Bryant and the drugs on the defendant is of no consequence. “Where, as here, the arresting officers are engaged in a cooperative effort with other officers, probable cause is evaluated on the basis of the collective information of all the officers involved.” Commonwealth v. Kotlyarevskiy, 59 Mass. App. Ct. 240, 243 (2003), citing Commonwealth v. Mendes, 46 Mass. App. Ct. 581, 589 (1999).