Com. v. Kennedy

• Decision Date: 17 February 1998
• Citation: 690 N.E.2d 436,426 Mass. 703
• Parties: COMMONWEALTH v. James KENNEDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 436

690 N.E.2d 436

426 Mass. 703

COMMONWEALTH v. James KENNEDY.

Supreme Judicial Court of Massachusetts Essex.

Argued Jan. 8, 1998.

Decided Feb. 17, 1998.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

Edward B. Gaffney, Wayland, for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED and MARSHALL, JJ.

MARSHALL, Justice.

The defendant, James Kennedy, was convicted of illegal possession of cocaine, G.L. c. 94C, § 34, and conspiracy to violate controlled substances laws, G.L. c. 94C, § 40, and appealed. The Appeals Court reversed the convictions. Commonwealth v. Kennedy, 42 Mass.App.Ct. 668, 679 N.E.2d 572 (1997). We granted the Commonwealth's application for further appellate review. A judge in the District Court had denied Kennedy's motion to suppress contraband evidence based on her determination that probable cause existed for a warrantless arrest and a search of Kennedy incident to that arrest. We affirm the denial of the motion to suppress the illegal drugs seized from the defendant and affirm the defendant's convictions.

1. The arresting officer testified to the following at the hearing on Kennedy's motion to suppress. The officer was experienced in narcotics investigations, focusing principally on street-level drug dealing, and had made some one hundred drug arrests with more than one-half of them involving cocaine. During the last two years of his eight-year career, the police officer had been assigned to patrol a downtown area of Lawrence that included what he described as a "high crime area, high drug area." In this area the officer had made some seventy-five previous arrests. Prior to Kennedy's arrest, the officer had received numerous complaints about a particular intersection from neighbors and a store owner, who reported that drug dealing was occurring in front of his store.

At 1 P.M. on August 29, 1994, while parked some forty yards from the intersection in a marked police cruiser and conducting surveillance of the intersection, the officer observed a vehicle pull up and stop at a curb on the corner. Efrain Morales, an individual who had been the basis "of many complaints in the area" and who was known by the police officer to have been arrested previously for narcotics sales, approached the passenger side of the vehicle. Morales leaned down, put his head in the open window, and appeared to exchange words with the driver and sole occupant of the vehicle, who later was determined to be Kennedy. Moments later, Morales ran away, but in approximately one minute, he returned to the vehicle. Morales reached into the vehicle toward Kennedy, while Kennedy reached toward Morales. It appeared to the officer that something was exchanged. Morales then walked away and the vehicle drove off.

Based on his "knowledge, education, training" and "previous experience with those types of sales," the officer believed he had witnessed activities "[c]onsistent with a narcotics sale," even though he had not seen what had been exchanged. The officer followed and pulled the vehicle over. The officer observed Kennedy to be "nervous and fidgety." He ordered Kennedy out of the vehicle, frisked him, ¹ discovered a small glassine bag containing two "rocks" of crack cocaine, and arrested him.

2. We review initially the District Court judge's findings of fact. We do so having in mind the Appeals Court's determination that some of those findings are clearly erroneous. In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error, and we view, with particular respect, the conclusions of law that are based on them. See Commonwealth v. Welch, 420 Mass. 646, 651, 651 N.E.2d 392 (1995); Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990).

First, Kennedy argues that the record does not support the judge's findings that the activity observed occurring between Morales and Kennedy fit a "pattern" or constituted a "classic street level drug transaction." ² The officer's description of the activities that he witnessed, coupled with his testimony that based on his "knowledge, education, training" and "previous experience with those types of sales," the officer believed he had witnessed activities "consistent with a narcotics sale," support the judge's finding (emphasis supplied). The judge did not simply repeat words and phrases drawn directly from the officer's admittedly sparse testimony, but restated the testimony as a foundation for her legal conclusion. "Pattern" means a "model or an original used as an archetype " (emphasis supplied). American Heritage Dictionary of the English Language 1329 (3d ed.1992). "Classic" is defined as "of a well-known type " (emphasis supplied). Id. at 352. One could reasonably infer from the officer's testimony that he had compared the observed activity with a general type of street-level drug sale with which he was familiar, and found it consistent.

Kennedy objects, however, to more than the judge's labels for classifying the observed behavior, and points out the absence of a description of a typical drug deal in the officer's testimony. We prefer more extended testimony on an officer's "inferential process," and here the Commonwealth should have elicited from the officer more detail on what a typical street level drug sale looks like from beginning to end. Commonwealth v. Taglieri, 378 Mass. 196, 199-201, 390 N.E.2d 727 (1979) (facts meaningful to trained law enforcement officer but not apparent from common knowledge and experience must be explained by disclosing both the facts and the officer's inferential process). In this case, the judge inferred from the officer's testimony that the features of the specific example observed also described the general type. While more thorough testimony would have been preferable, the judge's findings on this issue were entitled to deference because they were sufficiently related by reasonable inference to the officer's testimony. In reaching this conclusion, we do not "unduly exalt the significance of generalized police expertise." Commonwealth v. Kennedy, 42 Mass.App.Ct. 668, 678, 679 N.E.2d 572 (1997). The pattern of street-level drug sales represented by the Kennedy-Morales interaction is not so obscure or remote from the common knowledge of a District Court judge that she could not supplement with her own inferences the officer's testimony concerning his inferential process in identifying the observed Kennedy-Morales interaction as a drug sale.

Next, Kennedy objects to the judge's finding that Morales was a "known drug dealer" because nothing indicated that his arrests for narcotic sales had ever resulted in any convictions or even indictments. ³ The officer knew that local residents had complained about Morales. The officer's slightly garbled testimony on Morales's arrests reasonably could be interpreted to say that other officers had identified Morales as having been arrested for drug dealing. Defense counsel raised no objection to this testimony on hearsay grounds. Conviction or indictment are not the only reliable grounds for someone to be known as or reputed to be a drug dealer. The judge's finding that Morales was a known drug dealer has support in the record and was not clear error.

Next, Kennedy objects to the judge's finding that the reaching by Morales and Kennedy toward each other was "quick" and "furtive." Testimony supported the judge's finding that Morales had an initial "brief" conversation with Kennedy and "quickly went down Park Street and returned within a minute." ⁴ There was no testimony on how quickly Morales reached into the vehicle. The officer testified that after the reaching activity, Morales walked away and the vehicle drove off. We think the record is sufficient to support an inference that the entire sequence of events transpired quickly. We agree that there is no direct support in the record to characterize the gestures as "furtive," except in so far as furtiveness may be inferred from the quickness of the interaction.

Finally, Kennedy objects to the judge's finding that there had been "a quick exchange between dealer and operator." On direct examination, the officer testified that "[i]t appeared something had been exchanged." Defense counsel on cross-examination asked the officer, "[Is it] fair to say that you didn't see anything that was exchanged, if anything was being exchanged?" The officer answered, "That's correct." From this testimony, the judge could reasonably infer that the officer observed an exchange of something without being able to see what it was that had been exchanged.

After review of the judge's findings and the hearing transcript, we conclude that most of the findings objected to have support in the record. "Reasonable inferences and common knowledge are appropriate considerations for determining probable cause." Commonwealth v. Welch, 420 Mass. 646, 650, 651 N.E.2d 392 (1995), quoting Commonwealth v. Alessio, 377 Mass. 76, 82, 384 N.E.2d 638 (1979). See Commonwealth v. Byfield, 413 Mass. 426, 429-430, 597 N.E.2d 421 (1992). "Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense." Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618, 563 N.E.2d 1379 (1990), S.C., 410 Mass. 1005, 572 N.E.2d 553 (1991), quoting Commonwealth v. Drew, 4 Mass.App.Ct. 30, 32, 340 N.E.2d 524 (1976). "An inference ... 'need only be reasonable and possible; it need not be necessary or inescapable.' " Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989), quoting Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). We have noted some of the judge's findings that we do not find sufficiently supported by the testimony; we exclude these findings from our probable cause analysis. As for most of the criticized findings, the judge's inferences were derived reasonably from...