Com. v. Kennedy

• Decision Date: 05 August 1997
• Docket Number: No. 96-P-777,96-P-777
• Parties: COMMONWEALTH v. James KENNEDY.
• Court: Appeals Court of Massachusetts

Page 572

679 N.E.2d 572

42 Mass.App.Ct. 668

COMMONWEALTH v. James KENNEDY.

No. 96-P-777.

Appeals Court of Massachusetts,

Essex.

Argued Dec. 13, 1996.

Decided May 21, 1997.

Further Appellate Review Granted Aug. 5, 1997.

Edward B. Gaffney, Wayland, for defendant.

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

Before IRELAND, GREENBERG and LAURENCE, JJ.

LAURENCE, Justice.

Convicted of cocaine possession and conspiracy to violate the controlled substances laws, James Kennedy assigns as error a District Court judge's denial of his motion to suppress the drugs seized from his person during a police search after his warrantless arrest. At the hearing on that motion, the following evidence was presented, all by the arresting Lawrence police officer. At 1 P.M. on a bright, clear day, August 29, 1994, the officer was surveilling the intersection of Park and Hampshire Streets in the central section of the city. The officer was there that day, in uniform and in a marked police car, in response to numerous neighborhood complaints about drug dealing occurring outside a liquor store at one corner of the intersection. The officer had frequently patrolled this general locale during the past two years of his eight-year police career and knew it to be a "high crime [and] high drug area," where he had personally made scores of "street level" drug arrests. (The officer did not, however, describe any of those arrests or the modus operandi of those arrested, nor did he compare the circumstances of any of those arrests with Kennedy's.)

While parked about forty yards from the liquor store, the officer saw a car being driven, as it turned out, by Kennedy (an individual then unknown to the officer) pull up and stop at the curb in front of the store. A man standing on the sidewalk walked over to the passenger side of Kennedy's car. The officer recognized the man as Ephraim Morales, who "had been the recipient [sic ] of many complaints in the area [a]nd ... had been identified as a person who had been arrested previously for narcotic sales." Morales leaned down and into the open passenger-side window. "It appeared [to the officer that] words were exchanged" between Kennedy and Morales, although the officer could not hear any of the words. After the brief conversation, "moments later," Morales "ran away" down Park Street, leaving the area. He returned "a minute" later to the passenger side of Kennedy's vehicle. Morales then "reached in, to the operator. [The officer] could see his hand going over. It appeared something had been exchanged" when "the driver reached over" to Morales, although the officer did not in fact see any objects being exchanged. Morales then "walked away and [Kennedy's] motor vehicle drove off."

"Based on [his] knowledge, education, training and experience ... with those types of sales", the officer concluded that he had just witnessed "activities ... [c]onsistent with a narcotics sale," particularly because of Morales's involvement. Pursuing Kennedy's car, the officer pulled it over within a block, ordered Kennedy out (without asking for his license or registration), frisked him, discovered in Kennedy's pocket a glassine bag containing rocks of crack cocaine, and arrested him. The officer acknowledged that he had stopped Kennedy's car solely because he "believed that a narcotics sale had just occurred." He also stated that he had frisked Kennedy "[f]or safety purposes" because he "was concerned with weapons ... a fear of all police officers, especially [because of] the way [Kennedy] had acted, fidgety, a little apprehensive, nervous with my approach."

Upon being caught with the drugs, Kennedy had immediately offered to identify his supplier and the drug stash. After obtaining representation, however, he decided to attack the warrantless search as invalid, based upon neither reasonable suspicion nor probable cause. At the hearing on Kennedy's motion to suppress, the prosecutor asserted that the officer's testimony evinced an investigatory stop supported by reasonable suspicion, under the rule of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. Without explicitly ruling on the propriety of the stop, the motion judge rejected the contention that the officer's questionless frisk of Kennedy was safety-inspired. She found that it "was not a protective search for weapons for the officer's safety"--properly discrediting the officer's factually-devoid claim to have frisked Kennedy because of unarticulated fear for his safety, compare Commonwealth v. Gutierrez, 26 Mass.App.Ct. 42, 47, 522 N.E.2d 1002 (1988)--but was rather conducted solely "for the purpose of searching [Kennedy] for drugs."

The judge declined to suppress the product of the frisk, ruling that the officer had probable cause to arrest Kennedy, which justified the discovery of the cocaine in the course of a valid search incident to arrest. The motion judge summarized her findings and ruling as follows:

"The activity [testified to by the officer] fit a pattern where a Seller is on the street, is approached by a prospective buyer, brief conversation takes place, the Seller moves off quickly, presumably to a nearby 'stash' and comes back where a quick encounter and exchange takes place and the buyer takes off.... Based on the officer's extensive experience in street level narcotics sales, his observations of a known drug dealer approaching a car that pulls up, followed by a brief conversation, the drug dealer quickly going around the corner and quickly coming back and the quick exchange between dealer and operator and the driver immediately leaving, warranted the officer to conclude that he was observing a classic street level drug transaction. Even though the [officer] did not see the actual drugs in the dealer's hand, or the money exchange hands, the quick, furtive gestures bespoke a drug sale. While the actions might have been susceptible of other interpretations, including innocent ones, where the person on the street was a known drug dealer in a high drug area, the conclusion drawn by the officer went well beyond a suspicion or a hunch to reach a level of probable cause that a drug sale had occurred before him giving the officer the right to stop, search and arrest the defendant without a warrant."

As intuitively persuasive as the judge's conclusions appear, we are constrained to agree with Kennedy that those conclusions transcended the evidence and that his motion to suppress should have been allowed. Probable cause to arrest Kennedy--cause resting on "facts and circumstances within the knowledge of the [arresting] police [officer sufficient] ... to warrant a prudent person in believing that the individual arrested has committed or was committing an offense," Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992)--did not exist on this record. ¹

We note initially that the record to be evaluated on appellate review must be reconstituted by disregarding several of the subsidiary findings of fact which, notwithstanding the deference we accord the motion judge in such matters, are clearly erroneous because they are not supported by the officer's testimony or reasonable inferences drawn therefrom. See Commonwealth v. Clermy, 421 Mass. 325, 328, 656 N.E.2d 1253 (1995). There was no testimony by the officer as to any "pattern" characterizing street level drug sales, nor any evidence adduced regarding what constituted a "classic street level drug transaction"; the judge could not take judicial notice of such matters since their existence is not indisputably true or of common knowledge within the community. See Liacos, Massachusetts Evidence § 2.6, at 39 (6th ed.1994). The testimony did not support the finding that the officer himself had ever arrested Morales, or that Morales was a "known drug dealer," since nothing indicated that his hearsay "arrests for narcotic sales" had ever resulted in any convictions or even indictments. Nothing in the officer's testimony justified the characterization that the "reaching" activity by Morales and Kennedy was either "quick" or "furtive"--indeed, the actions of the two, in broad daylight in the middle of a clear day on a public street in the unobstructed line of vision of a nearby marked police car and a uniformed police officer, appear to have been open, unconcealed, even flagrantly exposed to view. Contrast Commonwealth v. Savageau, 42 Mass.App.Ct. 518, 518-519, 678 N.E.2d 1193 (1997) (officers viewed suspects through binoculars from unmarked police car).

Most egregiously lacking in evidentiary support, and the crux of the error in this case, is the motion judge's finding that there had been a "quick exchange between dealer and operator." On direct examination, the officer testified only that "[i]t appeared something had been exchanged" as a result of the Morales-Kennedy reachings. On cross-examination, the officer readily admitted that he did not in fact see anything being exchanged between the two and that, if anything had been exchanged, it might, for all he knew, have been a totally innocent object associated with an entirely lawful activity.

On the basis of the factual record thus purged, we review the motion judge's conclusion that the circumstances were sufficient to constitute probable cause, by independently analyzing the correctness of the judge's application of pertinent constitutional principles to that record. See Commonwealth v. Alvarado, 420 Mass. 542, 544, 651 N.E.2d 824 (1995). We conclude that the warrantless search of Kennedy was not founded on probable cause but rather on only " 'a suspicion of criminal involvement,' " Commonwealth v. Santaliz, 413 Mass. at 241, 596 N.E.2d 337, based on circumstances that neither individually nor in combination objectively justified the conclusion that, at the moment of arrest, Kennedy had engaged in illicit drug activity. See id. at 242, 596 N.E.2d 337.

The fact that Kennedy,...