Com. v. Pimentel

• Decision Date: 17 July 1989
• Docket Number: No. 88-P-237,88-P-237
• Parties: COMMONWEALTH v. Manuel PIMENTEL.
• Court: Appeals Court of Massachusetts

Page 1335

540 N.E.2d 1335

27 Mass.App.Ct. 557

COMMONWEALTH v. Manuel PIMENTEL.

No. 88-P-237.

Appeals Court of Massachusetts,

Essex.

Argued Dec. 16, 1988.

Decided July 17, 1989.

Margaret J. Perry, Asst. Dist. Atty., for the Com.

Jose A. Espinosa, for defendant.

Before PERRETTA, SMITH and WARNER, JJ.

PERRETTA, Justice.

Following an evidentiary hearing, a Superior Court judge granted the defendant's motion to suppress as evidence cocaine in a plastic bag dropped to the sidewalk by the defendant upon the approach of three police officers, one of whom testified at the hearing. The officer stated that he was going to make a threshold inquiry of the defendant because he suspected that a "drug deal had taken place." Based upon the officers' testimony and Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974), the judge concluded that the officers had acted on a "hunch" rather than a reasonable suspicion and granted the motion. ¹ On the facts found by the judge, we conclude that because the officers' course of action did not constitute a stop or a seizure of the defendant, the motion to suppress should have been denied. We reverse the order.

I. The Evidence.

About 8:30 P.M., March 10, 1987, State Trooper Richard L. Fraelick, who had extensive experience in narcotics investigations, was driving an unmarked vehicle in Lawrence. His partner, Trooper Chester Bishop, and a detective from the Methuen police department, identified at the suppression hearing only as Fram, were with him. They were on Newbury Street driving toward the Essex Street intersection. Because of the many restaurants and clubs in the area, including the 101 Lounge, the lighting was very good. Fraelick was familiar with this section of the city and knew it to be one of drug activity. Within three months of the night in issue, he had made four drug-related arrests in that area, and his duties as a narcotics officer had required him to be in the 101 Lounge on several occasions.

As Fraelick drove toward the 101 Lounge, he saw a pick-up truck bearing New Hampshire plates parked along the curb. There was a man in the driver's seat and another male, the defendant, stepping down from the passenger door of the truck to the sidewalk. He had a bundle of clothes and a small puppy in his arms. Fraelick was now almost alongside the truck. He looked at the defendant standing on the sidewalk just as he (the defendant) looked up at him. There was instant mutual recognition, and the defendant made some sort of motion with his left hand.

Fraelick and the defendant recognized each other because the defendant had been arrested in the past for drug offenses. Further, Fraelick had searched the defendant's apartment and had found currency, scales, baggies, other drug paraphernalia, and a large quantity of cocaine.

As soon as Fraelick saw the defendant and his somewhat obscure hand movement, he said to Bishop and Fram, "There's Manny. He's starting to draw up something." He immediately stopped the vehicle parallel to the truck and got out from the driver's door while Bishop and Fram got out on the passenger side.

In no more than a matter of seconds, the following events happened. Bishop and Fram walked to the back and around the rear of the truck; Fraelick walked to and around the front. As he turned by the right front bumper of the truck, he saw that the defendant was about seven to eight feet away. He was standing with his back to Fraelick, watching Bishop and Fram walking up to him. Apparently unaware of Fraelick's presence, the defendant brought his hand from around front to behind his back and let drop a clear plastic bag. Now moving quickly, Fraelick came forward and placed his foot over the bag.

Bishop and Fram then ordered the defendant to stand against the side of the truck. Fraelick retrieved the bag from the sidewalk and saw that the bag contained a white powder which he believed to be cocaine.

II. The Encounter.

In allowing the motion to suppress, the judge concluded that the circumstances described by Fraelick did not give rise to a reasonable suspicion that the defendant had committed a crime and, therefore, that he could not be briefly detained for purposes of a threshold inquiry. ² See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Silva, 366 Mass. at 405, 318 N.E.2d 895. We need not consider, however, whether, on the facts found by the judge, the police acted on a hunch or on reasonable suspicion.

"If there was no seizure, the police activity in questioning the defendant did not violate the defendant's constitutional rights. If, however, there was a seizure not justified by reasonable and articulable suspicion, the illegality of the seizure may render inadmissible the evidence obtained." Commonwealth v. Sanchez, 403 Mass. 640, 643, 531 N.E.2d 1256 (1988). See also Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); United States v. West, 651 F.2d 71, 73 (1st Cir.1981), vacated on other grounds, 463 U.S. 1201, 103 S.Ct. 3528, 77 L.Ed.2d 1382 (1983), cert. denied, 469 U.S. 1188, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985). The pivotal question, therefore, is whether the police stopped or seized the defendant before he dropped his drugs.

Not every encounter between an officer and a citizen constitutes a stop or seizure. Whether the defendant was stopped or seized depends upon the circumstances of the encounter. "An objective standard is used to determine when a seizure has occurred: 'a person has been "seized" ... if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985), quoting from United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). See also, cases and authorities collected and discussed in Borges, 395 Mass. at 792-793, n. 3, 482 N.E.2d 314.

Because the average citizen questioned by the police does not necessarily feel free to walk away without responding in some manner, we look to circumstances beyond the show of governmental authority inherent in the mere presence of the police. See Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16; United States v. Mendenhall, 446 U.S. at 553, 100 S.Ct. at 1876. See also 3 W. LaFave, Search and Seizure § 9.2(h), at 412 (2d ed. 1987). "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See Terry v. Ohio, supra at 19, n. 16, 88 S.Ct. at 1879, n. 16; Dunaway v. New York, 442 U.S. 200, 207, and n. 6, 99 S.Ct. 2248, 2254, and n. 6, 60 L.Ed.2d 824 [1979]; 3 LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person." United States v. Mendenhall, 446 U.S. at 554-555, 100 S.Ct. at 1877-1878.

On the facts found by the judge, we see nothing in the officers' conduct from which it could be concluded that they engaged in a "show of authority," Commonwealth v. Sanchez, 403 Mass. at 644, 531 N.E.2d 1256, which would cause a reasonable person to feel that he was not free to walk away. Although we think that the number of officers involved in an encounter could be great...