Com. v. Rivera

• Decision Date: 28 March 1989
• Docket Number: No. 88-P-135,88-P-135
• Parties: COMMONWEALTH v. Edwin RIVERA.
• Court: Appeals Court of Massachusetts

Page 24

534 N.E.2d 24

27 Mass.App.Ct. 41

COMMONWEALTH v. Edwin RIVERA.

No. 88-P-135.

Appeals Court of Massachusetts,

Worcester.

Argued Nov. 14, 1988.

Decided Feb. 23, 1989.

Further Appellate Review Denied March 28, 1989.

Jane Larmon White, Committee for Public Counsel Services, for defendant.

Katherine E. McMahon, Asst. Dist. Atty., for Com.

Before GREANEY, C.J., and KAPLAN and ARMSTRONG, JJ.

KAPLAN, Justice.

Indicted on two counts of possession of controlled substances, cocaine and heroin, with intent to distribute, the defendant Rivera moved before trial to suppress these narcotics found on his person at the time of his arrest. The motion was heard and denied with findings, ruling, and order. The defendant stood trial, jury waived, and was convicted of the offenses. He appeals, claiming error in the refusal to suppress.

Evidence at the pretrial hearing consisted of the testimony of Officer Daniel O'Connor, a member of the vice squad of the Worcester police department. The defendant did not cross-examine or offer evidence on his own behalf.

The facts found, supplemented by details from the transcript of the hearing on the motion, were these. About 9:00 A.M., October 7, 1985, a sunny morning, O'Connor and Officer Paul Ryan, also of the vice squad, both in plainclothes, were driving on patrol in an unmarked car on New Vista Lane in the Great Brook Valley area of Worcester. At that date the particular location, centering at 1-7 New Vista Lane, near an intersection with Constitution Avenue, was known to the police as "the point," that is, a specific place of high drug activity, where cocaine and heroin could readily be obtained at any hour of the day or night. The point had been at the New Vista location for three or four months; its location would change from time to time, in part to thwart or slow arrests by the police.

O'Connor, the driver, spotted at his right the defendant and two other men standing on the sidewalk at the point. The defendant was facing the car as it approached. At a distance estimated as about twenty yards from the defendant, O'Connor saw him holding a plastic baggie in his hand at chest level. The baggie was in O'Connor's clear view, but at that distance he could not see its contents through the plastic. O'Connor and the defendant made "eye contact." The defendant, then, in one movement, commencing to turn his back, plunged the baggie inside the front of his pants. O'Connor pulled up the car next to the men. He left the car, grabbed the defendant, and reached into the defendant's pants and drew the baggie from the crotch area. It contained a number of packets evidently of drugs (and later confirmed as such): ten silver packets of cocaine, four yellows of cocaine, seven grays of heroin, and one rainbow of heroin. ¹

O'Connor, an experienced narcotics officer, as was Ryan, recognized the baggie at a distance as a type regularly used to contain and carry smaller packets of cocaine and heroin.

The judge found that O'Connor and Ryan, on the basis of their observations as experienced narcotics officers, had "mentally recorded information which was sufficient to warrant a prudent man in believing that the defendant Rivera was at that time committing a crime. At the very least, that crime being possession of a controlled substance."

We agree that the arrest and search were based on probable cause. ² Accordingly, the motion to suppress failed.

Each of four elements in the present case tended to prove that the defendant was currently committing a crime: (1) the defendant was in possession of what appeared to be evidence of a crime, a baggie reasonably identified as a type of container regularly used in illicit drug transactions; (2) the defendant reacted with behavior reasonably interpreted to be evasive or furtive; (3) the encounter was in a place of high incidence of drug traffic; (4) experienced investigators on the scene evaluated the event as indicating present criminal conduct on the part of the accused. It may be assumed that no one of these elements, standing alone, would suffice to establish probable cause for arrest and search. ³ However, it is settled by numerous decisions that a concurrence of the first and second factors--identification of the baggie in the person's possession and evasive reaction by him--readily cumulate to provide probable cause. The inference is measurably strengthened when the site of the episode is a notorious drug market, and is further enhanced by the opinion on the whole matter of experienced officers responsible for the arrest.

A sampling of the decisions referred to appears in 2 LaFave, Search & Seizure § 3.6(d), at 58-62 (2d ed. 1987), where the author writes: "As the Supreme Court concluded in [Sibron ] v. New York, [392 U.S. 40, 66-67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968) ], 'deliberately furtive actions ... at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.' Thus, if the police see a person in possession of a highly suspicious object or some object which is not identifiable but which because of other circumstances is reasonably suspected to be contraband, and then observe that person make an apparent attempt to conceal that object from police view, probable cause is then present." (Footnotes omitted.) ⁴ Characteristic situations cited by LaFave are those where an officer sees a manila envelope or a hand-rolled cigarette symptomatic of a transaction in, or possession of, drugs, and the suspect, alerted to the near possibility of detection, attempts to discard or conceal the evidence. See Price v. United States, 429 A.2d 514, 516-517 (D.C.1981); State v. Ruffing, 127 N.H. 370, 371, 499 A.2d 1351 (1985); State v. Maguire, 129 N.H. 165, 170, 523 A.2d 120 (1987); State v. Hunt, 15 Or.App. 76, 79-80, 514 P.2d 1363 (1973); Hollis v. Commonwealth, 216 Va. 874, 876-877, 223 S.E.2d 887 (1976). The Price case is an example of the court's remarking also upon the place of the arrest and the experience of the arresting officer.

Although we speak of "elements" or features of the cases, it is to be understood that no two cases are precisely alike; each has its singular aspects. In our jurisdiction, no decided case squares exactly with the facts of the present case, but the trend of decisions is evident, and Commonwealth v. Ortiz, 376 Mass. 349, 350-351, 353-355, 380 N.E.2d 669 (1978), where suppression was refused, may be taken to represent them all. There officers in an unmarked car through binoculars observed a parked car near Blackstone Park in Boston, an area of heavy drug traffic. The...