Com. v. Stephens

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation451 Mass. 370,885 N.E.2d 785
Docket NumberSJC-09943
Decision Date08 May 2008
885 N.E.2d 785
451 Mass. 370
Supreme Judicial Court of Massachusetts, Essex.
Argued January 8, 2008.
Decided May 8, 2008.

[885 N.E.2d 788]

Allison J. Koury, Providence, RI, for the defendant.

Kenneth Bresler, Assistant District Attorney, for the Commonwealth.

David M. Skeels, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Daniel F. Conley, District Attorney, & John P. Zanini & Helle Sachse, Assistant District Attorneys, for District Attorney for the Suffolk District & others, amici curiae, submitted a brief.



451 Mass. 371

We decide in this case whether the Commonwealth is collaterally estopped from relitigating a suppression issue after the issue has been resolved against it in an earlier proceeding against a different defendant. In connection with an alleged drug transaction that occurred in May, 2003, the defendant, Elvin Stephens, and a codefendant were charged in the Lawrence Division of the District Court Department with possessing cocaine with intent to distribute in violation of G.L. c. 94C, § 32A,1 possession of cocaine in violation of G.L. c. 94C, § 34,2 and conspiracy to violate the controlled substances act in violation of G.L. c. 94C, § 40. Stephens was then indicted as a subsequent offender for distributing cocaine, and his case proceeded to the Superior Court, while his codefendant's case remained in the District Court.

In the District Court, the codefendant moved to suppress evidence seized during a warrantless stop and search of the automobile in which he and Stephens were sitting when they were stopped—a search that underlay the charges against Stephens and the codefendant—and statements made by him during the search. The judge allowed the codefendant's motion,3 from which interlocutory ruling the Commonwealth did not seek leave to appeal. The charges against the codefendant subsequently were dismissed for failure to prosecute.

In the interim, Stephens moved in the Superior Court to suppress

451 Mass. 372

the same evidence, as well as statements made by him during the search. Several weeks after the codefendant's motion had been allowed—a development unknown to Stephens—an evidentiary hearing took place on his motion in the Superior Court. The judge in the Superior Court denied Stephens's motion to suppress, issuing detailed findings of fact and rulings of law. He concluded that the police officers had

885 N.E.2d 789

reasonable suspicion to stop Stephens and probable cause to search his vehicle.

Months later, Stephens learned that the codefendant had successfully moved to suppress the evidence in the District Court. In consequence, Stephens moved for reconsideration of the denial of his motion to suppress, claiming that the Commonwealth was collaterally estopped from relitigating the propriety of the search because the issue had been resolved against it in the District Court. The Superior Court judge (who had earlier ruled on Stephens's motion to suppress) denied the motion, concluding that "mutuality of the parties must exist in the criminal context" and there was no mutuality here because "the defendant himself" was not a party in the District Court case. After an initial mistrial, Stephens was tried and convicted of distributing cocaine, and was convicted as a subsequent offender. He appealed, and we transferred the case here on our own motion.

In addition to the collateral estoppel claim, we must resolve whether (1) if collateral estoppel does not apply, the Superior Court judge erred in denying Stephens's motion to suppress; and (2) the evidence was sufficient to prove that Stephens was the seller rather than the buyer of cocaine. For reasons we shall explain, we agree with the judge in the Superior Court that the suppression order issued in the District Court in the codefendant's case did not have preclusive effect against the Commonwealth in this case. We further conclude that the stop and search of Stephens's motor vehicle was lawful and that there was sufficient evidence to support Stephens's conviction. We affirm.

1. Factual background. We summarize in some detail the facts found by the motion judge, all of which are supported by the evidence. See Commonwealth v. Sneed, 440 Mass. 216, 217, 796 N.E.2d 1284 (2003); Commonwealth v. Morse, 427 Mass. 117, 118, 691 N.E.2d 566 (1998).

During the early evening of May 22, 2003, two "experienced"

451 Mass. 373

State police officers, in the motion judge's words, Sergeant Francis Hughes and Trooper Ernest Doherty, were conducting a surveillance of the parking lot of a Denny's restaurant located at the intersection of two highways in Lawrence. This was a "prime location for" and "frequent meeting place for illegal drug transactions." In that general location a "typical modus operandi" for an illegal drug transaction was as follows: a prospective buyer would contact a prospective seller and arrange to meet at one of the establishments within the intersection area; the buyer would arrive first and park his vehicle to await the seller; on arrival of the seller, the two frequently would drive their vehicles to a more private location to consummate the illegal drug transaction.

On the night in question, the two officers were working together, in separate unmarked vehicles. They were watching a grey Honda automobile parked in a rear area of the Denny's parking lot, an area that "was not usually frequented by customers of the Denny's Restaurant." The driver, and sole occupant, of the Honda was later identified as the codefendant. After approximately fifteen to twenty minutes, the officers noted another male, later identified as Stephens, arrive and park his blue Ford Expedition vehicle in a parking space approximately three spaces away from the Honda. There was no apparent contact between the two men, but fully visible to both was a marked Lawrence police cruiser parked in a neighboring lot. After approximately two to three minutes, the codefendant drove his Honda directly in front of the Ford, and stopped. The codefendant then nodded his head in a manner that "indicated that he wished the

885 N.E.2d 790
Ford] to follow." The codefendant drove out of the parking lot, followed by Stephens in the Ford. The two officers followed surreptitiously in their respective vehicles. Stephens passed the codefendant and led the Honda into a gasoline station parking lot, which was darker and more secluded than the restaurant parking lot. The two men parked their motor vehicles next to each other, as the officers continued to watch from across a highway.

The codefendant left his Honda, opened the passenger door of the Ford and climbed in. At this point the officers drove their cars to the gasoline station lot and parked beside, but not blocking,

[451 Mass. 374

either vehicle. Both officers left their vehicles and approached the Ford, in which Stephens and the codefendant were now seated. Sergeant Hughes approached the passenger's side of the Ford, shining his flashlight into the vehicle, which illuminated the codefendant's shoulder and head. The codefendant looked at Hughes and then turned his head and upper torso and made a movement, which the motion judge described as "furtive," reaching down toward the center console. At the same time, Trooper Doherty approached and illuminated the driver's side of the Ford and saw Stephens look toward him, eyes widened in surprise. The trooper noted that Stephens was holding a black object in the area of his chest, which he quickly lowered to the area of his lap. Fearing that the black object was a weapon, Trooper Doherty immediately opened the driver's side door and grabbed Stephens's hands to minimize the danger to himself. While doing so, he saw "hundreds of dollars" in Stephens's lap. Also in Stephens's lap the trooper saw several clear plastic sandwich bags; the top of each was knotted and one corner cut. Trooper Doherty was aware from his training and experience that the alterations to the plastic bags were consistent with packing illegal drugs.

Trooper Doherty ordered Stephens out of the vehicle, conducted a patfrisk, and, feeling no weapon, informed him of his Miranda rights. At the same time, Sergeant Hughes, concerned about his safety due to the codefendant's "furtive movement toward the console area," opened the passenger door and ordered the codefendant out of the vehicle. He conducted a patfrisk of the codefendant and advised him of his Miranda rights. The police officers then questioned the two men separately. Neither man knew the other's last name. They gave varying explanations of their activities: Stephens said they were meeting to talk, while the codefendant said they were meeting for drinks.

After conferring with Sergeant Hughes, Trooper Doherty searched the front seat area of the vehicle. Under the passenger's seat next to the center console, he found three small clear cellophane bags containing white powder that appeared to him to be cocaine. The trooper collected $345 from the area of the driver's seat, an amount approximating the street value of the three bags of cocaine he had found. The officers then placed

451 Mass. 375

both men under arrest. At trial, Trooper Doherty testified that, subsequent to the arrest, he searched Stephens and found, in his left pants pocket, additional plastic bags that had been altered.

2. Nonmutual collateral estoppel in criminal cases. The doctrine of collateral estoppel provides that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Commonwealth v. Lopez, 383 Mass. 497, 499, 420 N.E.2d 319 (1981), quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In a criminal case, the applicability of...

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    ...appellate review. As such, the conviction was not final, and the doctrine of estoppel was inapplicable. See Commonwealth v. Stephens, 451 Mass. 370, 375, 885 N.E.2d 785 (2008) ("doctrine of collateral estoppel provides that when an issue of ultimate fact has once been determined by a valid ......
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