Com. v. Washington

• Decision Date: 17 July 2007
• Docket Number: SJC-09871.
• Citation: 869 N.E.2d 605,449 Mass. 476
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Kyle WASHINGTON (and two companion cases<SMALL><SUP>1</SUP></SMALL>).

869 N.E.2d 605

449 Mass. 476

COMMONWEALTH v. Kyle WASHINGTON (and two companion cases¹).

SJC-09871.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 8, 2007.

Decided July 17, 2007.

Steven J. Brooks for Aaron Thomas.

Leslie W. O'Brien, Boston, for Kyle Washington.

Matthew J. Shea, Assistant Attorney General, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

The defendant, Kyle Washington, and the codefendant, Aaron Thomas, were convicted by a jury in the Superior Court of trafficking in twenty-eight grams or more of cocaine, in violation of G.L. c. 94C, § 32E (b) (2). On appeal, the two primarily challenge the denial of their motions to suppress evidence obtained as a result of an order to exit their vehicle and a patfrisk. They also challenge the admission at trial of certain hearsay statements of a coventurer, and the sufficiency of the evidence warranting a conviction of the codefendant as a principal. We transferred the cases here on our own motion, and we now uphold the denial of the motions to suppress and affirm the convictions.

Facts. We summarize the pertinent facts from the judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted testimony from the suppression hearing. We reserve for later discussion the facts relevant to the issues arising at trial.

a. The undercover investigation. This case has its genesis in a State police undercover operation targeting an individual named Dennis Garafolo, who was suspected of involvement in various crimes, including drug dealing. As part of this investigation, a State trooper made several undercover purchases of cocaine from Garafolo. On February 15, 2001, the trooper purchased more than one hundred grams of cocaine from Garafolo at a bar in Springfield. On March 27, 2001, the trooper again met with Garafolo at the same bar to purchase cocaine. It was a "very quiet" night at the bar with few patrons present. The trooper observed the codefendant enter the bar, walk into a separate rear section where there were few people, and leave that area less than one minute later. Just as the codefendant walked into this rear section, Garafolo, who could see the codefendant going in, asked the trooper for the purchase money for the drugs. The trooper gave him $2,400 in cash. Garafolo walked into the same rear section and returned with the cocaine, which he then gave discreetly to the trooper.

On April 18, 2001, the trooper met with Garafolo to buy cocaine once more, this time at another bar. The trooper gave Garafolo $2,400 in cash, folded in half and double wrapped with an elastic band. The trooper was instructed to wait in the parking lot while Garafolo went into the bar. However, after waiting about two or three minutes, the trooper followed Garafolo into the bar. He approached Garafolo and indicated impatience to conclude the deal. Garafolo responded that "his guys were there" (by which the trooper understood him to mean his suppliers), and indicated that he would be meeting them shortly in the restroom.²

The trooper sat at the bar and saw Garafolo go into the restroom, accompanied by the defendant. About one minute later, Garafolo emerged from the restroom engaged in "friendly conversation" with both defendants. The defendants and Garafolo approached the trooper. The trooper asked Garafolo and the codefendant for the best route to the eastbound Massachusetts Turnpike, and both men made suggestions. The trooper next went outside with Garafolo, who then gave him the package of cocaine the trooper had purchased. The defendants left and got into a car.

At this point in the investigation, the police were attempting to trace the cocaine to its ultimate suppliers, and did not know the names of the defendants. Through a transmitting device, the trooper provided the defendants' descriptions to surveillance officers who, unknown to the defendants, were positioned outside. The make and license plate number of the defendants' car were noted by another State trooper, who communicated this information to the surveillance officers. In order to learn the defendants' identities and to continue the investigation, the police decided to follow the defendants and conduct a motor vehicle stop. The police did not plan to arrest the defendants at that time.

b. The stop. Trooper Crystal Sloan, who was in uniform in a marked cruiser accompanied by another State trooper, was assigned to make the stop. She followed the defendants' car for approximately five to ten minutes, and when the car began traveling more than ten miles per hour over the speed limit, she stopped it. Trooper Sloan approached the driver's side of the vehicle to speak with the codefendant, who was the driver. She asked him for his license and registration, which he produced. The defendant, who was sitting in the passenger seat, had no identification, but gave his name, date of birth, and Social Security number. The defendants did nothing to make the trooper fear for her safety.

c. The exit order and patfrisk. Trooper Sloan returned to her cruiser to check the codefendant's license and determine whether there were any outstanding warrants for either man. While she was waiting for this information, two additional State police officers, Troopers Wilcox and Imelio, both in plainclothes, pulled up behind her cruiser in an unmarked car. They were part of the investigation, and previously had radioed Trooper Sloan to say that they intended to speak with the defendants while posing as members of a special police unit. Trooper Wilcox approached the driver's side of the defendants' car and Trooper Imelio approached the passenger's side. Trooper Imelio asked the defendant to step out, and both defendants got out of the car.³ Trooper Imelio conducted a patfrisk of the defendant. There was a bulge in the defendant's pocket, and the trooper asked him what it was. The defendant removed a large wad of cash, folded or rolled in half, from his pocket and stated that it was money from the bar where he worked. The police took note of the money but did not confiscate it.

d. Discovery of further evidence. Meanwhile, Trooper Sloan had verified that the codefendant had a valid Massachusetts license and that neither defendant had any outstanding warrants. As she returned to the defendants' car, she looked through the open passenger's side door and observed, on the floor, in plain view, a few small "twist-tied" baggies containing a white substance. She also saw three similar items on the pavement outside the passenger's side door. Believing these to contain narcotics, she discreetly alerted the other troopers, but no further action was taken because of the ongoing investigation. Accordingly, the defendants were allowed to proceed. After the defendants left, the police recovered the three baggies from the pavement.

Procedural history. The defendants were charged with trafficking in more than twenty-eight grams of cocaine, G.L. c. 94C, § 32E (b) (2).⁴ The codefendant was indicted in connection with the transactions on March 27 and April 18, 2001, while the defendant was charged with the April 18, 2001, transaction only. They each moved to suppress all evidence of the money observed in the defendant's possession as a result of the patfrisk, as well as the baggies recovered from the street and testimony concerning the baggies seen in the car. While conceding that the police were justified in stopping them to ascertain their identities, the defendants argued that the exit order and subsequent patfrisk violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The motions were denied and the cases proceeded to trial, where the evidence was substantially similar to that at the suppression hearing.

Motions to suppress. We address first the suppression motions from which the central issue on appeal derives. In reviewing a denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).

In general, a police search or seizure must be supported by a valid warrant. See Commonwealth v. Tarver, 369 Mass. 302, 306, 345 N.E.2d 671 (1975). However, it is well settled that, in certain "exigent circumstances" that make obtaining a warrant impracticable, Commonwealth v. Cast, 407 Mass. 891, 904, 556 N.E.2d 69 (1990), a search or seizure may be justified by probable cause. Commonwealth v. Haefeli, 361 Mass. 271, 277, 280-281, 279 N.E.2d 915 (1972). One such exigent circumstance is the threat of imminent loss of evidence. See generally Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Commonwealth v. Skea, 18 Mass.App.Ct. 685, 697 470 N.E.2d 385 (1984). Here because there was probable cause to arrest the defendants for participating in an illegal drug transaction, and crucial evidence of that transaction would have been lost if the police had not searched immediately, the search of the defendants was justified.

The motion judge determined that, at the time the defendants were stopped, the troopers had probable cause to arrest them for trafficking in cocaine. We agree. "[P]robable cause exists where . . . the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual . . . has committed or was committing an offense." Commonwealth v. Storey, 378 Mass. 312, 321, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980). Here, the police had just witnessed the defendants emerging from the restroom in conversation with Garafolo, moments after Garafolo had said he would be meeting "his guys" in the restroom to obtain the drugs, and moments before he...