Com. v. Wooden

• Citation: 13 Mass.App.Ct. 417,433 N.E.2d 1234
• Parties: COMMONWEALTH v. Vincent K. WOODEN.
• Decision Date: 15 April 1982
• Court: Appeals Court of Massachusetts

Page 1234

433 N.E.2d 1234

13 Mass.App.Ct. 417

COMMONWEALTH v. Vincent K. WOODEN.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 17, 1981.

Decided April 15, 1982.

J. W. Carney, Jr., Boston, for defendant.

Bonnie Gottschalk, Asst. Dist. Atty., for Commonwealth.

Before GOODMAN, PERRETTA and KASS, JJ.

PERRETTA, Justice.

After a jury-waived trial, the defendant was convicted on charges that he possessed cocaine and marijuana with the intent to distribute those drugs. G.L. c. 94C, § 32. On appeal he alleges error in the denials of his motion to suppress and motions for a required finding of not guilty of possession with intent to distribute. We reverse the convictions on the greater offenses and remand for resentencing on the lesser charges of possession.

About 10:00 P.M. on August 13, 1979, three plainclothes police officers, Saunders, Williams, and Callanan, were in an unmarked police cruiser patrolling the Park Square area of Boston. Saunders testified that as they were driving down Boylston Street, he observed two men, later identified as the defendant and one Belmira Sena, walking in the direction of the oncoming cruiser. Saunders testified that he saw that Sena "had something in his hand, apparently showing it to" the defendant. The two men walked past the cruiser and turned left onto Carver Street. As the officers entered Carver Street, the two men turned, looked at the car, and "started trying to move rather quickly" down the street. The officers pulled abreast of the men, and, as they did so, Saunders saw Sena drop a manila envelope to the ground. Williams, but not Saunders, saw that the defendant had something clenched in his hand, and "he appeared to be stuffing something in his pocket."

The officers got out of the car and identified themselves. Callanan retrieved the manila envelope and gave it to Saunders, who was standing near Sena. Upon opening the envelope, Saunders saw "a few packages, magazine type packages, wrapped in like newspaper." When Saunders opened these packages he saw "a white powder." After making these observations, Saunders placed Sena and the defendant under arrest.

Williams testified that when he got out of the car, he stood in front of the defendant, telling him "to stay still for a minute." Williams heard Saunders announce that Sena and the defendant were under arrest. Williams testified that he then told the defendant that he had seen him "stuffing stuff" in his pockets and that he was going "to perform a threshold search." Williams did not pat the defendant down; rather, he reached into the defendant's pockets and removed twelve "little packets."

Six packets of cocaine were found in the envelope dropped by Sena, and twelve packets, six of cocaine and six of marijuana, were taken from the defendant by Williams. The Commonwealth has never charged the defendant with any offense related to the drugs in the envelope. Saunders described the six packets of marijuana taken from the defendant as "$10 bags" having a total "street value" of $60; the cocaine weighed 6.63 grams and had a "street value" of $100 a gram.

1. The Motion to Suppress.

In denying the motion to suppress, the judge made the following oral finding: "(T)his is not a routine stop and frisk without anything being noticed or without any actions being observed, it was a frisk after a talk with a defendant and it was after observing something happening by this defendant which the testimony indicated he had something in his hands and it disappeared by thrusting or shoving it into his pockets." The judge concluded that "(t) hese facts and these circumstances in and of themselves ... warranted the search."

We deal first with the officers' "stop" of the defendant and Sena. Here the defendant argues that the police acted on the basis of seeing two men engaged in conversation walking down the street, one showing "something" to the other. The defendant claims that this observation was an insufficient ground upon which "to initiate contact with the two youths." If by this phrase the defendant means that the police acted improperly when they followed him and Sena onto Carver Street, he is wrong. We will not scrutinize police activity based on hunch or suspicion until such time as that activity clashes with individual rights. After the police first saw the two men, one showing something to the other, they neither stopped the men to make a threshold inquiry, see Commonwealth v. Ferrara, 376 Mass. 502, 504, 381 N.E.2d 141 (1978), nor did they pursue them "to effect a stop." Commonwealth v. Thibeau, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2401, 2403, 429 N.E.2d 1009 (1981). We see nothing improper about the inoffensive surveillance based on hunch.

Our analysis thus begins at the point where the police pulled abreast of the two men. The defendant argues that the fairest inference to be drawn from the facts is that Sena dropped the envelope because "he was startled and apprehensive at the imminent approach of the strangers." We view that inference as more generous than fair. Whether Sena dropped the envelope upon seeing the car or upon seeing three men alighting from it is not critical. The point is that the facts show that the officers immediately identified themselves and that Sena was leaving the envelope in his wake. These facts are inconsistent with any notion that Sena was frightened and inadvertently lost his grip on the envelope which was then retrieved by Callanan before Sena had the chance to reclaim it. Contrast People v. Anderson, 24 N.Y.2d 12, 298 N.Y.S.2d 698, 246 N.E.2d 508 (1969). The key is that Sena's act was not prompted by any police misconduct. Compare Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff.L.Rev. 399, 400, 416, 419 (1971) ("(I)f overbearing conduct outside the realm of legitimate investigation falls beyond the pale of the fourth amendment, any attempt to exploit it by retrieving the fruits for subsequent use in a criminal prosecution should be condemned and suppressed under the same authority"). As the police did nothing "beyond the pale" to prompt Sena's decision to jettison the envelope, and as they did not intrude upon the rights of the two men until after the envelope was retrieved and its contents discovered, the matter is controlled by Commonwealth v. Battle, 365 Mass. 472, 475-476 and n.4, 313 N.E.2d 554 (1974). See Commonwealth v. Fox, 3 Mass.App. 123, 125, 323 N.E.2d 917 (1975); Commonwealth v. Lanigan, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 1410, 1411, 423 N.E.2d 800 (1981). Contrast Commonwealth v. Thibeau, --- Mass. at --- - ---, Mass.Adv.Sh. (1981) at 2403-2404, 429 N.E.2d 1009.

The issue before us then narrows to whether the police had probable cause to arrest the defendant. He argues that if probable cause existed, it related to Sena alone and that his (the defendant's) arrest was based on nothing more than his association and presence with Sena. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Commonwealth v. Dirring, 354 Mass. 523, 531, 238 N.E.2d 508 (1968). ¹ The Commonwealth argues that the police had probable cause particularized to the defendant because they "could reasonably infer in the circumstances that the defendant had just given Sena the envelope he discarded." The inference advanced by the Commonwealth is too speculative to have any probative value. Such an inference could easily defeat the principles reinforced in Ybarra v. Illinois, 444 U.S. at 92-93, 100 S.Ct. at 343.

Nor do we agree with the defendant. By his argument, he asks that we limit the circumstances of his arrest to the facts as related by Saunders alone and that we not consider the observation made by Williams prior to the actual arrest. As Saunders observed Sena drop the envelope, Williams saw that the defendant had something clenched in his hand and that "he appeared to be stuffing something in his pocket." Saunders did not have the benefit of Williams's knowledge, and it does not appear from the transcript that Williams was told what had been found in the envelope before he reached into the defendant's pockets. Thus, if Williams had been acting alone, he could not have arrested either Sena or the defendant without knowledge of the contents of the discarded envelope, see Commonwealth v. Bacon, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 2223, 2227, 411 N.E.2d 772 (1980). The same holds true of Saunders. If acting alone, he could not have arrested the defendant on the sole basis of the contents of the envelope dropped by Sena. Ybarra v. Illinois, 444 U.S. at 92-93, 100 S.Ct. at 343.

On the facts of the case, however, we do not think it fatal to the defendant's arrest that neither Williams nor Saunders gave the other the benefit of his respective observations. Here Saunders and Williams were working in concert, and they were within an arm's reach of each other as well as the suspects whom they were confronting. They were "in a close time-space proximity to the questioned arrest (and) search." W. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 3.5(c), at 633 (1978). See Commonwealth v. Chaisson, 358 Mass. 587, 590, 266 N.E.2d 311 (1971); Commonwealth v. Corridori, --- Mass. ---, --- n.10, Mass.App.Ct.Adv.Sh. (1981) 468, 477 n.10, 417 N.E.2d 969 (1981).

Imputing Williams's knowledge to his fellow officer, we view the circumstances of the defendant's arrest as follows. The defendant is walking with Sena, who shows him something. As the two men see strangers approach, they start to walk away quickly, Sena drops an envelope, and the defendant stuffs something into his pockets. The police identify themselves, retrieve the envelope, and discover that it contains a substance reasonably believed to be narcotics. Contrast Ybarra v. Illinois, 444 U.S. at 92-93, 100 S.Ct. at 343.

We do not hold that a gesture of stuffing something into one's pockets justifies, as matter of law,...