Commonwealth v. Guardione
| Decision Date | 05 May 2023 |
| Docket Number | 22-P-335,22-P-409 |
| Parties | COMMONWEALTH v. KAITLYN GUARDIONE (and a companion case[1]). |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants bring this interlocutory appeal from the denial of their motions to suppress, arguing that the police lacked reasonable suspicion to conduct the stop of their vehicle which led to the seizure of drugs and other evidence.[2] The Commonwealth claims (and the motion judge agreed) that the police had reasonable suspicion for the stop where the police knowledge included (1) information from a confidential informant (CI) that the CI had seen the same car repeatedly stopping outside a house in a residential neighborhood of Weymouth over a period of weeks, after which a person would leave the car, go behind the fence of the house and meet with an occupant of the home, and return in approximately thirty seconds, and (2) police surveillance that witnessed some of this behavior -- the car stopping for a brief period outside the home, and in one instance an occupant leaving the car and then quickly returning. At the time of the stop, the police knew nothing material about the car or its occupants, although the police did know the house, as they had been there for drug-related activity in the past.
Ultimately, we agree that on the record established, the motions to suppress should have been granted. Reasonable suspicion to justify a stop is not a high bar, as demonstrated by the seminal case of Terry v. Ohio, 392 U.S. 1 (1968) itself, and this case is accordingly a close one. Here, however, although police surveillance corroborated some of what the CI reported, such that those activities were properly included in the reasonable suspicion calculus, the police were unable to corroborate sufficient details to give rise to reasonable suspicion that the activities in question were criminal -- as opposed to innocent behavior such as periodic home deliveries. The police thus were not justified in stopping the defendants as they were driving away from the home.
Background.[3]
In October 2019, a CI contacted Weymouth police detective Robert Gervasi to report concerns about suspected drug activity. The CI, who was not previously known to the police, reported seeing a black Ford Taurus (vehicle) with a female driver and male occupant make several brief visits to a Weymouth residence (the property). The CI explained that either the driver or the occupant would exit the vehicle, go to the backyard of the property, and briefly meet with a resident of the property. The CI could not see what took place in the backyard, because the CI's view was obstructed by a fence, but hypothesized that the meetings were drug exchanges. Detective Gervasi, an experienced drug investigator, believed that the details that the CI provided were consistent with drug transactions and began drive-by surveillance of the property. Detective Gervasi's initial surveillance efforts failed to corroborate the CI's tip.
In January 2020, the CI again contacted Detective Gervasi and expressed that the car stops were "getting active again." The CI reported seeing the same vehicle park near the property and a male passenger exit, briefly meet with a resident of the property, one Janice Bryant, and then return to the vehicle.
Accordingly, on the evening of January 27, 2020, Detective Gervasi and another detective resumed surveillance of the property. At approximately 5:30 P.M., they saw the vehicle park near the property and a male passenger exit the vehicle, enter the side yard, and then return to the vehicle approximately thirty seconds later. Gervasi, however, could not see what took place in the side yard because it was dark and his view was obstructed by a fence.
Two days later, on January 29, 2019, Detective Gervasi resumed surveillance, together with Detective Sergeant Donnelly and Detectives Galvin and Brennan. Through his rear-view mirror, Detective Galvin saw the vehicle arrive at the property around 5:50 P.M., park, and shut off its lights. Detective Gervasi, stationed separately at a nearby location, saw that the vehicle had a female driver and a male passenger. However, given that it was after dark and the lack of lighting, Detective Galvin was unable to see whether either occupant left the vehicle. About thirty seconds after parking, the vehicle's lights turned back on and the vehicle left. Based on his over twenty years of police experience, Detective Brennan testified that the detectives' observations were "definitely consistent with a street-level transaction."
The detectives followed the vehicle to a nearby intersection, where the vehicle came to a stop at a traffic light. Three detectives then approached the vehicle on foot, with Detectives Donnelly and Galvin approaching the female driver and Detective Gervasi approaching the male passenger. Detective Donnelly asked the driver for identification, which identified her as the defendant Guardione. Guardione was thereafter arrested on an outstanding warrant. Meanwhile, Detective Gervasi asked the male passenger, later identified as the defendant Higuera, to open the passenger-side door. After Higuera opened the door, Detective Gervasi inquired whether Higuera had any weapons or drugs. Higuera said that he had "dope" in his pocket and eventually produced a large sandwich bag containing smaller baggies filled with a white powder. Upon further questioning from Detective Gervasi, Higuera produced another small baggie, also containing a white powder, from his sock. The detectives arrested Higuera, read him his Miranda warnings, and searched the vehicle. The search revealed three cell phones, a cut straw, and $648 in cash.
The defendants moved to suppress the evidence, contending that the stop was unsupported by reasonable suspicion of criminal activity. The judge denied the motions.[4] Although the judge concluded that standing alone, the CI's tip lacked reliability -- because the CI was unknown to the detectives, did not "observe exactly what occurred during the visits," and "did not claim to have seen drugs being passed" -- the judge concluded that the subsequent police surveillance overcame those deficiencies. The judge also relied on the detectives' knowledge of past overdoses and drug arrests at the property, and the detectives' experience-based opinions that the visits were consistent with drug transactions.
Discussion.
The question before us is whether the stop was supported by reasonable suspicion -- more specifically, "whether the stop was based on an officer's reasonable suspicion that the person was committing, had committed, or was about to commit a crime" (citation omitted). Commonwealth v. Warren, 475 Mass. 530, 534 (2016).[5] "That suspicion must be grounded in 'specific, articulable facts and reasonable inferences [drawn] therefrom' rather than on a hunch" (citation omitted). Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). In our review, "we accept the judge's subsidiary findings of fact absent clear error" but "review independently the application of constitutional principles to the facts found" (citation omitted). Commonwealth v. Cordero, 477 Mass. 237, 241 (2017). See Commonwealth v. Buckley, 478 Mass. 861, 864 (2018).
Here, the facts the Commonwealth points to as establishing reasonable suspicion include: (1) the observations of the CI, including the car repeatedly visiting the property, a person exiting the car, meeting with someone in the yard, and returning to the car in less than one minute, as well as the CI's statement that he believed the visits were for drug transactions; (2) observations of the detectives of similar repeated and brief visits; (3) the detectives' knowledge of the property at issue -- specifically, overdoses that occurred at the property on unspecified dates and a drug arrest that occurred years prior; and (4) police testimony, based on their experience, that the observed conduct was consistent with drug transactions.
Our review is of the "totality of the facts on which the seizure is based." Commonwealth v. Meneus, 476 Mass. 231, 235 (2017). Before engaging in that analysis, a threshold question here is the extent to which it was permissible to rely on the CI's tip. In evaluating that question the case law focuses on the so-called "Aguilar-Spinelli" factors -- that is, what was known about the CI's "basis of knowledge" and "reliability." See Commonwealth v. Lyons, 409 Mass. 16, 19 (1990).
Importantly, when we address reasonable suspicion we can consider the CI's tip on "[a] less rigorous showing" than when we address probable cause. See Lyons, supra at 19. See also Commonwealth v. Upton, 394 Mass. 363, 375 (1985) (discussing Aguilar-Spinelli test). Moreover, "[i]ndependent police corroboration may make up for deficiencies in one or both of [the Aguilar-Spinelli] factors." Lyons, supra.
As noted, the judge here concluded that the CI's tip did not satisfy the Aguilar-Spinelli test, but nonetheless found that the detectives' observations overcame the tip's...
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