Commonwealth v. Sweezey

• Decision Date: 12 January 2000
• Docket Number: P-173
• Citation: 50 Mass. App. Ct. 48,735 N.E.2d 385
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH, vs. JOHN H. SWEEZEY No.: 95- Argued:
• Court: Appeals Court of Massachusetts

Page 385

735 N.E.2d 385 (Mass.App.Ct. 2000)

COMMONWEALTH, vs. JOHN H. SWEEZEY

No.: 95-P-173

Massachusetts Court of Appeals, Suffolk

Argued: January 12, 2000.

Decided: September 8, 2000

Francis T. O'Brien, Jr., for the defendant.

Present: Jacobs, Gillerman, & Beck, JJ.

JACOBS, J.

Following the denial of his motion to suppress, the defendant was convicted by a Superior Court jury of trafficking in over 200 grams of cocaine.¹ We affirm his conviction, addressing the four issues raised.

1. Denial of motion to suppress. The defendant argues that the police were without probable cause to arrest him or to search for the cocaine, and that the judge erroneously denied his motion to suppress the cocaine and certain statements he made at the time of his arrest.

We summarize the facts from the judge's supported findings,² which we supplement with uncontested testimony. See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992). Three officers of the Boston police drug control unit, in plain clothes and in an unmarked car, were conducting a surveillance in a restaurant parking lot at approximately 8:00 P.M. on October 4, 1991. The location was known to them as one where drug transactions frequently took place.³ Shortly after they observed a man, later identified as the defendant, sitting in a parked Cadillac automobile, a Monte Carlo automobile with two people in the front seat drove into the parking lot and signaled the Cadillac by flashing its lights. The Monte Carlo left the parking lot and the Cadillac immediately followed.

The two cars stopped after traveling a short distance. The officers saw the defendant leave his car, walk to the Monte Carlo, lean in the driver's side window, and engage the driver in conversation. Soon, the defendant returned to his car carrying a paper bag and drove away. The police, believing they had witnessed a drug transaction,⁴ followed. When the defendant stopped in a line of cars at a red traffic signal, the officers stopped their vehicle behind the defendant's and approached his car on foot, one at the driver's side, one at the passenger's side, and the third toward the rear. They announced themselves as police. The defendant "tried to get away by pulling out of the line of traffic and in doing so he hit one of the officers with the Cadillac." An oncoming private vehicle blocked the defendant's car, preventing him from getting away. One of the officers removed the defendant from the car and told him he was under arrest for assault and battery on an officer. While the arresting officer was informing the defendant of his Miranda rights, another officer went directly to the passenger's side, opened the door, and made a quick search, then got out and asked the defendant, "Where is it?" The defendant responded, indicating a brown paper bag was on the front seat.⁵ The police retrieved the paper bag, which held a clear plastic bag containing a "large white rock substance," later determined to be 304.13 grams of eighty-three percent pure cocaine.

The judge decided alternatively (1) that no seizure occurred prior to the defendant's attempt to get away because the officers "merely approached his car while it was already stopped," and (2) in any event, that an investigative stop of the vehicle would have been valid because the officers had a reasonably articulable suspicion of criminality based on their observations of the defendant made before they attempted to approach him. The judge further concluded that the officers had probable cause to arrest for assault and battery when the defendant hit one of them with the Cadillac and that the search of the Cadillac was valid as a search incident to a lawful arrest.

The defendant argues that the judge erred in concluding that the search for drugs was incident to the arrest for assault and battery on the officer.⁶ He correctly claims that G. L. c. 276, § 1,⁷ which governs a search incident to an arrest, does not support the seizure of the cocaine as incident to his arrest for assault and battery because the cocaine was not an instrumentality of that crime and the entry into his vehicle, in the circumstances, cannot be justified as a search for weapons. See Commonwealth v. Madera, 402 Mass. 156, 159 (1988) ("Section 1 [of G. L. c. 276] requires the exclusion of evidence [not otherwise admissible] of an unrelated crime found during a search incident to a lawful arrest unless the search was conducted to gather evidence of the first crime or to look for weapons"). He also argues the police impermissibly stopped and arrested him.

There was no error, however, because probable cause to arrest and search the defendant for illegal drug possession existed independently of the probable cause to arrest him for assault and battery.⁸ See Commonwealth v. Sanchez, 403 Mass. 640, 646 n.4 (1988) (although the defendant was arrested for assault and battery, police testimony, if credited, would have supported findings to the effect that there was probable cause to arrest for possession of illegal drugs).

The scenario observed by the officers, filtered through the lens of their experience, amply supports the judge's alternate conclusion that the officers' partial encirclement of the Cadillac was a proper investigative stop and not an unlawful arrest as argued by the defendant. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Commonwealth v. Riggins, 366 Mass. 81, 86 (1974) (Terry principles are applicable to automobile stops). "A police officer may stop a vehicle in order to conduct a threshold inquiry if he has a reasonable suspicion that the occupants have committed, are committing, or are about to commit, a crime." Commonwealth v. Moses, 408 Mass. 136, 140 (1990), quoting from Commonwealth v. Wren, 391 Mass. 705, 707 (1984). Although the conclusory testimony of the officers to the effect that they had witnessed a drug transaction, see note 4, supra, may not have revealed their inferential processes sufficiently to establish probable cause to arrest, compare Commonwealth v. Kennedy, 426 Mass. 703, 705-706 (1998), the actions they observed -- the apparent signal to the defendant in an area known for high drug activity, combined with the defendant following the Monte Carlo, interacting with its occupants, and then returning to his car carrying a paper bag -- viewed in the light of common sense and the officers' experience, constitute specific, articulable facts supporting a reasonable suspicion of ongoing criminality. While this activity may have been consistent with innocent activity, the conclusion drawn by the officers was substantially more than a hunch. Id. at 705 n.2.

The defendant's abrupt attempt to evade the officers while they were approaching and after they identified themselves as police, properly may be viewed as elevating the officers' reasonable suspicion of drug activity to the level of probable cause justifying an arrest for possession of illegal drugs.⁹ See Commonwealth v. Va Meng Joe, 425 Mass. 99, 106 (1997) ("Since there is no doubt that the initial stop was justified, events subsequent to the lawful stop, coupled with the factors that supplied the police officers with ample reasonable suspicion to make the investigatory stop, provided the police officers with probable cause to arrest and search the defendant"); 2 LaFave, Search and Seizure § 3.6(e), at 324 (3d ed. 1996) ("[I]f there already exists a significant degree of suspicion concerning a particular person, the flight of that individual upon the approach of the police may be taken into account and may well elevate the pre-existing suspicion up to the requisite Fourth Amendment level of probable cause"). See also Commonwealth v. Ortiz, 376 Mass. 349, 354 & n.3 (1978).¹⁰

The existence of probable cause to arrest the defendant for possession of drugs entitled the officers to conduct a search for drugs notwithstanding that the stated ground for arrest was assault and battery. See Commonwealth v. Lawton, 348 Mass. 129, 133 (1964) ("If the facts known to the officer reasonably permitted a conclusion that probable cause existed for a [drug charge], the arrest should be treated as legal even though he at first assigned another ground"). See also Commonwealth v. Peters, 48 Mass. App. Ct. 15, 21-22 (1999). In these circumstances, G. L. c. 276, § 1, permits the search for contraband to extend to the area of the driver's seat,¹¹ i.e., the area in the car under the defendant's immediate control. See Commonwealth v. Brillante, 399 Mass. 152, 155 & n.6 (1987) (in similar circumstances, a search of a tote bag under the driver's seat was not prohibited by G. L. c. 276, § 1, because it was for "the purpose of seizing contraband which the [police] had probable cause to believe might be in the tote bag"); Commonwealth v. Mantinez, 44 Mass. App. Ct. 513, 517-518 (1998) ("Probable cause for an arrest, even if not acted upon by a formal arrest, brings with it the 'search incident to arrest' exception to the warrant requirement for a search").

Because the propriety of the search in issue is dependent upon whether there was probable cause to arrest the defendant for possession of drugs immediately after he attempted to evade the officers, there is no need to focus upon whether or when a seizure occurred beyond noting that the approach toward the defendant's vehicle by the officers did not constitute an arrest. The test is whether "[t]he degree of intrusiveness on a citizen's personal security, including considerations of time, space, and force, [is] proportional to the degree of suspicion that prompted the intrusion." Commonwealth v. Borges, 395 Mass. 788, 794 (1985). "The pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances." Commonwealth v. Moses, 408 Mass. at 141. Here, the stop of the defendant's vehicle occurred without police intervention and the officers, in plain clothes, merely approached the stopped vehicle and, without displaying weapons, yelled "police."...