Opinion
INDICTMENT Nos. 06-2171.
August 9, 2007.
FINDINGS OF FACT, MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
INTRODUCTION
The defendant, Melvin Harrison (Harrison), moves to suppress plastic bags variously containing powder and crack cocaine found in his pocket by officers of the Lynn Police Department. The court conducted an evidentiary hearing on July 30, 2007 at which Lynn Police Officers Giovanni Ruano (Ruano) and Paul Holey (Holey) testified.
Finding that the totality of police observations provided the officers with at least reasonable suspicion to stop Harrison despite Ruano's failure to actually witness a supposed drug transaction, and finding that Harrison was not in custody for purposes of Miranda warnings, the court denies Harrison's motion to suppress.
FINDINGS OF FACT
Based on the evidence presented and reasonable inferences drawn from that evidence, the court finds the following facts:
1. On November 29, 2006, Ruano and Holey were experienced drug investigators.
2. On that date, the area of Union and School Streets in Lynn was a high drug and violent crime area.
3. Just before 4:30 P.M., Ruano who was in plainclothes and an unmarked car was patrolling this area and other high drug crime areas.
4. Ruano and Holey had each participated in multiple drug arrests in this area.
5. Ruano saw Glenn Langlois (Langlois) standing in front of a dollar store. Ruano, who had arrested Langlois five to ten years before for drug possession and recognized him from having seen him many times on the street, watched as Langlois scanned up and down the street, looking from side to side and appearing very nervous. When a marked police car passed, Langlois turned in the other direction as if to avoid eye contact.
6. Based on the earlier arrest, Ruano knew Langlois to be a drug user.
7. After four or five minutes of similar behavior, Langlois went to a distinctive maroon and silver car parked on School Street, looked to the front and back and inserted the upper half of his body in the car window. There was a black male in the passenger seat. After four or five seconds, Langlois retreated from the car.
8. As Langlois quickly walked away, Ruano saw that he had his right hand clenched as if he was holding something. Ruano had trouble following him because of traffic and because he had to reverse direction. As Ruano reversed direction, Langlois walked faster.
9. Ruano radioed Holey, who was on uniformed patrol, on his Nextel phone to tell him that he thought he had seen a drug transaction and to give him a description of the car and its location.
10. Ruano's last sight of Langlois was of him running away from him across a parking lot.
11. Two weeks earlier police received a tip from an informant, whose identity they knew, who said that the same maroon and silver car was involved in a shooting. Holey and another officer had stopped and searched the car containing two black males, neither of which was Harrison, but did not find any guns.
12. When he received the call on his Nextel phone Holey was nearby and quickly drove to the now empty car, which he recognized from the earlier stop. Ruano returned and ran the plate and found that it was registered to an address across the street.
13. While the officers were deciding what to do, Harrison walked up and got in the car.
14. When Holey saw Harrison get in, he activated his blue lights, pulled in behind the car, got out and walked up to the driver's side and asked Harrison to get out.
15. Holey started a pat-frisk and found hard objects on Harrison's right side, took them out, and saw that they were prescription bottles in Harrison's name.
16. Holey asked Harrison if he had any weapons or other drugs on him. He did not advise him of his Miranda rights at any time.
17. Harrison said he had drugs on him.
18. Holey reached down and felt an obvious lump, a package larger than a flattened golf ball in Harrison's pocket, which he thought was consistent with the feel of illegal drugs. He removed it and found that it consisted of several plastic bags containing various amounts of drugs including powder and crack cocaine.
19. The totality of Ruano's observations of Langlois' quick contact with Harrison fit a pattern followed by street-level drug sellers operating out of cars in Lynn at the time of the observations and represented a classic drug transaction.
20. The court does not credit the testimony of Glenn Langlois.
21. It is inevitable that police would have discovered the larger than a golf ball sized package given their legitimate concerns for their safety in the high violent crime area, whether or not Harrison said he had drugs on him.
22. If Harrison had made no statement, police would have, at a minimum, patted him down and discovered the packages.
23. Discovery of the drug packages was certain as a practical matter.
LEGAL DISCUSSION
I. The Stop
A police officer may stop a vehicle in order to conduct a threshold inquiry if that officer has reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime. Commonwealth v. Wren, 391 Mass. 705, 707 (1984). Reasonable suspicion must be "based on specific, articulable facts and reasonable inferences drawn therefrom." Commonwealth v. Lyons, 409 Mass. 16, 19 (1990). The standard is an objective one. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). The facts known to the officers at the moment of the stop must have warranted a person of reasonable caution in the belief that the action taken was appropriate. Id. "Reasonable suspicion cannot be based on a hunch or on good faith, but . . . seemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry." Commonwealth v. Watson, 430 Mass. 725, 729 (2000).
Harrison argues that the officers lacked reasonable suspicion to conduct an investigative stop. In particular, he argues that Ruano's failure to actually witness an exchange inside the vehicle requires a finding that the officers lacked reasonable suspicion to believe that a drug transaction had just occurred.
Contrary to Harrison's contention, an officer's failure to see an object exchanged in circumstances such as these does not necessarily require a finding that the officers lacked sufficient grounds to stop the defendant. See Commonwealth v. Kennedy, 426 Mass. 703, 710 (1998). Although "[t]his gap in evidence . . . undoubtedly weakens the case [ ] for probable cause," it does not preclude such a finding. Id. Therefore, this "missing evidence" is certainly not fatal to a finding of reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 20-21 (reasonable suspicion is less exacting standard than probable cause). Otherwise, law enforcement would be "critically handicap[ped]" in their duties to stop the flow of illegal drugs because small quantities of drugs, by their nature, are easily concealed and can move quickly in hand-to-hand exchanges. Kennedy, 426 Mass. at 711. Although Ruano did not witness an item being exchanged, the court must look at the entire "silent movie" to determine if the facts known to the officers at that time were sufficient to stop and frisk Harrison. Id. at 708.
In Commonwealth v. Hernandez, 448 Mass. 711 (2007), two plain-clothed Boston police officers were conducting surveillance in an area known to have a high incidence of drug trafficking and where one of the officers had made numerous recent arrests. The officers witnessed the defendant acting suspiciously and saw him hand an item, which the officer could not identify, to another individual. The officer testified that the witnessed activity was consistent with a typical drug transaction in that neighborhood. When the officers identified themselves, the defendant took off running. The defendant was stopped and a search revealed a large amount of heroin. The Supreme Judicial Court held that the motion judge appropriately denied the defendant's motion to suppress, finding that the otherwise innocent acts, when taken together, sufficiently supported the officers' belief that a criminal act had just occurred. Id. at 714-715.
There are many similarities between this case and Hernandez. The officers here were patrolling a locale known to be a high drug and violent crime area. Ruano and Holey each were experienced officers who had made numerous drug-related arrests in the area. Ruano witnessed Langlois scan the street in a nervous fashion and avoid eye contact with an officer in a marked police cruiser. Ruano witnessed Langlois engage in behavior with the occupant of the vehicle that he knew to be consistent with local drug transactions. Although Ruano did not see the exchange of an actual item, he did see Langlois running away holding an object concealed in his right hand. That a drug transaction had just occurred is a reasonable inference which the officers were entitled to draw. See Id. (officer justified in believing drug transaction occurred despite not seeing item exchanged); Kennedy, 426 Mass. at 707 (officer justified in believing he just witnessed drug transaction despite not actually seeing individuals exchange any item).
In addition to the factors supporting the arrest in Hernandez, the officers here also knew that Langlois had been previously arrested on drug-related charges. See Kennedy, 426 Mass. at 709 (officer's knowledge that a main participant in a supposed drug transaction was previously arrested on drug charges strengthens grounds for suspicion). While his association with the occupant of the vehicle is insufficient by itself to form a reasonable suspicion regarding that individual, the association coupled with Langlois' suspicious behavior and the interaction in the vehicle also supported the officers' suspicion. See Id. at 710 (officer's knowledge of drug use by the individual interacting with defendant is supporting factor).
The appropriate resolution of Harrison's motion is guided by bothHernandez and Kennedy. As in those cases, the arresting officers witnessed a known drug user acting nervously in a high drug crime area. The officers witnessed what appeared to be a drug transaction in a manner consistent with typical drug transactions in that neighborhood. That Ruano did not actually see an item exchanged does not require a finding that probable cause did not exist, let alone a lack of reasonable suspicion. Given the suspicious circumstances and that Ruano saw Langlois run away from him with an object concealed in his hand immediately following the quick interaction inside the car, the officers had reasonable suspicion to believe they had just witnessed a drug transaction. Because Ruano immediately radioed a sufficient description of the vehicle to Holey and Holey recognized the distinctive vehicle from a previous encounter, the officers had at least a reasonable suspicion that Harrison, who they saw driving the vehicle, had just engaged in that drug transaction with Langlois. As a result, the stop and frisk of Harrison was justified. See Kennedy, 426 Mass. at 711.
II. Miranda Requirements
Harrison argues that the drugs found on him must be suppressed because they were obtained as a result of an incriminating response made before his receipt of Miranda warnings.
Miranda warnings are only necessary where an individual is subject to "custodial interrogation." Commonwealth v. Morse, 427 Mass. 117, 122 (1998). "`Custodial interrogation' is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."Id. Thus, for purposes of the present motion, the question is whether Harrison was in custody.
The determination of "custody" depends primarily on the objective circumstances of the interrogation rather than the subjective views of either the arresting officers or the defendant. Commonwealth v. Sneed, 440 Mass. 216, 220 (2003). The critical question is "whether, considering all the circumstances, a reasonable person in the defendant's position would have believed he was in custody." Id. Four factors to consider in the custody analysis are: (1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) whether the questioning was aggressive or informal; and (4) whether, at the time the incriminating statement was made, the suspect was free to end the questioning by leaving the place of interrogation or whether the interview terminated with the defendant's arrest. Id. Weighing these four factors, the court is to determine that a defendant was in custody if his freedom was curtailed to a degree associated with formal arrest. Commonwealth v.Haskell, 438 Mass. 790, 795 (2003). No single factor is conclusive.Sneed, 440 Mass. at 220.
An investigative stop, although not rising to the level of a formal arrest, may constitute "custody" for Miranda purposes. See Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 827 (1999). In Gordon, the Appeals Court found that the defendant was subjected to a custodial interrogation prior to his arrest when the officer posed a question to him after he was handcuffed and placed in the back of a police cruiser. Id. Likewise, inHaskell, the Supreme Judicial Court "assumed" that the defendant was in custody when two officers pulled over his vehicle and approached him with their guns drawn. 438 Mass. at 797. However, "[n]ot every Terry-type investigative stop results in a custodial interrogation." Commonwealth v. Depeiza, 449 Mass. 367, 375 (2007). In Depeiza, officers stopped an individual whose odd gait suggested to the officers that he was concealing a firearm underneath his jacket. After announcing their intention to conduct a frisk, the officers asked the defendant if he was carrying a firearm. Noting that the officers did not imply that they suspected him of carrying a gun, that the scene was not "police-dominated," and that the tone of the officers was conversational and not aggressive, the Supreme Judicial Court affirmed the trial court's finding that the defendant was not in custody for purposes of Miranda.Id. at 376.
The objective factors present in Harrison's brief detention are more similar to the facts in Depeiza than either Gordon or Haskell. UnlikeGordon and Haskell, the officers did not approach Harrison in a menacing, aggressive manner. There is no evidence that Ruano or Holey had their guns drawn. Harrison remained on the street during the frisk and was not handcuffed. Also, the officers did not tell Harrison that they suspected that he had just sold drugs. Finally, the nature of the question asked by the officers was informal, much like the question posed to the defendant in Depeiza. In short, Harrison's detention did not approach the circumstances typically associated with a formal arrest. Any incriminating statements or evidence obtained as a result of the officers' conduct need not be suppressed.
Even if Harrison were in custody at the time of the officers' question, the multitude of confiscated drugs would inevitably have been discovered by the arresting officers. See Commonwealth v. O'Connor, 406 Mass. 112, 113-114 (1989) (adopting inevitable discovery exception to the exclusionary rule). In Commonwealth v. Lites, 67 Mass. App. Ct. 815 (2006), the defendant was a passenger in a stopped vehicle. Upon smelling burnt marijuana and observing suspicious movements, the defendant was handcuffed. Without reading him his Miranda rights, and without first having pat-frisked him, the officers asked the defendant if he had any guns or drugs on him. The defendant admitted that he had marijuana. The trial judge, although recognizing that the defendant's statement was elicited in violation of Miranda, denied his motion to suppress the physical evidence holding that the initial arrest was based on probable cause and that the subsequent inventory search at the police station would have inevitably led to the discovery of the marijuana. The Supreme Judicial Court affirmed the denial of the suppression motion. Id. at 821.
Here, the officers were already engaged in a pat-frisk when they asked Harrison whether he had any guns or drugs on him. This is not a case where the defendant's response caused them to frisk him again after initially determining that he possessed no contraband; rather, it was a continuation of a frisk already in progress. There were a large quantity of various drugs packaged in a manner that felt like illegal drugs. Harrison's response did not inform the officers exactly where the drugs were located on his person. The fact that the arresting officer was able to pinpoint the location of these drugs immediately following the defendant's response supports the fact that they would have inevitably been found by the officer during his continued frisk without the assistance of the defendant's statements. The Commonwealth has established by a preponderance of the evidence that "the discovery by lawful means was certain as a practical matter." Id.
The constitutional violation here, if any, was not egregious — the failure to appreciate that the uncertain line between non-custodial and custodial, for the purposes of Miranda, had been crossed and a failure to give Miranda warnings. Commonwealth v. McAfee, 63 Mass. App. Ct. 467, 481 (2005) (defendant's statement resulting from unlawful in-home arrest not egregious where caselaw "seemingly" approved of arrest).
Police had reasonable suspicion to stop Harrison and there were no constitutional violations warranting the suppression of any evidence.
ORDER
The defendant Melvin Harrison's motion to suppress the plastic bags containing powder and crack cocaine found in his pocket is DENIED .