Opinion
15-P-1196 15-P-1197
08-08-2016
COMMONWEALTH v. BRIAN SANCHEZ (and four companion cases).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), 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 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 1:28
The Commonwealth appeals from orders entered by a judge of the Central Division of the Boston Municipal Court Department, allowing the motions to suppress evidence seized as a result of searches of codefendants Ricky Rotger and Brian Sanchez. We reverse.
Background. The dispositive issue in this case is whether the police had sufficient grounds to believe that the codefendants were joint venturers with Jose Rotger as he broke into a parked car and stole items from it while the codefendants stood by "looking around." The relevant evidence, as found by the motion judge, is as follows.
To distinguish between the two Rotgers, we refer to defendant Ricky Rotger as Rotger, and to Jose Rotger as Jose.
"Absent clear error, we accept and adopt the findings of the motion judge, but we 'independently determine the correctness of the judge's application of constitutional principles to the facts as found.'" Commonwealth v. Narcisse, 457 Mass. 1, 5 (2010), quoting from Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007).
On September 27, 2013, at 5:25 P.M., Sanchez, Rotger, and Jose were talking and walking together on Harrison Avenue in the South End section of Boston. Jose looked into a parked silver sedan. As he did, Sanchez and Rotger "were not looking into the car but were standing on the sidewalk nearby looking around." The three men then continued to walk down the sidewalk. Jose "began looking in the windows of another car which was green." Sanchez and Rotger "did not look into the car at all but were standing about three or four feet from Jose Rotger looking around." Jose quickly opened the front passenger door of the green car, reached inside, and closed the door, leaving it unlocked. The three men continued walking down Harrison Avenue together. A few blocks away from the green car they "seemed to be handing 'something' back and forth." Boston police officers who observed the above described activity "ran the license plate of the green car and learned that it was registered to a female in Lowell."
About ten minutes later, the three men entered the Massachusetts Bay Transportation Authority's Tufts Medical Center station. Jose used a credit card to purchase a ticket as the defendants stood nearby talking. The three men then went up an escalator. Two police officers in plain clothes stopped them at the top and identified themselves as police officers. Jose tried to shove the credit card into the back of his pants, but Sergeant Keenan, coming up the escalator behind the men, grabbed Jose's arm. Jose was holding three cards, including a bank debit card, in the name of the owner of the green car. The officers then placed all three men under arrest and searched them. Sanchez and Rotger both possessed items belonging to the owner of the green car; Rotger also possessed a small quantity of cocaine.
Discussion. We begin by observing that the issue in this case is properly framed as whether the police had probable cause to arrest Sanchez and Rotger, and search them incident to the arrest. The initial, momentary detention of the codefendants at the top of the escalator might be considered an investigatory stop justifiable by reasonable suspicion that a crime had been committed. See Commonwealth v. Watson, 430 Mass. 725, 729 (2000). But "to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous." Commonwealth v. Narcisse, 457 Mass. 1, 7 (2010), quoting from Arizona v. Johnson, 129 S. Ct. 781, 784 (2009). Because the Commonwealth produced no evidence that the police feared for their safety or suspected that the three men were armed or posed any danger, the police lacked sufficient justification to frisk the men on that basis. Therefore, the arrest and subsequent search of the codefendants must be supported by probable cause. See Commonwealth v. Clermy, 421 Mass. 325, 330-331 (1995); Commonwealth v. Mendes, 46 Mass. App. Ct. 581, 589-590 (1999). On the facts of this case, the Commonwealth must demonstrate that the police officers had probable cause to believe that Sanchez and Rotger were joint venturers with Jose in breaking into and entering the green car. We conclude that probable cause was present on the facts found by the motion judge and that the allowance of the motions to suppress was erroneous.
As an initial matter, the police had probable cause to arrest Jose for breaking and entering into a vehicle in the daytime. Even before Keenan grabbed Jose's hand and confirmed that Jose possessed items taken from the green car, the officers had observed Jose peer into a silver car, walk down the street, and then peer into the green car. The officers further observed Jose open the door of the second car, lean in, close the door, and walk away. The officers then confirmed that the car belonged to a woman from Lowell. Based on those facts, the officers were warranted in concluding that Jose broke into a vehicle belonging to another person with the intent to commit a crime. See Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting from Brinegar v. United States, 338 U.S. 160, 175 (1949) ("In dealing with probable cause . . . we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act"). The seizure of the credit card from Jose's hand, after he tried to conceal it, further confirmed the obvious.
The question becomes whether the codefendants were merely present while Jose committed this crime or were joint venturers with him. To establish probable cause that the codefendants participated as joint venturers with Jose, the Commonwealth must show that they "knowingly participated in the commission of the crime charged . . . with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). Joint venture liability can be imposed "when the conduct 'take[s] the form of agreeing to stand by at, or near, the scene of the crime to act as a lookout, or to provide aid or assistance in committing the crime, or in escaping, if such help becomes necessary.'" Commonwealth v. Simpkins, 470 Mass. 458, 462 (2015), quoting from Zanetti, supra at 470 (Appendix). "One's presence at the scene of a crime normally indicates an ability to render 'aid and encouragement, as a lookout to give warning, . . . or as an ally in making escape or in meeting any eventuality.'" Commonwealth v. Drew, 4 Mass. App. Ct. 30, 31 (1976), quoting from Commonwealth v. Conroy, 333 Mass. 751, 755 (1956). However, "[p]resence alone does not establish a defendant's knowing participation in the crime, even if a person knew about the intended crime in advance and took no steps to prevent it." Zanetti, supra. The Commonwealth "cannot rely on evidence that merely places the defendant at the scene of the crime and shows him to be in association with the principals. Rather, the Commonwealth must present additional evidence which implicates the defendant in the crime." Commonwealth v. Saez, 21 Mass. App. Ct. 408, 411 (1986).
Both defendants rely heavily on Saez, in which this court held that evidence that the defendant "looked up and down" the street on two occasions was insufficient to sustain his conviction as a joint venturer. Id. at 411. Observing that the case was "a close one," we held that the defendant's "commonplace actions of looking up and down a street, which, alone, are ambiguous and inconclusive in nature," were insufficient to prove his guilt beyond a reasonable doubt. Id. at 412-413.
Saez does not govern the present case. Significantly, Saez concerned the sufficiency of the evidence to prove the defendant guilty beyond a reasonable doubt. The current case involves the probable cause standard, which "is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding." Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). See Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013). In Saez, supra at 412, the defendant looked up and down the street only once on each occasion. Here, the defendants were "looking around" as Jose perused the cars on the street, appearing to select a target. In Saez, "[t]here was no evidence of any communication between the defendant and [the principal] after they separated." Ibid. Here, after Jose took items from the second car, the codefendants did not distance themselves from Jose, but rather were seen talking with him and handing "something" back and forth. Even without seeing what the men were passing around, see Commonwealth v. Kennedy, 426 Mass. 703, 710 (1998), the totality of the circumstances that began when Jose looked into the first car gave the officers probable cause to reasonably conclude that a crime had been committed and that Sanchez and Rotger were not merely present, but knowingly participated with Jose.
The evidence of the codefendants' complicity here is stronger than that in Commonwealth v. McKay, 50 Mass. App. Ct. 604 (2000), which held that the evidence was insufficient for a conviction. See id. at 606-607 (no evidence that defendant had knowledge of principal's intent where defendant stood behind tree line in the woods, positioned to see anyone who approached the target residence). The evidence here is comparable to that in Mendes, which held that the evidence was sufficient. See Mendes, 46 Mass. App. Ct. at 588-589 (defendant accompanied known drug dealers to ninth floor of hotel and remained there pacing the corridor for several minutes before proceeding to the second floor). See also Commonwealth v. Pope, 15 Mass. App. Ct. 505, 509-511 (1983) (evidence sufficient to convict defendant as joint venturer, where defendant stood on sidewalk, next to open passenger door of car from which principal retrieved his identification, and faced away from house that principal was breaking into from the back); Commonwealth v. Ward, 45 Mass. App. Ct. 901, 901-903 (1998) (evidence sufficient to convict defendant as joint venturer, where defendant stood behind principal in the road, looking up and down the street, peered into buyers' car, and nodded to principal, while principal conducted drug transaction).
Orders allowing motions to suppress reversed.
By the Court (Cohen, Milkey & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: August 8, 2016.