Opinion
19-P-611
04-13-2020
COMMONWEALTH v. Gerard SIBLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of a judge of the Roxbury Division of the Boston Municipal Court Department allowing the defendant's motion to suppress evidence seized pursuant to a warrantless search. We discern no error, and affirm.
A single justice of the Supreme Judicial Court allowed the Commonwealth's motion to pursue an interlocutory appeal, pursuant to Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017).
The case is controlled in material respects by Commonwealth v. Clark, 65 Mass. App. Ct. 39 (2005). As observed by the defendant in his brief, "the passing of money for an undescribed item, without more," does not establish probable cause. Id. at 41 n.3. The Commonwealth's reliance on Commonwealth v. Kennedy, 426 Mass. 703 (1998), to suggest that the present case includes sufficient "plus" factors to supply probable cause is misplaced. In our view, Kennedy (and other like cases) may be distinguished from the present case in the same manner as it was in Clark, supra at 44-45:
In Clark, observations essentially similar to those in the present case were held inadequate to provide reasonable suspicion. The Commonwealth's suggestion that they furnish probable cause to arrest falls well short.
"Apart from the fact that the general area was known to be a high crime area, there is nothing in this record to suggest the officer had any specific information suggesting that a drug sale was likely to occur at this location. Compare Commonwealth v. Kennedy, 426 Mass. 703, 704 (1998) (officer had received numerous complaints about drug dealing at a particular intersection from neighbors and a store owner); Commonwealth v. Sweezey, 50 Mass. App. Ct. [48,] 49 [ (2000) ] (officers conducting a surveillance in a restaurant parking lot known to them as one where drug transactions frequently took place); Commonwealth v. Rosario, 54 Mass. App. Ct. 914, 914-915 (2002) (informant described with particularity the individual vehicle, the time of day, and location of drug transaction). Nor did the police know either of these men to be a drug dealer or user. Compare Commonwealth v. Kennedy, 426 Mass. at 704 (individual observed by the officer in a hand-to-hand exchange with the defendant was a known drug dealer); Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 286 (2003) (person observed passing cash to the defendant was recognized by police as a drug abuser). Cf. Commonwealth v. Albert, 51 Mass. App. Ct. 377, 378 (2001) (officers recognized a truck as having a prior connection to drug activity).
"Also, the officer did not suspect that criminal activity was afoot due to any furtive or unusual movements by the defendant or anyone else who interacted with him .... See Commonwealth v. Kennedy, 426 Mass. at 708-709 (‘the quickness of the interaction ... reasonably could be interpreted by the officer as suspicious conduct’); Commonwealth v. Torres, 433 Mass. 669, 674 (2001)."
In the present case, the officers saw an exchange of an "item" for "something." They knew neither the defendant nor the other person with whom he exchanged the item for something. The location, though described in general as an area in which drug activity occurred, was without "specific information suggesting that a drug sale was likely to occur" at the specific location observed by the officers. Clark, 65 Mass. App. Ct. at 44. Contrast Kennedy, 426 Mass. at 704-705 ; Commonwealth v. Santaliz, 413 Mass. 238, 239-240 (1992). The officers were without probable cause to arrest the defendant and, accordingly, the Commonwealth may not justify the warrantless search of the defendant on the basis of a valid search incident to arrest.
Order allowing motion to suppress affirmed.