COMMONWEALTH v. KAITLYN GUARDIONE (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 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).
COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-335
22-P-409

COMMONWEALTH

vs.

KAITLYN GUARDIONE (and a companion case1).

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

1 Commonwealth vs. Michael Higuera.
2 Although the defendants' cases were briefed separately, we
heard argument on them together and have paired them for
purposes of decision given the common facts and legal issues.
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.

2
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.

3 We summarize the facts as found by the motion judge and from
undisputed testimony at the hearing. Commonwealth v. Karen K.,
491 Mass. 165, 166 (2023).

3
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

4
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

4 Higuera also moved to suppress statements that he made to
Detective Gervasi. The judge allowed that portion of Higuera's
motion, and it is not before us on appeal.

5
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

5 Although the parties agree that the defendants were seized,
they disagree as to precisely when that seizure occurred.
Because the answer to that question does not impact our
analysis, we do not address it. It is enough to conclude, as
the motion judge found, that Guardione was seized no later than
"when the police asked for her license," and that Higuera was
seized, "at the latest, when . . . Gervasi asked him to open the
door to the" vehicle.

6
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).

7
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

deficiencies by corroborating the repetitive, brief, and

nonvisible nature of the visits. We agree that the detectives'

observations corroborated some of what the CI relayed. The

detectives saw a specific vehicle with a female driver and a

male passenger make two separate visits to the property, stop in

the same location for about thirty seconds, and shut off its

lights. They also saw, on one occasion, an occupant venture

briefly behind a fence. Those observations corroborated what

the CI relayed about repetitive visits, their brevity, and their

nonvisible nature. Those facts are properly considered in the

reasonable suspicion analysis. See Commonwealth v. Dasilva, 66

Mass. App. Ct. 556, 560 n.5 (2006) ("consider[ing] . . . tip for

what reliability it may have possessed").

8
The observations of the detectives did not, however,

corroborate the CI's expressed suspicion that the defendants

were engaged in drug sales. The CI provided no basis for

knowing that. The defendants went behind a fence. The CI did

not say that he saw drugs, or that he saw an exchange, or even

that he saw anything in the defendants' hands, either before or

after they went behind the fence. While the CI gave the name of

an occupant of the home that the defendants allegedly met with,

he did not provide a basis for knowing that either, and the

testimony of the detectives indicated that the fence would have

obstructed any view of a meeting. In short, the observations of

the CI and the detectives established a pattern of behavior --

brief entrances and exits to the yard that occurred periodically

-- including, by reasonable inference, that a passenger in the

car met with someone from the home. The observations

themselves, however, did not supply the basis of knowledge

necessary to tie those observations to drugs or other illegal

activity.

Indeed, there are notable parallels between this case and

Lyons. In Lyons, supra at 17, Massachusetts State Police

received an anonymous tip that two white males had recently

purchased narcotics in Chelsea and were headed to Maine in a

vehicle that the informant identified by make, model, and plate

number. A trooper located and stopped the vehicle soon

9
thereafter and found cocaine. Id. at 17-18. The Supreme

Judicial Court held that the necessary corroboration for the tip

was lacking, despite the trooper's validation of "the

description of the automobile, the direction in which it was

headed, and the race and gender of the occupants." Id. at 20.

The court reasoned that corroboration of those "obvious details"

did not "substitute for explicit information about the basis of

the [informant's] knowledge" that the defendants had purchased

drugs, where the details about the car and its occupants did not

evidence a "special familiarity with the defendants' affairs."

Id. at 20-21.

We turn then to whether the information that the detectives

corroborated, in conjunction with their own observations and

experiences, supplied the necessary reasonable suspicion that

what was observed was criminal activity. The motion judge

answered that question in the affirmative based on the vehicle's

"repeated visits to [the property] and its occupants' brief,

concealed interactions in the yard"; the detectives' knowledge

of past drug activity at the property; and the detectives'

"experienced opinion[s]" that these visits were "consistent with

drug transactions." On this record, we do not agree.

We begin with a caveat. As mentioned above, the analysis

must be based on the totality of the known facts, or put

differently, on the unique collection of facts of the individual

10
case. A decision limited to unique facts, however, gives little

guidance for evaluating the next case that comes along. See

generally Ornelas v. United States, 517 U.S. 690, 698 (1996).

Accordingly, in order to give guidance for the future, the case

law often (and understandably) examines the known facts in

isolation, and attempts to assign them a relative weight. See,

e.g., Commonwealth v. Kearse, 97 Mass. App. Ct. 297, 301-304

(2020). We employ that same approach herein, while recognizing

that in the end, the facts should not be treated in isolation,

but rather collectively. See Commonwealth v. Karen K., 491

Mass. 165, 175 (2023).

With that caveat in mind, we note first that the recurring

and brief nature of the visits here was not sufficient to

establish reasonable suspicion. Cf. Commonwealth v. St. George,

89 Mass. App. Ct. 764, 768 n.7 (2016) ("short trip" alone "not

dispositive of criminal activity"); Commonwealth v. Jones, 95

Mass. App. Ct. 641, 647 (2019) (no reasonable suspicion where

"officers knew that the defendant visited [area] frequently

[but] had nothing connecting him to" criminal activity). We

also do not agree that the observed actions amounted to

deliberate "concealment" by the defendants. While "concealment

can contribute to . . . reasonable suspicion," DePeiza, 449

Mass. at 373, the fact that activities are not in the open

(i.e., are behind a fence) does not create reasonable suspicion

11
that a crime is being committed where the activities are as

consistent with benign events as they are with concealment. See

Commonwealth v. Evans, 87 Mass. App. Ct. 687, 693 (2015). Here

the defendants' actions were no more suggestive of criminal

activity than of innocuous brief encounters, such as food

deliveries or visits from a family member or neighbor, and thus,

in our view, do not sufficiently add to the reasonable suspicion

analysis.6

Nor do we agree, on this record, that the detectives'

familiarity with a past drug arrest and overdoses at the

property tips the scale in favor of the Commonwealth. The

testimony on this front was imprecise and spare. It at best

established that two male residents had been arrested at the

property some thirty months earlier, and that an individual or

individuals had overdosed at the property at some time in the

past. Moreover, nothing connected the defendants' visits to

that past drug activity. There was not, for example, any

testimony implicating the defendants in the prior arrests or

overdoses, and no one testified that the defendants met with the

6 The brief nature of the visits is unusual enough to be
material, but without more the connection to criminal activity
is too tenuous. The police saw a vehicle turn its lights off
while parking, and an occupant briefly venture behind a fence in
the dark –- events that occur daily, and innocently, at
residential properties.

12
two occupants of the property who had been previously arrested.7

See Commonwealth v. Evelyn, 485 Mass. 691, 709 (2020) ("previous

crimes, without additional details," did not "demonstrate a

'direct connection' with the defendant or the [crime] at

issue"). It is also significant, in our view, that the only

testimony as to timing was that the arrests occurred some thirty

months earlier. More recent information might well have changed

the calculus. But the testimony was sufficiently dated that,

without more, it carries little weight as to what was going on

at the property at the time of the activities in question. See

Commonwealth v. Jones-Pannell, 472 Mass. 429, 435 (2015).

Finally, on this record the balance also is not tipped by

the detectives' testimony that, based on their training and

experience, the visits were consistent with drug sales. It is

of course true that reasonable suspicion is evaluated "in light

of the officer's experience," and the application of experience

to what an officer observed must be given serious consideration.

Commonwealth v. Pinto, 476 Mass. 361, 364 (2017). Here, the

detectives testified that the typical drug exchange is

7 The CI reported that the defendants' meetings were with one
Janice Bryant, who the judge found was an individual known to
the detectives as a drug user. That finding is unsupported by
the record and thus clearly erroneous. See Commonwealth v.
Hilton, 450 Mass. 173, 178 (2007). Neither detective who
testified at the suppression hearing claimed that Bryant was a
known drug user, testifying only that Bryant was a resident of
the property.

13
"consummated quickly" without the chance for observers to "see

the hand-to-hand transfer," and that the events at issue were

"consistent with a street-level transaction." But the

detectives did not sufficiently explain how, based upon their

limited observations, the events here were more suggestive of

drug sales than other types of brief visit to a residential

property. See Commonwealth v. Houle, 35 Mass. App. Ct. 474, 477

(1993).

Both parties have cited case law that they believe supports

their respective positions. For its part, the Commonwealth

points to Commonwealth v. Stewart, 469 Mass. 257, 261 (2014),

where the Supreme Judicial Court held that an officer "had

reasonable grounds to suspect that he had witnessed a drug

transaction" based on (1) his knowledge that the defendant had

previously been arrested for selling drugs to an undercover

officer, and (2) his observation of "three persons follow[ing]

the defendant down a . . . street often used by drug users, with

[a] woman counting currency . . ., and then all four huddl[ing]

briefly together in a doorway, before . . . dispers[ing]."

Stewart is distinguishable, however, because the detectives here

had no information connecting these defendants to drugs, and

neither the CI nor the detectives observed an interaction of any

type. This case is instead closer to Kearse, 97 Mass. App. Ct.

at 301-304. There, this court found reasonable suspicion of a

14
drug exchange to be lacking, even where "an experienced

investigator" observed a brief handshake "in a high crime area,"

because the handshake was a "normal social intercourse," and

nothing else about the circumstances -- such as items being

exchanged, money being counted, or prior knowledge of the

defendant -- "point[ed] to criminal activity." Id. at 301-302.

See also Commonwealth v. Barreto, 483 Mass. 716, 720-722 (2019).

In sum, we are not convinced that the stop here was

supported by reasonable suspicion of criminal activity. As

noted, however, reasonable suspicion is not a high bar, and an

officer's observations on the street will frequently be

sufficient to justify an investigatory stop. Indeed, Terry v.

Ohio itself involved an officer's observations on the street,

which led him to conclude that criminal activity was afoot, even

though the officer did not see a weapon or any overtly criminal

actions. See 392 U.S. at 22-23. The Supreme Court nevertheless

stated that the "series of acts" that the officer observed,

"each of them perhaps innocent in itself," "warranted further

investigation" when "taken together." Id. at 22. What makes

this case different from cases like Terry, in our view, is that

the acts actually observed were not only "innocent in

themselves" but commonplace -- to the point where a contrary

ruling would sanction officers to engage in substantial

"intrusion[s] upon . . . constitutionally protected interests,"

15
id. at 21, based on facts that do not distinguish the subject

from innocent citizens going about their daily lives.

Accordingly, the orders denying the motions to suppress physical

evidence are vacated, and the cases are remanded to the Superior

Court for further proceedings consistent with this memorandum

and order.

So ordered.

By the Court (Blake,
Englander & Walsh, JJ.8),

Clerk

Entered: May 5, 2023.

8 The panelists are listed in order of seniority.

16