Commonwealth v. Castillo-Martinez

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23-P-358 Appeals Court

COMMONWEALTH vs. KEVER CASTILLO-MARTINEZ.

No. 23-P-358.

Essex. November 2, 2023. – April 2, 2024.

Present: Sacks, Brennan, & D'Angelo, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress,
Interlocutory appeal. Search and Seizure, Reasonable
suspicion. Constitutional Law, Reasonable suspicion.

Complaint received and sworn to in the Salem Division of
the District Court Department on June 3, 2021.

A pretrial motion to suppress evidence was heard by Sarah
M. Joss, J.

An application for leave to prosecute an interlocutory
appeal was allowed by Elspeth B. Cypher, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.

Kathryn Leary Janssen, Assistant District Attorney, for the
Commonwealth.
Mark W. Barry for the defendant.

BRENNAN, J. After seeing what he believed was an illegal

drug transaction, a Danvers police detective stopped the
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defendant. During the brief exchange that followed, the

defendant surrendered a bag containing fifty vials of

tetrahydrocannabinol (THC) and acknowledged "[doing] something

wrong" to make extra money. The defendant moved to suppress the

THC vials and his statements on the ground that police did not

have reasonable suspicion to stop him. After an evidentiary

hearing, a District Court judge determined that police did not

have reasonable suspicion that what the detective witnessed was

a drug transaction and suppressed the evidence. The

Commonwealth sought leave to pursue an interlocutory appeal from

the judge's orders. A single justice of the Supreme Judicial

Court granted leave for an appeal to this court. See G. L.

c. 278, § 28E; Mass. R. Crim. P. 15 (a) (2), as amended, 476

Mass. 1501 (2017). Concluding that the detective had a

reasonable and articulable suspicion that the defendant was

involved in a drug transaction prior to stopping the defendant,

we reverse. See Commonwealth v. Edwards, 476 Mass. 341, 350

(2017).

Background. We summarize the facts as found by the motion

judge, supplemented with uncontroverted testimony of the witness

that was implicitly credited by the judge. See Commonwealth v.

Matta, 483 Mass. 357, 358 (2019); Commonwealth v. Oliveira, 474

Mass. 10, 11 (2016).
3

On May 3, 2021, at approximately 2:45 P.M., a Danvers

police detective, in plain clothes and an unmarked car, began

surveillance of the Liberty Tree Mall parking lot. Over his

twenty-three years as a police officer, the detective had

witnessed hundreds of illegal drug transactions in the lot. He

had extensive training and experience in narcotics cases,

including eight years on a Drug Enforcement Agency taskforce,

and had participated in hundreds of investigations relating to

drug activity. In addition to the hundreds of drug transactions

he had observed, the detective had seen numerous "legitimate"

exchanges in that parking lot. In the legitimate exchanges,

including Craigslist or eBay purchases, the detective generally

saw people get out of their vehicles, greet one another, and

exchange items. On fewer than five occasions, the detective

stopped people who exchanged items in the parking lot only to

determine that the transactions were legitimate.

While surveilling the parking lot, the detective saw a

black Mercedes pull into a parking space. Using binoculars, he

observed the driver looking at his lap, looking around, and

moving his arms. By cross-referencing the vehicle's

registration, the licensed drivers at the registered address in

Gloucester, and the photographs on those drivers' licenses in

the Registry of Motor Vehicles database, the detective was able

to identify the driver as Theodore Combs.
4

The detective then called a Gloucester detective, whom he

had known as a police officer for approximately twenty years.

The Gloucester detective told him that Combs was known to sell

THC products in the Gloucester area. During the ten-minute

period that the detective watched the Mercedes, Combs did not

exit the vehicle.

After a short time, a Subaru parked a couple of spaces away

from the Mercedes. The defendant exited the Subaru and got into

the passenger seat of the Mercedes. He had nothing in his hands

when he exited the Subaru. The detective then saw the defendant

and Combs with their heads down, moving their arms, and leaning

in toward one another. After only a few minutes, the defendant

exited the Mercedes holding a plastic bag.

Based on his training and experience in conjunction with

the information he received about Combs from the Gloucester

detective, the detective believed that the interaction between

Combs and the defendant was a drug transaction. He called for a

marked police cruiser to stop Combs's Mercedes. The detective

then activated the lights on his vehicle and pulled alongside

the defendant's Subaru. He approached the Subaru and explained

to the defendant, who remained in the car, what he had observed.

The defendant responded that he did something wrong and was

trying to make some extra money. The defendant then handed the

plastic bag to the detective. The bag contained five boxes,
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each containing ten vials of liquid THC. The defendant

identified the person in the Mercedes as his friend "Theo" and

showed the detective Theo's contact number on his cell phone.

Discussion. "In reviewing a ruling on a motion to suppress

evidence, we accept the judge's subsidiary findings of fact

absent clear error" (citation omitted). Commonwealth v.

Daveiga, 489 Mass. 342, 346 (2022). "We review independently

the application of constitutional principles to the facts found"

(citation omitted). Id. The Commonwealth does not dispute that

the defendant was seized when the detective activated his

cruiser lights to signal the Subaru to stop. The challenge in

this case is solely to the motion judge's conclusion that the

stop lacked legal justification.

"Where a police officer has a reasonable, articulable

suspicion that a person has committed, is committing, or is

about to commit a crime, the officer may stop that person to

conduct a threshold inquiry." Commonwealth v. Bostock, 450

Mass. 616, 619 (2008), citing Terry v. Ohio, 392 U.S. 1, 21-22

(1968). "That suspicion must be grounded in specific,

articulable facts and reasonable inferences [drawn] therefrom

rather than on a hunch" (quotations and citations omitted).

Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). When the

basis for reasonable suspicion is a perceived drug transaction,

"[i]t is not necessary . . . that the police officer observe an
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exchange of items or actually see drugs or cash, but it is

necessary that the observations by the police occur in a factual

context that points to criminal activity." Commonwealth v.

Kearse, 97 Mass. App. Ct. 297, 302 (2020). See Commonwealth v.

Stewart, 469 Mass. 257, 260-261 (2014).

"[I]n Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992),

the Supreme Judicial Court set forth a nonexclusive list of

factors that, when taken together, support a ruling that there

was probable cause to search a person in the context of a

suspected street-level drug transaction" (citation omitted).

Commonwealth v. Santa Maria, 97 Mass. App. Ct. 490, 494 (2020).

Those factors are "(1) the observation of an unusual

transaction; (2) furtive actions by the participants; (3) the

event occurs in a location where the police know drug

transactions are common; and (4) an experienced officer on the

scene regards the event as consistent with a street-level drug

transaction." Id., quoting Commonwealth v. Sanders, 90 Mass.

App. Ct. 660, 661 n.1 (2016). Where, as here, the standard is

reasonable suspicion for an investigative stop, the proof of

wrongdoing required is "obviously less than is necessary for

probable cause." Kansas v. Glover, 140 S. Ct. 1183, 1187

(2020), quoting Navarette v. California, 572 U.S. 393, 397

(2014).
7

All the Santaliz factors were present here. The detective

saw the defendant enter the Mercedes with nothing in his hands.

After the defendant and Combs put their heads down, leaned

toward each other, and moved their arms, the defendant got out

of the vehicle carrying a bag. Although the detective did not

actually see an exchange, he reasonably concluded that the

defendant received the bag from Combs. See Stewart, 469 Mass.

at 261 (police had reasonable suspicion where officer saw four

people huddled together but did not see actual exchange). Prior

to that quick interaction, the detective saw Combs "park his

vehicle, . . . move his arms around, and look around the area."

He also noted that Combs sat in his car for approximately ten

minutes without getting out before the defendant arrived. Taken

together, Combs's and the defendant's behavior reasonably could

have been interpreted by the detective as furtive conduct

designed to hide the nature of their transaction. See

Commonwealth v. Kennedy, 426 Mass. 703, 707 (1998); Santa Maria,

97 Mass. App. Ct. at 495. The detective further observed the

defendant and Combs in an area he personally knew to be the

location of hundreds of illicit drug transactions. See Kennedy,

supra at 708; Santa Maria, supra. Finally, the detective, who

was an experienced officer, testified that he believed what he
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had witnessed was a drug transaction.1 See Kennedy, supra; Santa

Maria, supra at 494.

In addition, the detective knew that Combs had a reputation

with the Gloucester police as a THC dealer. See Kennedy, 426

Mass. at 709. The motion judge discounted this as a factor

because there was no evidence of "specific stops, seizures,

arrests, or convictions." However, this was not a case in which

the information that Combs was a drug dealer came from an

anonymous tipster or unnamed confidential informant, whose

veracity must be established before the information can be

considered. Contrast Commonwealth v. Mejia, 411 Mass. 108, 110-

114 (1991). We are unaware of any precedent requiring such

knowledge before an officer may use particularized information

about a specific individual obtained from another police officer

as a factor in developing a reasonable suspicion. To the

contrary, Kennedy, supra at 709-710, frequently has been cited

for the proposition that "reputation in the community as a drug

dealer [is] another factor that can contribute to probable

1 We are not persuaded by the defendant's argument that the
detective's observations of legitimate transactions in the
parking lot materially detracts from the quantum of suspicion.
As the detective described them, those exchanges had distinctly
different characteristics, particularly in that they were
conducted in the open. Moreover, alternative explanations for
activities observed by police do not "negate the proposition
that the described activity is, in the opinion of experienced
drug investigators, consistent with drug selling." Commonwealth
v. O'Day, 440 Mass. 296, 302 n.6 (2003).
9

cause." Santa Maria, 97 Mass. App. Ct. at 495. See Sanders, 90

Mass. App. Ct. at 661 n.2. See also Commonwealth v. Long, 482

Mass. 804, 814 (2019), quoting Kennedy, supra at 709 ("We have

often recognized that a police officer's knowledge of the

reputation for . . . drug dealing of persons interacting with a

defendant . . . is a factor to support probable cause to arrest

the defendant"); Commonwealth v. Levy, 459 Mass. 1010, 1012

(2011) (same). We think it a commonsense proposition that an

experienced police officer is not merely repeating local gossip

or base rumor when passing specific information about a person's

reputation for criminal behavior to another officer. The

Danvers detective thus reasonably could have relied on the

information from the Gloucester detective as a factor, albeit

not as weighty as his own observations and experience,

supporting his reasonable suspicion that the defendant and Combs

had engaged in a drug transaction.

In sum, based on the evidence found by the judge at the

motion hearing, we conclude that there were ample specific and

articulable facts to support a reasonable suspicion that the

defendant had participated in an illegal drug transaction prior

to the detective stopping him.2

2 The defendant has requested his costs and reasonable
attorney's fees pursuant to Mass. R. Crim. P. 15 (d), as
amended, 476 Mass. 1501 (2017), and has indicated that he
anticipates additional fees above those reflected in counsel's
10

Order allowing motion to
suppress reversed.

accompanying affidavit. Although he is entitled to reasonable
attorney's fees and costs, we decline to order them piecemeal.
"The application setting forth the specific amount of fees and
costs and supporting documentation should be filed [in this
court] within thirty days of the issuance of the rescript."
Commonwealth v. Santos, 99 Mass. App. Ct. 360, 365 (2021). "The
Commonwealth shall be afforded thirty days to respond to the
defendant's request, and the court will then enter an
appropriate order." Commonwealth v. Ennis, 441 Mass. 718, 721
n.3 (2004).