Commonwealth v. Jorge Colon.

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

23-P-933

COMMONWEALTH

vs.

JORGE COLON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant,

Jorge Colon, was convicted of possession of a single baggie of

fentanyl that police found in his pants pocket. 1 He appeals,

arguing that the motion judge erred in denying the motion to

suppress evidence. We affirm.

Background. We summarize the facts found by the motion

judge, supplemented by our own review of the documentary

evidence, including video recordings taken by surveillance

1The jury convicted the defendant of that offense as a
lesser included offense of possession of fentanyl with intent to
distribute, G. L. c. 94C, § 32 (a). As to drugs found in a
trash can, the jury acquitted the defendant of trafficking in
eighteen grams or more of fentanyl, G. L. c. 94C, § 32E (c), and
possession of cocaine with intent to distribute, G. L. c. 94C,
§ 32A (a).
cameras at a nearby hospital and the officers' body cameras. 2

See Commonwealth v. Rand, 487 Mass. 811, 814 (2021).

On the morning of May 3, 2022, Boston police officers

Jordan Aragones and Anthony Dowling, both armed and wearing

bulletproof vests identifying them as police, were on patrol in

an unmarked black sport utility vehicle (SUV). At about 11:30

A.M., they were near the corner of Massachusetts Avenue and

Albany Street, a block away from the intersection of

Massachusetts Avenue and Melnea Cass Boulevard. That area was

known to both officers for high occurrences of open drug use and

drug dealing, and the officers had conducted dozens of drug

arrests there, including for hand-to-hand drug transactions. On

a sidewalk next to a bus stop, in an alcove behind an electrical

box and a trash can, the officers saw a group of four or five

people huddled together, facing each other and with their backs

to the street. The officers suspected a drug transaction and

collectively decided to "see what was going on."

2 In his brief the defendant has included excerpts from
trial exhibits altered with appellate counsel's own markings
describing what counsel contends the exhibits depict. Because
those alterations were not in the exhibits in the trial court,
their inclusion in the defendant's brief is not "supported by
appropriate citation," Mass. R. A. P. 20 (a) (1) (B) (i), as
appearing in 487 Mass. 1601 (2021), and we therefore disregard
those alterations and consider only the "exhibits on file."
Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019).

2
As the officers' SUV pulled up, the group dispersed. One

of the people in the group was the defendant. As Officer

Aragones got out of the SUV, the defendant, who had been walking

in the same direction that the SUV had been traveling,

immediately changed direction and began walking the opposite

way. The defendant tossed something into a trash can and

dropped a packet of Newport cigarettes on the sidewalk.

At 11:32 A.M., Officer Aragones caught up with the

defendant, tapped him lightly on the shoulder, and spoke to him. 3

Officer Aragones recognized the defendant as having previously

been arrested for drug charges on the same block, and told

Officer Dowling that the defendant had been arrested in the area

before. 4 While Officer Dowling engaged the defendant in

conversation, Officer Aragones retraced the defendant's steps

looking for the Newport cigarette packet but did not find it. 5

3
The motion judge found, "No evidence was produced as to
the content of Officer Aragones's statement to [the defendant]."
In fact, the transcript shows that when asked what he said to
the defendant, Officer Aragones testified, "I wanted to talk to
him." We do not determine the credibility of Officer Aragones's
testimony, because the content of his question is not
dispositive to our holding.

4
There was no testimony as to whether Officer Aragones
recognized the defendant before or after he touched the
defendant's shoulder.

5
The surveillance video depicted that immediately after the
defendant walked by a man picked up something from the ground
and then lit a cigarette.

3
On top of the trash in the trash can Officer Aragones found

fifteen baggies containing brown powder and three baggies

containing white powder. Police arrested the defendant, and on

his person found eight empty plastic bags in his backpack and

$350 in his pants pocket. At booking, police found in the

defendant's front right pants pocket a baggie of brown powder,

later determined to contain fentanyl.

The defendant moved to suppress the baggie of fentanyl

found in his pocket, as well as the other items found on his

person and in the trash can. At a hearing on the motion,

defense counsel argued that Officer Aragones's touching the

defendant's shoulder constituted a stop, but at that point

police did not have reasonable suspicion to stop him. After

questioning whether a touch on the shoulder constituted a stop,

the motion judge denied the motion to suppress, concluding that

once police found the drugs in the trash can, they had probable

cause to arrest the defendant and properly searched him incident

to arrest.

At a trial before a different judge, the jury convicted the

defendant of possession of the fentanyl found in his pocket and

acquitted him of charges pertaining to the drugs found in the

trash can.

Discussion. Whether touching constituted a seizure. The

defendant argues that the motion judge should have suppressed

4
the baggie of fentanyl found in the defendant's pocket. He

contends that police seized him at the moment when Officer

Aragones touched his shoulder, and at that point the police did

not have probable cause to arrest him or even reasonable

suspicion to stop him. We conclude that police had reasonable

suspicion to stop the defendant when Officer Aragones touched

him, which ripened to probable cause to arrest him once Officer

Aragones found the drugs in the trash can.

In reviewing a motion to suppress, "we accept the judge's

subsidiary findings of fact absent clear error," but "review

independently the application of constitutional principles to

the facts found." Commonwealth v. Warren, 475 Mass. 530, 534

(2016), quoting Commonwealth v. Wilson, 441 Mass. 390, 393

(2004). To determine whether a seizure was justified, "we ask

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." Warren, supra, quoting Commonwealth v. Martin,

467 Mass. 291, 303 (2014). The reasonable suspicion must be

grounded in "specific and articulable facts, and reasonable

inferences therefrom, in light of the officer's experience"

(quotation omitted). Commonwealth v. Privette, 491 Mass. 501,

507 (2023).

Under the United States Constitution, a seizure based on

physical force "requires the use of force with intent to

5
restrain," and "[a] tap on the shoulder to get one's attention

will rarely exhibit such an intent." Torres v. Madrid, 592 U.S.

306, 317 (2021). However, in Massachusetts, art. 14 "provides

more substantive protection to a person than does the Fourth

Amendment in defining the moment at which a person[] . . . may

be said to have been 'seized.'" Commonwealth v. Stoute, 422

Mass. 782, 785-786 (1996). Under art. 14, a person is "seized"

if "an officer has, through words or conduct, objectively

communicated that the officer would use his or her police power

to coerce that person to stay." Commonwealth v. Matta, 483

Mass. 357, 362 (2019). "[T]he coercion must be objectively

communicated through the officer's words and actions for there

to be a seizure." Id. at 364.

The motion judge found that "Officer Aragones touched [the

defendant] lightly to get his attention." The surveillance

video depicts Officer Aragones coming up behind the defendant

and touching his right shoulder, at which point the defendant

turned to face the officer and stopped walking. The defendant

argues that Officer Aragones's touching his shoulder constituted

a seizure.

In denying the motion to suppress by concluding that

Officer Aragones's subsequent discovery of the drugs in the

trash can gave police probable cause to arrest the defendant,

the judge implicitly rejected the defendant's argument that

6
Officer Aragones's touching the defendant's shoulder constituted

a seizure. We doubt that the officer's light touch on the

defendant's shoulder from behind constituted an objective

communication that the officer would use his police power to

coerce the defendant to stay. 6 See Matta, 483 Mass. at 362.

Officer Aragones did not obstruct the defendant's path or impede

his progress. See Commonwealth v. Daveiga, 489 Mass. 342, 347

(2022), citing Commonwealth v. Thompson, 427 Mass. 729, 733,

cert. denied, 525 U.S. 1008 (1998). The presence of the two

officers was not "overwhelming." Commonwealth v. Gomes, 453

Mass. 506, 510 (2009) (presence of three police officers did not

constitute seizure). Indeed, almost immediately after touching

the defendant's shoulder, Officer Aragones walked away. Until

the defendant turned and saw that the person who had touched his

shoulder was a police officer, the touch could not be said to

have been coercive within the meaning of Matta.

Reasonable suspicion at the moment of touching. We need

not definitively decide whether any touch by a police officer

would constitute a seizure, because we conclude that, at the

moment that Officer Aragones touched the defendant's shoulder,

6 If any touching by a police officer constituted a seizure,
that would presumably encompass such everyday interactions as an
officer's jostling against someone in a crowd, greeting someone
with a handshake, or tapping someone to alert them to having
dropped an item.

7
police had reasonable suspicion that the defendant had

committed, was committing, or was about to commit the crime of

drug possession or distribution.

In order to develop reasonable suspicion that a drug

transaction occurred, police need not see an exchange of drugs

or cash. See Commonwealth v. Castillo-Martinez, 104 Mass. App.

Ct. 22, 24 (2024), quoting Commonwealth v. Kearse, 97 Mass. App.

Ct. 297, 302 (2020). Factors that may support probable cause in

the context of a street-level drug transaction include:

"(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." Castillo-Martinez, supra

at 25, quoting Commonwealth v. Santa Maria, 97 Mass. App. Ct.

490, 494 (2020). Each of those factors was present here, and

thus Officer Aragones had at least reasonable suspicion to stop

the defendant. 7

Officers Aragones and Dowling were patrolling an area they

knew to have extremely high drug activity. In that area, both

officers had previously made dozens of arrests for both drug

7 We need not reach the question whether Officer Aragones
would have had probable cause to arrest the defendant at the
moment of the touching.

8
distribution and possession, had seen people ingesting drugs,

and had seen hand-to-hand drug transactions. The officers'

association of that area with high levels of drug activity had a

"direct connection with the specific location and activity being

investigated" (quotation omitted). Commonwealth v. Evelyn, 485

Mass. 691, 709 (2020). See Commonwealth v. Grandison, 433 Mass.

135, 140 (2001) (among other factors, the fact that defendant

was present in "area with a high incidence of illegal drug

activity" supported reasonable suspicion that defendant "was

carrying illegal drugs").

Officer Aragones saw an unusual transaction. The defendant

was one of a group of people in a recessed area of the sidewalk

behind an electrical box "huddled" together with their backs to

the street. See Commonwealth v. Stewart, 469 Mass. 257, 261

(2014) (reasonable suspicion based in part on officer observing

people "huddle" in a street "often used by drug users"). Based

on Officer Aragones's experience with drug arrests in the area,

he reasonably suspected that the group was engaging in one or

more hand-to-hand drug transactions. See id. (officer's

experience in drug investigations added to reasonable

suspicion).

9
The defendant's furtive behavior in response to the

officers added to reasonable suspicion. 8 As the police SUV

pulled over, the group dispersed. The defendant had been

walking in the same direction that the police SUV had been

traveling, but when Officer Aragones got out of the SUV, the

defendant immediately reversed direction. See Commonwealth v.

Karen K., 491 Mass. 165, 175, 179-180 (2023) (changing direction

to avoid police added to reasonable suspicion). See also

Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 11 (2023)

(repeatedly glancing over shoulder toward police station added

to reasonable suspicion). While walking away from Officer

Aragones, the defendant tossed something into the trash can and

dropped the packet of cigarettes. Cf. Grandison, 433 Mass. at

140 (defendant's spitting something out of mouth while walking

away from police added to reasonable suspicion).

Moreover, by the time the defendant turned in response to

Officer Aragones's touch, see note 4, supra, Officer Aragones

recognized the defendant as someone who had been arrested

previously for drug charges on the same block. That added

another quantum of proof to the officer's reasonable suspicion.

8 As for the defendant's argument that the motion judge
erred in crediting the testimony of Officer Aragones describing
what the defendant did, the short answer is that we defer to the
motion judge's credibility finding based on the officer's
testimony. See Commonwealth v. Tremblay, 480 Mass. 645, 655
(2018).

10
See Stewart, 469 Mass. at 261 (officer's knowledge of

defendant's previous drug distribution arrest added to

reasonable suspicion).

While none of the defendant's actions in isolation would

have established reasonable suspicion, "a combination of factors

that are each innocent of themselves may, when taken together,

amount to the requisite reasonable belief that a person has, is,

or will commit a particular crime." Matta, 483 Mass. at 365,

quoting Commonwealth v. Meneus, 476 Mass. 231, 236 (2017).

Based on the totality of the circumstances in this case, at the

moment when Officer Aragones lightly touched the defendant's

shoulder, police had reasonable suspicion that the defendant had

committed or was committing the crime of drug possession or

distribution. Once Officer Aragones found baggies of powder in

the trash can, police had probable cause to arrest the

defendant, and during the search at booking found the baggie of

fentanyl in his pants pocket.

Judgment affirmed.

By the Court (Massing,
Singh & Grant, JJ. 9),

Assistant Clerk

Entered: May 22, 2024.

9 The panelists are listed in order of seniority.

11