Commonwealth v. Jason M. Denison.

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-920

COMMONWEALTH

vs.

JASON M. DENISON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a District Court

judge allowing the defendant's motion to suppress evidence

seized pursuant to a warrantless arrest. We affirm.

Background. 1 On May 4, 2020, Sergeant Andrew Simmons of the

New Bedford Police narcotics unit was parked on a public street

conducting an investigation in the south end of New Bedford.

While parked, he noticed three cars circle the block three times

-– a black Lexus followed by a grey Mazda and then a white

Mazda. Simmons followed as the three cars turned down a side

1"We reprise the motion judge's findings of fact,
supplemented, in part, by uncontroverted testimony at the
hearing on the motion to suppress." Commonwealth v. Agogo, 481
Mass. 633, 633-634 (2019).
street. Simmons saw the following. 2 A Black male, later

identified as the defendant, exited the driver's side of the

black Lexus and approached the driver of the white Mazda and had

a conversation at the window. Simmons testified, "It appeared

that there was an exchange either retrieving something or

handing something in." Simmons could not see what it was. The

defendant then walked to the grey Mazda and raised one finger,

as if signaling to the operator of the grey Mazda to "hold on,"

and returned to the Lexus. Back at the Lexus, the defendant

opened the trunk and reached into a large plastic bag. He

removed something from a large plastic bag on the right side of

the trunk and placed it into a bag in front of him. He then

twisted something. He put the item in the front pocket of his

sweatshirt, and closed the trunk. As the defendant walked back

toward the white Mazda, there appeared to be a bulge in his

sweatshirt. He got into the white Mazda, which drove off.

Simmons followed.

After traveling about one block, the white Mazda stopped,

let the defendant out, and drove away. Simmons, believing he

had just witnessed a drug transaction, radioed to other officers

to stop the defendant and the white Mazda. Police found "some"

2 Simmons testified that he was approximately one hundred
feet from the Lexus and thirty feet from the last of the three
cars at the time of the observations.

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marijuana in the white Mazda; the operator denied that it came

from the defendant and said that the defendant was a "relative

or something." The location of the marijuana in the car and a

description of the packaging are not in the record. The

defendant, who was walking in the direction of the Lexus, was

stopped by other officers not far from where he exited the

Mazda. Meanwhile, detectives stopped the defendant, secured him

in handcuffs, and read him his Miranda rights.

The motion judge granted the defendant's motion to suppress

evidence seized from the defendant and the Lexus and statements

the defendant made after he was arrested. The motion judge

credited Simmons's testimony and found him to be an experienced

narcotics officer but concluded that his observations and

reasonable inferences "therefrom do not arise to the level of

reasonable suspicion."

Discussion. In reviewing an order on a motion to suppress,

"we adopt the motion judge's subsidiary findings of fact absent

clear error, but we independently determine the correctness of

the judge's application of constitutional principles to the

facts as found" (citation omitted). Commonwealth v. Buckley,

478 Mass. 861, 864 (2018). We may affirm the allowance of a

motion to suppress on any ground supported by the record.

Commonwealth v. Pridgett, 481 Mass. 437, 438 n.2 (2019).

3
Here, the Commonwealth correctly concedes that the

defendant was arrested when he was stopped by the police, placed

in handcuffs, and read his Miranda rights. 3 Commonwealth v.

Grandison, 433 Mass. 135, 145 (2001), quoting Commonwealth v.

Cook, 419 Mass. 192, 198 (1994) ("An arrest occurs where there

is [1] 'an actual or constructive seizure or detention of the

person, [2] performed with the intention to effect an arrest and

[3] so understood by the person detained'"). A warrantless

arrest must be supported by probable cause. See Commonwealth v.

Frazier, 410 Mass. 235, 241 (1991) (arrest unlawful where no

probable cause to believe defendant was committing a crime).

"[P]robable cause exists where, at the moment of arrest, the

facts and circumstances within the knowledge of the police are

enough to warrant a prudent person in believing that the

individual arrested has committed or was committing an offense"

(citation omitted). Commonwealth v. Santaliz, 413 Mass. 238,

241 (1992). "Probable cause may be established where the

'silent movie' observed by an experienced narcotics investigator

reveals 'a sequence of activity consistent with a drug sale at a

3 We assume, without deciding, that the officers had
reasonable suspicion to stop the defendant. See Commonwealth v.
Paris, 97 Mass. App. Ct. 785, 788 (2020) ("An investigatory stop
[is] justified if the Commonwealth proved that the police had a
reasonable suspicion, based on specific, articulable facts and
reasonable inferences therefrom, that [the defendant] had
committed, was committing, or was about to commit a crime"
[quotation and citation omitted]).

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place notorious for illicit activity in narcotics.'"

Commonwealth v. Stewart, 469 Mass. 257, 262 (2014), quoting

Santaliz, supra at 242. Probable cause did not exist here.

In Stewart, 469 Mass. at 259, the Supreme Judicial Court

held that officers did not have probable cause to arrest a

defendant where they observed the following: a man that one of

the officers had previously arrested for the distribution of

"crack" cocaine was walking down the street followed by two men

and one woman; the woman was counting currency. The group

turned down an alley known for drug use, huddled together in a

doorway briefly, exchanged something, and separated. Id. When

officers approached Stewart, he lied about where he had just

been. Id. Similarly, in Commonwealth v. Clark, 65 Mass. App.

Ct. 39, 41-44 (2005), we held that there was neither reasonable

suspicion to support a stop nor probable cause to support an

arrest where an officer conducting surveillance in a high crime,

high drug area witnessed an unknown male standing outside a bar

exchange an item for money with a man known to the officer as a

bartender at a different establishment. In Commonwealth v.

Levy, 459 Mass. 1010, 1011-1012 (2011), officers did not have

probable cause to search a Pontiac automobile, where they

observed a man in a Ford automobile exit the vehicle, make a

call at a public phone, enter a Pontiac automobile minutes

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later, ride in the Pontiac for approximately 200 yards, then

exit and return to the Ford.

The facts of this case fall below the level of suspicion

present in either Stewart or Clark. Here, the defendant and the

driver were both unknown to the police. There was no testimony

that the conduct occurred in a neighborhood known for illegal

activity of any kind. A brief car ride, without more, does not

establish probable cause. Whatever was transferred was small

enough to be held in a hand and unseen by an experienced

detective. Nor does the manipulation of plastic bags in a trunk

tip the scales in favor of establishing probable cause,

especially where small amounts of marijuana, which is often

packaged in small plastic bags, may be gifted legally in

Massachusetts. G. L. c. 94G, § 7 (a) (1), (4) (prohibits

prosecution or punishment for transfer of less than one ounce of

marijuana to person over age of twenty-one, as long as transfer

was not for remuneration and was not advertised to public). See

Commonwealth v. Long, 482 Mass. 804, 811 (2019) ("[a]s a result

of these changes to the Commonwealth's marijuana laws, to obtain

a search warrant for an offense involving marijuana, the police

are required to establish that they are investigating illegal

marijuana possession or illegal marijuana cultivation, not

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merely the possession, consumption, or cultivation of

marijuana").

Order allowing motion to
suppress affirmed.

By the Court (Green, C.J.,
Blake & Henry, JJ. 4),

Clerk

Entered: August 21, 2024.

4 The panelists are listed in order of seniority.

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