COMMONWEALTH v. ENRIQUE CRUZ-ROSARIO (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

25-P-55
25-P-56

COMMONWEALTH

vs.

ENRIQUE CRUZ-ROSARIO (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from the order of a Superior Court

judge allowing the defendants' motions to suppress evidence

discovered when the police (1) conducted a warrantless search of

Enrique Cruz-Rosario's car and (2) later searched Enrique's2 home

and a second address in Springfield based on search warrants

obtained using evidence discovered as a result of the initial

warrantless search. We affirm.

1 Commonwealth vs. Raul Cruz-Rosario.

2The defendants are brothers and share the same last name.
For clarity's sake, we refer to them by their first names.
Background. We summarize the judge's findings, which were

made after an evidentiary hearing. We reserve for later

discussion certain details relevant to our consideration of the

Commonwealth's challenges to certain of the judge's findings as

clearly erroneous.

On February 3, 2022, Springfield police officers

surveilling the defendants saw them leave Enrique's home in

Springfield and drive in Enrique's car, an Infiniti, to

Chicopee, where they parked near a methadone clinic. The

officers saw two unidentified men walk into the clinic and then,

a few minutes later, saw the men leave the clinic and get into

the front seats of a Hyundai Santa Fe that was parked near

Enrique's car. Enrique got out of his car and into the back

seat of the Hyundai; the two men in the Hyundai turned around to

face Enrique. One of the officers saw Enrique reach into a map

pocket on the back of one of the front seats, but the officer

did not see him take anything out of the pocket, hand anything

to anyone else in the car, or exchange anything with the other

occupants of the Hyundai. Enrique got out of the Hyundai and

into the driver's seat of the Infiniti. Enrique and Raul drove

away in the Infiniti, and the Hyundai drove away with the two

unidentified men inside. Shortly afterward, the police stopped

the Hyundai, searched the car and its occupants, and discovered

"illegal narcotics and other contraband." After learning about

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the discovery of the contraband in the Hyundai, police officers

stopped the Infiniti, arrested the defendants, and searched them

and the car. In doing so, the police discovered illegal

narcotics in the car and on the defendants' persons.3

Later that day, the police applied for warrants to search

Enrique's home and another property in Springfield. The

warrants were issued, and when the police executed them,

officers discovered a firearm, ammunition, and illegal drugs at

the target locations. The defendants were each subsequently

indicted on numerous counts, including various drug trafficking

and firearms offenses.4

The defendants each moved to suppress evidence found when

the police searched the Infiniti, Enrique's home, and the other

Springfield property. The judge allowed the defendants'

motions, and a single justice of the Supreme Judicial Court

granted the Commonwealth leave to file an appeal in this court

from the judge's decision. See G. L. c. 278, § 28E; Mass. R.

Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017).

3 The judge found that the police discovered firearms in the
Infiniti. On appeal, the Commonwealth concedes that no firearms
were found in the Infiniti.

4 For Raul, several counts included habitual offender
enhancements.

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Discussion. 1. Warrantless search of the defendants and

the Infiniti. "[W]arrantless searches 'are per se

unreasonable'" under both the Fourth Amendment to the United

States Constitution and art. 14 of the Massachusetts Declaration

of Rights. Commonwealth v. Dame, 473 Mass. 524, 536, cert.

denied, 580 U.S. 857 (2016), quoting Commonwealth v. Cast, 407

Mass. 891, 901 (1990). Under the "automobile exception" to this

general prohibition, however, the police may search a vehicle

without a warrant when they have "probable cause to believe that

it contains evidence of a crime." Commonwealth v. Davis, 481

Mass. 210, 220 (2019). Similarly, where the police have

probable cause to lawfully arrest a person, they may also

conduct a search incident to arrest "for the purposes of seizing

fruits, instrumentalities, contraband and other evidence of the

crime for which the arrest has been made." G. L. c. 276, § 1;

Commonwealth v. Soto, 104 Mass. App. Ct. 806, 809 (2024), cert.

denied, 146 S. Ct. 151 (2025). Probable cause exists where "the

facts and circumstances within the officer's knowledge at the

time of making the search or seizure were sufficient to warrant

a prudent [person] in believing that the defendant had

committed, or was committing, an offense." Commonwealth v.

Bostock, 450 Mass. 616, 624 (2008), quoting Commonwealth v.

Miller, 366 Mass. 387, 391 (1974). "In reviewing a decision on

a motion to suppress, we accept the judge's subsidiary findings

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of fact absent clear error but conduct an independent review of

[the] ultimate findings and conclusions of law" (citation

omitted). Commonwealth v. Carrasquillo, 489 Mass. 107, 116-117

(2022).

The Commonwealth first challenges several of the judge's

factual findings as clearly erroneous. See Commonwealth v.

Castillo, 89 Mass. App. Ct. 779, 781 (2016), quoting Green v.

Blue Cross & Blue Shield of Mass., Inc., 47 Mass. App. Ct. 443,

446 (1999) ("A finding is clearly erroneous when 'although there

is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed'"). One of these findings -- that

officers surveilling the defendants saw "two other unidentified

males on foot" go inside the methadone clinic -- is not clearly

erroneous. Although the Commonwealth's witness, Detective Alley

Bonemery, testified that he saw the defendants go into the

clinic after parking nearby, he also testified that he saw the

occupants of the Hyundai, whom he did not know, do the same

thing. That challenged finding was thus not clearly erroneous.

See Castillo, supra.

The Commonwealth's challenge to two other findings is more

persuasive; we agree with the Commonwealth that (1) Bonemery

testified that the map pocket into which Enrique reached was

part of the Infiniti and not, as the judge found, the Hyundai,

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and (2) there was no evidence that a firearm was found in the

Infiniti when the police searched it after arresting the

defendants. However, neither finding was material to the

motions to suppress the warrantless searches. First, Bonemery

did not testify that the police saw Enrique put anything into

the pocket or remove anything from it, nor did the judge so

find; thus, Enrique reaching into either car's map pocket does

not contribute to probable cause. Second, the items found as a

result of the search, regardless of whether those items included

a firearm, could not have been part of the probable cause

calculus for the search itself. See Bostock, 450 Mass. at 624;

Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 790 (2018)

("Reasonable suspicion cannot rest on later-developed facts not

shown to have been known to officers at the relevant time").

For that reason, we are satisfied that the appropriate remedy is

to exclude the erroneous findings from our consideration in

conducting our independent review of the judge's conclusions of

law. See Commonwealth v. Wedderburn, 36 Mass. App. Ct. 558,

558-559 (1994) ("We take the facts from the judge's findings

following a hearing on the motion to suppress, . . . eliminating

those that, from our reading of the transcript, are clearly

erroneous"). Cf. Commonwealth v. Tremblay, 480 Mass. 645, 647

(2018) (remanding case where judge failed to make findings

regarding "material evidence"); Hilaire, supra at 789-790 (facts

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on which judge relied that were based on judge's independent

research were set aside and not considered in independent

application of constitutional principles to remaining facts).

The remaining facts found by the judge support the

conclusion that the police lacked probable cause to believe that

the defendants were committing a crime at the time of the

warrantless search.5 The judge credited Bonemery's testimony

that the defendants and the occupants of the Hyundai arrived at

the methadone clinic; that the defendants went in and out of the

clinic and the occupants of the Hyundai did the same; that after

the Hyundai's occupants got back into their car, Enrique got in

the back seat of that car and the Hyundai's occupants turned

around to face him; that Enrique then got out of the Hyundai and

returned to the Infiniti; that both cars then drove away; and

that the police stopped the Hyundai and found illegal drugs

inside. Significantly, the judge found that the police did not

see Enrique hand anything to or exchange anything with the

occupants of the Hyundai. Cf. Commonwealth v. Kennedy, 426

Mass. 703, 704, 707 (1998) (probable cause found where police

5 At oral argument, the Commonwealth appropriately conceded
that, as to the warrantless searches, it can rely only on the
evidence presented at the evidentiary hearing, and not on
additional information included in the applications for the
search warrants, thus withdrawing the arguments in its brief
that relied on the additional information.

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saw "quick" hand-to-hand transaction with known drug dealer in

area known for drug crimes); Commonwealth v. Santaliz, 413 Mass.

238, 239-240, 242 (1992) (probable cause found where police saw

hand-to-hand transaction in area "notorious" for illegal drugs);

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

(probable cause found where police saw apparent hand-to-hand

transaction in high crime area). There was no evidence that the

area in which the police made their observations of the

defendants and the occupants of the Hyundai was a "high crime"

area or an area known for illegal drug activity, or -- as far as

the evidence at the motion to suppress hearing went -- that the

defendants were known to be involved with drugs. Cf. Kennedy,

supra; Santaliz, supra; Santa Maria, supra. There was likewise

no evidence that either the defendants or the occupants of the

Hyundai behaved in any unusual way that was especially

suggestive of an illegal drug transaction. Cf. Commonwealth v.

Alvarado, 93 Mass. App. Ct. 469, 469-470 (2018) (probable cause

found where car with out-of-state license plates stopped in area

known for drug activity and defendant got into car briefly for

what expert witness described as "ride to nowhere");

Commonwealth v. Sanders, 90 Mass. App. Ct. 660, 665 (2016)

(probable cause found in part due to "unusual nature of the

event . . . observed" by "experienced narcotics investigator").

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Moreover, although we may infer from the judge's statement

expressly crediting Bonemery's factual testimony that the judge

found that Raul was standing on the sidewalk on the passenger's

side of the Infiniti while Enrique was in the Hyundai, because

the judge explicitly rejected Bonemery's conclusions about the

significance of what the police saw, we cannot infer that Raul

was "serving as a lookout." See Commonwealth v. Jones-Pannell,

472 Mass. 429, 431 (2015) ("supplemented facts [may] not detract

from the judge's ultimate findings" [quotation and citation

omitted]). Similarly, although the judge found that Bonemery

"suspected" that he had witnessed an illegal drug transaction,

the judge did not agree. Without more, the facts found by the

judge do not support probable cause for the warrantless search.6

2. Searches of the Springfield properties. At oral

argument, the Commonwealth conceded that if the warrantless

searches of the defendants and the Infiniti were unlawful, such

6 The Commonwealth's reliance on Commonwealth v. Woods, 419
Mass. 366, 375-376 (1995), for the proposition that the
discovery of illegal drugs in the Hyundai shortly after Enrique
got in and out of that car "gave rise to a strong inference as
to the nature of the transaction" between Enrique and the men in
the Hyundai is undercut by the factual differences between this
case and Woods. In Woods, unlike in this case, there was
evidence of an actual "transaction" -- the police watched as the
suspected buyer "gave the defendant what appeared to be money in
exchange for an object," then "walked away from the defendant,
placed the object into her mouth, entered a vehicle, and drove
away." Id. at 367-368. The police made no such observations in
this case.

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that the evidence discovered in the illegal searches would be

stricken from the affidavits supporting the applications for the

search warrants, see Commonwealth v. DeJesus, 439 Mass. 616, 625

(2003), the remaining evidence supporting the application for

the search warrants would be insufficient to establish probable

cause. We agree. Given our conclusion that the police lacked

probable cause for the warrantless searches, we affirm the order

allowing the defendants' motions to suppress the evidence

obtained using the search warrants.

Order dated September 13,
2024, allowing motions to
suppress affirmed.

By the Court (Blake, C.J.,
Hand & Toone, JJ.7),

Clerk

Entered: March 31, 2026.

7 The panelists are listed in order of seniority.

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