Commonwealth v. Pastor Padilla.

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-505

COMMONWEALTH

vs.

PASTOR PADILLA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial, a Superior Court judge found

the defendant guilty of one count of distributing heroin.1 On

appeal, the defendant argues that (1) the motion judge erred in

denying his motion to suppress, and (2) the trial judge erred in

admitting certain testimony. We affirm.

Background. The charge for which the defendant was

convicted was based on an incident that Woburn police officers

observed outside of a residence that they had under

surveillance. After a car the defendant was driving stopped at

the residence, two individuals from inside the home approached

the car and quickly spoke to the defendant. The police observed

1 The Commonwealth charged this as a second or subsequent
offense. The defendant pleaded guilty to the enhancement
portion of the indictment. The Commonwealth nol prossed two
additional counts.
one of the residents "walk up to the car to the passenger side,

crouch down, lean forward, a hand go in, a hand come out and go

into a pocket." Concluding that they had just observed a hand-

to-hand sale of narcotics, the police stopped the car. Then,

after the individuals from the house admitted that they had just

purchased three grams of heroin for $150, the police arrested

the defendant. An inventory of the car's contents revealed $150

in cash in one of the car's cup holders.

Discussion. 1. Motion to suppress. "Police may effect a

motor vehicle stop based on reasonable suspicion of criminal

activity." Commonwealth v. Barreto, 483 Mass. 716, 718 (2019).

Arguing that the police lacked reasonable suspicion to stop the

car under the circumstances present here, the defendant moved to

suppress the discovery of the cash and any other evidence found

in the car.

In reviewing the denial of that motion, we accept the

motion judge's subsidiary findings of fact absent clear error,

but we independently review his ultimate findings and

conclusions of law. See Commonwealth v. Tejada, 484 Mass. 1, 7

(2020). Having done so, we agree with the motion judge that the

police had reasonable suspicion to stop the car.

Where, as is the case here, the basis for reasonable

suspicion is a perceived drug transaction, "[i]t is not

necessary . . . that the police officer observe an exchange of

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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). The circumstances present here

provided ample support for the police to believe that they had

witnessed a hand-to-hand sale of illegal narcotics. The

transaction occurred directly in front of a residence that the

officers had been surveilling due to neighbors' complaints of

traffic associated with the drug trade that had "ramped up" as

recently as "that day" and "the week prior." See Commonwealth

v. Freeman, 87 Mass. App. Ct. 448, 452 (2015) ("reports of

'increased drug activity,' even if anonymous, are sufficient to

contribute to the circumstantial evidence that a drug

transaction had occurred"). The officers also knew that someone

at the residence had suffered a drug overdose there within the

last eight months.2 See Commonwealth v. Clark, 65 Mass. App. Ct.

39, 45 (2005) (fact that police knew participants to be drug

dealers or users relevant factor). Moreover, the police knew

2 Putting aside that the motion judge may well have credited
evidence of additional drug-related complaints and reports of
more recent overdoses at the residence, we are unpersuaded by
the defendant's argument that the police relied on information
that was unduly stale. In any event, the knowledge of the prior
incidents served merely to contextualize what the police were
directly observing at the scene; it was not the primary basis of
their decision to detain the defendant.

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that within the prior year, the very car that the defendant was

driving had been involved in two drug-related incidents, at

least one of which led to an arrest. With these contextual

circumstances in mind, the experienced narcotics officers had

ample justification to believe that the apparent hand-to-hand

interchange they observed was an illegal narcotics transaction.

Contrast Barreto, 483 Mass. at 720-721 (no reasonable suspicion

where officers did not directly observe drug transaction and the

location, buyer, and seller were not associated with prior drug

activity).

2. Evidentiary issue. At trial, one of the officers

testified that at the scene he relayed to his fellow officers

that he "saw a hand-to-hand take place." The defendant did not

object to this testimony. On appeal, he claims that this

characterization amounted to improper expert testimony on an

ultimate issue in the case, that is, whether an illegal

transaction had occurred. See Commonwealth v. Canty, 466 Mass.

535, 541 (2013) (in operating under influence case, officer may

testify that driver appeared intoxicated, but not that he was

driving under influence). We disagree.

We view the testimony as offering explanatory background

for what occurred at the scene, not an opinion that the

defendant's conduct amounted to a criminal offense. Moreover,

police officers are given some latitude in applying their

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experience and training to help illuminate their observations.

See, e.g., Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 539

(2012) ("police officer is permitted to rely on his training and

experience and to give testimony that is explanatory and

nonconclusory about the common characteristics of street-level

narcotics transactions when it will be of assistance to the

[fact finder]"). In addition, because this was a bench trial,

any concerns that the fact finder would be unduly influenced by

a witness's expression of an opinion as to a defendant's guilt

is, at a minimum, much less present. We not only presume that

the trial judge understood that it was ultimately his job to

determine whether the defendant had distributed heroin, but

also, comments the judge made during the trial demonstrate that

he was particularly sensitive to this issue.3

Finally, even if the testimony were viewed as improper, it

did not create a substantial risk of a miscarriage of justice.

The evidence against the defendant was quite strong. For

example, the testimony from the two individuals that they had

just purchased three grams of heroin from the defendant for $150

was corroborated by the discovery of the $150 in cash found in

3 During cross-examination, the officer continued to refer to his
having observed a "hand-to-hand." This prompted the
Commonwealth itself to object. The judge assured the
Commonwealth that he "c[ould] ignore [the characterizations],"
while adding that "if a jury were here, there would be more of a
caution."

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the car's cupholder. In addition, defense counsel conducted an

aggressive cross-examination of exactly what the testifying

officer could observe from his vantage point. We are confident

that the officer's reference to having seen a "hand-to-hand" did

not sway the judge's finding. See Commonwealth v. Soto, 45

Mass. App. Ct. 109, 114 (1998) ("unlikely" that officer's

unobjected-to testimony that he believed that he had just seen

drug transaction would, on its own, create substantial risk of

miscarriage of justice).

Judgment affirmed.

By the Court (Milkey, Blake &
Sacks, JJ.4),

Clerk

Entered: September 22, 2023.

4 The panelists are listed in order of seniority.

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