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SJC-11475

                   COMMONWEALTH   vs.   PAUL STEWART.



            Plymouth.    March 6, 2014. - August 7, 2014.

 Present:    Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
                             & Lenk, JJ.1


Controlled Substances. Habitual Offender. Constitutional Law,
     Search and seizure, Investigatory stop, Probable cause,
     Reasonable suspicion. Threshold Police Inquiry. Probable
     Cause. Search and Seizure, Threshold police inquiry,
     Reasonable suspicion, Search incident to lawful arrest,
     Fruits of illegal search, Probable cause.



     Indictments found and returned in the Superior Court
Department on July 23, 2008.

     A pretrial motion to suppress evidence was heard by Frank
M. Gaziano, J., and the cases were tried before Judith
Fabricant, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     James P. Vander Salm for the defendant.
     Zachary Hillman, Assistant District Attorney (Melissa L.
Brooks, Assistant District Attorney, with him) for the
Commonwealth.

     1
       Justice Ireland participated in the deliberation on this
case prior to his retirement.
                                                                      2


     Michael J. Fellows, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.
     William W. Adams, for Tari Richardson, amicus curiae,
submitted a brief.


     GANTS, J.   A Superior Court jury convicted the defendant of

possession of a class B substance (cocaine) with intent to

distribute, in violation of G. L. c. 94C, § 32A (c).2    After that

guilty finding, in the second part of a bifurcated trial, the

jury found that the defendant had previously been convicted in

2006 of distribution of a class B substance and in 1994 of

assault and battery by means of a dangerous weapon, and that he

had been committed to prison for not less than three years on

each of these prior convictions.     As a result, the defendant was

sentenced both under G. L. c. 94C, § 32A (d), which provides for

a sentence of not less than five years nor more than fifteen

years in State prison where a defendant is convicted of a

violation of § 32A (c) after an earlier conviction of that

offense, and under G. L. c. 279, § 25, as a habitual offender,

which requires that the defendant "be punished by imprisonment

in the [S]tate prison for the maximum term provided by law as a

penalty for the felony for which he is then to be sentenced,"

which the judge determined to be the statutory maximum of

fifteen years in State prison.     In an unpublished memorandum and

     2
       The jury found the defendant not guilty of possession of
cocaine with intent to distribute in a school zone.
                                                                    3


order pursuant to rule 1:28 of the Appeals Court, a panel of

that court affirmed both the conviction and the sentence.

Commonwealth v. Stewart, 81 Mass. App. Ct. 1135 (2012).     We

granted the defendant's application for further appellate

review.

     On appeal, the defendant claims that the judge erred in

denying his motion to suppress, that the defendant was

prejudiced by the admission of statements made by the prosecutor

and some of the Commonwealth's witnesses that suggested that the

defendant was known to be a drug dealer, and that the sentence

was illegal because he was sentenced both as a subsequent

offender and as a habitual criminal.     We conclude that the

motion to suppress should have been allowed and therefore vacate

the defendant's conviction.   Because the conviction is vacated

and there is no significant likelihood that the case can be

tried without the evidence that has been suppressed, we do not

reach the trial or sentencing issues.3

     Motion to suppress.   We summarize the facts as found by the

motion judge, supplementing those findings with evidence in the

record that is uncontroverted and that was implicitly credited

by the judge.   See Commonwealth v. Isaiah I., 448 Mass. 334, 337

(2007), S.C., 450 Mass. 818 (2008), and cases cited.

     3
       We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and counsel for Tari
Richardson.
                                                                    4


    In the early evening of May 22, 2008, Sergeant Detective

William Dwan, and Officers Peter Chu, John Ryle, and Brian

Linehan of the Boston police department were returning to the

police station in an unmarked sport utility vehicle after

completing an undercover assignment.    In Boston's theater

district, Dwan observed the defendant walking on Washington

Street followed by two men and one woman.    The woman was

counting currency.   Dwan recognized the defendant because he had

arrested him for the distribution of "crack" cocaine to an

undercover police officer three years earlier in the same area.

The officers observed the group turn onto Hayward Place, a

narrow one-way street which, in the officers' experience, was a

popular area for drug use, because drug users could "duck into a

number of doorways on the side street."    The officers parked

near the intersection of Hayward Place and the Harrison Avenue

extension.   From that vantage point, Dwan "observed the group

huddle together in a doorway for a brief period of time,

exchange something, and then separate."

    The woman and one of the men walked toward Washington

Street, while the defendant and the other man walked down

Hayward Place in the direction of the officers.    After the

defendant had separated from the man with whom he had been

walking and walked alone a short distance, Ryle and Chu left the

vehicle and approached the defendant.     Ryle displayed his police
                                                                     5


badge and ordered the defendant to stop and identify himself.

The defendant complied.     Shortly thereafter, Dwan approached and

asked the defendant where he had been.     The defendant denied

that he had been at Hayward Place or had met others there.

    Dwan then inquired about the contents of the thin nylon

backpack that the defendant was carrying, which "was noticeably

weighed down with an object."     The defendant stated that the

backpack contained his cellular telephone charger.     Dwan asked

for permission to search the bag, whereupon the defendant

removed the bag and handed it to him.     Dwan removed a hard box

that was designed to look like a cigarette package, but was

"noticeably heavier."     At this point, the defendant changed his

mind and told Dwan that he could not look in the bag.     On

opening the box, Dwan discovered that it was a digital scale,

which contained a white powder residue that he believed to be

cocaine.   The defendant was then arrested for possession of

cocaine.   In the search of the defendant that immediately

followed, the officers found money and a plastic bag containing

twelve smaller packages of cocaine.

    The defendant moved to suppress all evidence seized as a

result of his stop and subsequent arrest.     The motion judge

found that the officers had probable cause to believe that the

defendant had participated in a drug transaction at the time

they stopped him, based on their observations, experience, and
                                                                     6


familiarity with the defendant.     Accordingly, the motion judge

concluded that the officers searched the defendant incident to a

valid arrest, and denied the defendant's motion to suppress.

     A panel of the Appeals Court affirmed the denial of the

motion to suppress, albeit on different grounds.     Commonwealth

v. Stewart, 81 Mass. App. Ct. 1135.     The panel concluded that

the officers' observations of "what they believed, based on

their training and experience, to be a street-level drug

transaction" created "at least reasonable suspicion to stop the

defendant and inquire further into his activities."     The panel

also concluded that the reasonable suspicion ripened into

probable cause after the defendant lied about where he had just

been.   Id.

     We accept the judge's findings of fact unless clearly

erroneous.    Commonwealth v. Leahy, 445 Mass. 481, 485 (2005),

citing Commonwealth v. Sicari, 434 Mass. 732, 746-747 (2001),

cert. denied, 534 U.S. 1142 (2002).     Applying this standard, we

accept all the judge's findings except one:     his finding that

Dwan "observed an exchange of an unknown object."     A careful

look at Dwan's testimony reveals that he did not see such an

exchange, but inferred from what he saw that an exchange had

occurred.     Dwan testified that he had an unobstructed view of

the four persons after they "huddled together," but could see

only "their upper torso area."     When initially asked, "Did you
                                                                    7


see any exchange at all," he answered, "No, I didn't."    The

prosecutor later read Dwan an excerpt from his grand jury

testimony, where he had stated, "On this occasion, I watched all

three [sic] parties walk together, stop halfway up on Haeyward

Place, and appear to make an exchange at that location."    The

prosecutor attempted to rephrase Dwan's grand jury testimony by

asking, "[Y]ou testified that you saw an exchange, correct?"

Dwan answered, "yes," even though that was not what he said to

the grand jury; he said there that they "appear[ed] to make an

exchange."   There was no evidence at the motion hearing, either

from what Dwan testified to at the hearing or before the grand

jury, that Dwan actually observed an exchange.

    Our finding that Dwan did not see an exchange, but simply

inferred from what he knew and saw that an exchange had

occurred, is supported by the absence of any evidence as to who

participated in the exchange.   If Dwan truly had observed an

exchange, he could have testified to who made the exchange; he

did not.   Consequently, there was no evidence that the defendant

participated in the exchange that Dwan inferred had happened

during the "huddle."

    We conclude that the investigatory stop of the defendant

was supported by reasonable suspicion.   "A police officer may

make an investigatory stop 'where suspicious conduct gives the

officer reasonable ground to suspect that a person is
                                                                    8


committing, has committed, or is about to commit a crime.' . . .

The action of the officer 'must be based on specific and

articulable facts and reasonable inferences therefrom, in light

of the officer's experience.'"   Commonwealth v. Gomes, 453 Mass.

506, 510-511 (2009), quoting Commonwealth v. Wilson, 441 Mass.

390, 394 (2004).   In view of Dwan's experience in drug

investigations, he had reasonable grounds to suspect that he had

witnessed a drug transaction based on the information he had

earlier acquired (that the defendant, three years earlier, had

been arrested for distributing narcotics to an undercover police

officer in the theatre district of Boston) and that he had just

acquired from his observations (three persons followed the

defendant down a narrow street often used by drug users, with

the woman counting currency as she walked, and then all four

huddled briefly together in a doorway, before they dispersed).

     Based on reasonable suspicion, the officers lawfully

stopped the defendant and questioned him as to what had just

happened.   But reasonable suspicion alone was not sufficient to

allow Dwan lawfully to open the hard cigarette box, where there

was nothing to suggest that a weapon was inside.4



     4
       On appeal, the Commonwealth does not argue that the
officers were justified in opening the cigarette box based on a
reasonable belief that the defendant was armed and dangerous,
and that the cigarette box may have contained a weapon. See
Commonwealth v. Gomes, 453 Mass. 506, 512 (2009).
                                                                  9


    Nor was opening the cigarette box lawful based on the

defendant's initial consent to Dwan's looking inside his

backpack, where the defendant had withdrawn his consent before

Dwan opened the cigarette box.    A consent to search can be

withdrawn or limited at any time before completion of the

search.   United States v. Mitchell, 82 F.3d 146, 151 (7th Cir.),

cert. denied, 519 U.S. 856 (1996), citing Florida v. Jimeno, 500

U.S. 248, 252 (1991).    See, e.g., Commonwealth v. Caputo, 439

Mass. 153, 163 (2003), quoting United States v. Dichiarinte, 445

F.2d 126, 129 n.3 (7th Cir. 1991) ("defendant's consent may

limit the extent or scope of a warrantless search"); 4 W.

LaFave, Search and Seizure § 8.1 (c) at 58 (5th ed. 2012)

("consent usually may be withdrawn or limited at any time prior

to the completion of the search").    Although evidence found

during the search before the withdrawal of the consent may be

lawfully admitted, a search must end on the withdrawal of

consent where there is no other legal justification.    See United

States v. Mitchell, supra; 4 W. LaFave, Search and Seizure,

supra. Consequently, as the motion judge and the Appeals Court

recognized, Dwan's opening of the cigarette box was lawful only

if it was a search incident to arrest, supported by probable

cause.    We therefore turn to the question whether there was

probable cause to arrest the defendant at the time the box was

opened.
                                                                 10


    "[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."

Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting

Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied,

446 U.S. 955 (1980).   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 place notorious for illicit activity in

narcotics."   Commonwealth v. Santaliz, supra at 242.    In

Commonwealth v. Kennedy, 426 Mass. 703, 704 (1998), we concluded

that probable cause existed where experienced narcotics officers

observed a man who was known to have been arrested previously

for narcotics sales engage in the following "silent movie"

sequence:   the man approached the passenger side of a vehicle

that had stopped at a street curb, put his head inside the open

window and appeared to exchange words with the driver (the

defendant), who was alone in the vehicle; the man ran away, only

to return one minute later and exchange something with the

driver of the vehicle, and then the man walked away and the

vehicle drove off.   Similarly, in Commonwealth v. Santaliz, 413

Mass. at 241, we found probable cause (although we "found the

case 'close'") where an experienced narcotics officer saw this
                                                                    11


"silent movie" sequence:    the defendant was seated near a woman

on the front porch of a "soup kitchen" known as a place of high

incidence of drug activity when a taxicab stopped in front of

the building; the woman took something from her waistband and

handed it to the defendant; the defendant silently handed the

object to a person in the taxicab, who gave the defendant money

in return; the person left in the taxicab, and the defendant

gave the money to the woman.     Id. at 239-240.

    The "silent movie" sequence in this case is comparable but

with two significant differences:    first, Dwan inferred that an

exchange of something occurred but did not see an exchange; and,

second, there was no evidence that the defendant exchanged

anything himself.     As to the first difference, in each of the

cases cited by the motion judge and by the Commonwealth where

probable cause was found based on the inference of an illegal

exchange, an officer saw the defendant make an exchange with

another person.     See Commonwealth v. Kennedy, 426 Mass. at 704

("Morales reached into the vehicle toward Kennedy, while Kennedy

reached toward Morales"); Commonwealth v. Santaliz, 413 Mass. at

240 ("The defendant handed the object to the woman, and she gave

him money").   See also Commonwealth v. McCoy, 59 Mass. App. Ct.

284, 286 (2003) (officers observed woman pass cash "through the

rolled-down front-seat passenger's window to the passenger");

Commonwealth v. Gant, 51 Mass. App. Ct. 314, 315 (2001) (officer
                                                                  12


"saw the defendant exchange something with Gonzalez").   Although

we do not require "that an officer must actually see an object

exchanged," the suspect's movements, as observed by the officer,

must provide factual support for the inference that the parties

exchanged an object.   Commonwealth v. Kennedy, supra at 710.

See Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011), quoting

Commonwealth v. Kennedy, supra at 711 ("While we reject a per se

rule that an officer must actually see an object exchanged to

have probable cause to arrest," failure to see such exchange

"weakens the Commonwealth's probable cause showing").    Here, the

officer testified that the defendant and three companions

huddled in a doorway, but his view was limited to their "upper

torso area" and he did not testify to seeing the defendant make

any hand movements suggesting an exchange or to seeing any

object passing between the defendant and any of his companions.

See, e.g. Commonwealth v. Levy, 459 Mass. at 1011 (finding no

probable cause where "[n]o officer saw an actual exchange of any

kind").

    As to the second difference, in each of the cases cited

above, the apparent exchange involved only two persons, with one

of them being the defendant, so if there was any exchange, there

was no doubt that the defendant participated in it.   Here, the

defendant huddled with three individuals so, if there was an

exchange, there was no certainty that the defendant participated
                                                                  13


in it.   The failure to observe an actual exchange and the number

of suspects who could have participated in any such exchange,

when considered together, significantly weaken the weight of the

Commonwealth's evidence.   Although that evidence is sufficient

for reasonable suspicion, it falls short of probable cause.

    The defendant's false denial that he had been on Hayward

Place or had met others there permits the reasonable inference

that something occurred during that "huddle" that the defendant

did not want to admit to the police and strengthens the

suspicion that the defendant had participated in a drug

transaction.   We recognize that, in some instances, the added

inferential weight of a false denial may be sufficient to turn

reasonable suspicion into probable cause.   See Commonwealth v.

Riggins, 366 Mass. 81, 88 (1974) ("Implausible answers to

police questions will, with other facts, support a finding of

probable cause to conduct a search").   But we conclude here

that, even when this inference is added to the weight of the

totality of the evidence known to the officers before Dwan

opened the cigarette box, the evidence still falls short of

probable cause.   There inevitably is a narrow line separating

reasonable suspicion from probable cause, but in this "silent

movie," where the observing police officer saw four people in a

huddle but did not see the defendant himself (or anyone)

actually make an exchange, the inference of an actual
                                                                  14


distribution of a controlled substance involving the defendant

falls on the reasonable suspicion side of that line.5

     Therefore, we conclude that there was no probable cause to

make an arrest when the cigarette box was opened, and that the

opening of that box cannot be justified as a search incident to

arrest.   Because the seizure of the plastic bag containing

cocaine and the cash found during the search of the defendant

was a fruit of the illegal search of the cigarette box, the

cocaine and the cash should have been suppressed.   Where the

prosecution's case rested primarily on the defendant's

possession of these items, the admission of the cocaine and cash

was not harmless beyond a reasonable doubt.   The defendant's

conviction must therefore be vacated and a new trial ordered.

     Because we vacate the conviction and doubt that the

Commonwealth realistically can retry the case without the

suppressed cocaine, we do not reach the issue regarding the

legality of the defendant's sentence.   Nor need we reach the


     5
       We recognize that probable cause is an objective test, and
does not depend on whether the officers subjectively believed
there was probable cause, see Commonwealth v. Franco, 419 Mass.
635, 639 (1995), citing Commonwealth v. Hason, 387 Mass. 169,
175 (1982), but we note that Dwan, an experienced sergeant
detective who had been in the drug control unit for nine years
before this incident, did not arrest the defendant after he lied
about his whereabouts. Instead, Dwan placed the defendant under
arrest only when Dwan saw the cocaine residue on the digital
scale inside the cigarette box and even then arrested the
defendant for possession of the cocaine residue, not for
whatever happened during the "huddle" a few minutes earlier.
                                                                  15


issue whether a substantial risk of a miscarriage of justice

arose from statements made by the prosecutor and some of the

Commonwealth's witnesses that suggested that the defendant was

known to be a drug dealer.

    Conclusion.   Because the defendant's motion to suppress

should have been allowed, and the admission of the evidence that

should have been suppressed was not harmless beyond a reasonable

doubt, we vacate the defendant's conviction and remand the case

to the Superior Court to allow the Commonwealth the opportunity

to decide whether it will enter a nolle prosequi or proceed with

a new trial.

                                   So ordered.
