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18-P-1619                                            Appeals Court

                COMMONWEALTH   vs.   JAMES KEARSE.


                          No. 18-P-1619.

        Suffolk.       November 1, 2019. - April 9, 2020.

            Present:   Agnes, Sullivan, & Blake, JJ.


Firearms. Constitutional Law, Investigatory stop, Reasonable
     suspicion, Search and seizure, Stop and frisk. Search and
     Seizure, Reasonable suspicion, Threshold police inquiry.
     Threshold Police Inquiry. Practice, Criminal, Motion to
     suppress.



     Indictments found and returned in the Superior Court
Department on May 24, 2016.

     A motion to suppress evidence was heard by Sharon E.
Donatelle, J., and a motion for reconsideration was considered
by her.

     An application for leave to prosecute an interlocutory
appeal was allowed by Elspeth B. Cypher, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Ian MacLean, Assistant District Attorney, for the
Commonwealth.
     Dennis M. Toomey for the defendant.
                                                                    2


     AGNES, J.   After observing the defendant, James Kearse,

standing in the vicinity of two other men who engaged in a

"quick hand shake," Brigido Leon, an officer in the Boston

Police Department's drug control unit (DCU), believed he had

observed a hand-to-hand drug transaction.    Officer Leon radioed

other officers to conduct an investigatory stop of the defendant

and his companion.    As a result of this stop, the defendant was

pat frisked twice, which ultimately lead to the discovery of a

loaded revolver.1    Following an evidentiary hearing, a judge of

the Superior Court allowed the defendant's motion to suppress

the firearm concluding that the stop of the defendant was not

constitutionally permissible.    A single justice of the Supreme

Judicial Court granted the Commonwealth leave to file an

interlocutory appeal from that order and transmitted the matter

to the Appeals Court.    See Mass. R. Crim. P. 15 (a) (2), as

amended, 476 Mass. 1501 (2017).    Concluding that police did not

have reasonable suspicion to stop the defendant in these

circumstances, we affirm.




     1 The defendant was subsequently charged with carrying a
loaded firearm without a license, G. L. c. 269, § 10 (n),
carrying a firearm without a license as a second offense, G. L.
c. 269, § 10 (a) & (d), and possession of ammunition without a
firearm identification card, G. L. c. 269, § 10 (h) (1).
                                                                    3


     Background.   We summarize the facts found by the motion

judge.2   Officer Leon had extensive experience in drug and

firearm related investigations.    On the afternoon of March 2,

2016, Officer Leon was conducting surveillance with other DCU

officers in the area of Talbot and Wales Streets in the

Dorchester section of Boston, which he described as a high crime

area with frequent stabbings, shootings, and drug activity.3

While on patrol, Officer Leon observed the defendant with a

companion, Domenic Yancy.   The judge did not make any findings

that the defendant or Yancy were known drug dealers or users, or

otherwise known to the police.    Officer Leon observed a third

unidentified male (third male) "hop a fence," "cut through a

yard," and approach the defendant and Yancy on the sidewalk of

Wales Street.   Yancy and the third male engaged in a "quick hand

shake" "as the [d]efendant stood approximately five feet away


     2 The Commonwealth does not challenge any of the subsidiary
findings of fact found by the motion judge. No transcript of
the evidence was prepared and filed with this court. In the
absence of such a transcript, there is no basis for an appellate
court to engage in "'interstitial' supplementation of [the]
motion judge's findings with uncontroverted facts."
Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015).

     3 Officers had received a tip that drugs were being
distributed out of a location near Kingsdale and Browning
Avenues. The tip was from an unknown source and the police did
not establish its reliability. See Commonwealth v. Upton, 394
Mass. 363, 375 (1985). The tip pertained to a different area
that the Commonwealth describes in its appellate brief as
"nearby" but no other information about the tip is in the
record.
                                                                    4


and looked around."   The judge specifically found that "[t]he

entire encounter lasted less than two to three minutes after

which the [third] male went back over the fence and the

[d]efendant and Yancy walked back through Franklin Field Park."

The judge also found that no interaction took place between the

defendant and the third male "and no additional evidence

presented relating to any interaction between [the defendant]

and Yancy either before or after the quick handshake."

    Believing that he had observed a hand-to-hand drug

transaction between Yancy and the third male, Officer Leon

radioed other officers to stop Yancy and the defendant.

Minutes later, five to six uniformed and plain-clothed officers

arrived to stop the defendant and Yancy a short distance away.

Unknown to Officer Leon, the responding officers pat frisked the

defendant and Yancy prior to Officer Leon's arrival.     No weapons

or contraband were discovered as a result of these patfrisks.

When Officer Leon arrived, both the defendant and Yancy were

unrestrained.   Officer Leon had a conversation with Yancy during

which Yancy told police he had marijuana on him and gave a

statement about where he was coming from that was not consistent

with what Officer Leon had just observed.

    During the conversation with Yancy, the defendant was

standing twenty to twenty-five feet away.   At this time, Officer

Leon observed the defendant move his body in such a way that he
                                                                     5


believed, based on his extensive training and experience, that

the defendant might be concealing a gun.      His observations

included that the pocket of the defendant's "coat was sagging as

if it contained something heavy," that the defendant would

"side-step" or reposition himself when an officer was near him,

and that the defendant was "checking himself" by patting himself

in a manner consistent with a person carrying a firearm without

a holster.    After making these observations, Officer Leon

proceeded to pat frisk the defendant over the defendant's black

puffy coat.   Because he was unable to accomplish a patfrisk of

the defendant due to his bulky layers, Officer Leon unzipped the

defendant's coat and pat frisked over the defendant's

sweatshirt.   At this time, Officer Leon "felt a hard object that

he immediately knew was the butt of a gun.      [Officer Leon]

lifted up the defendant's sweatshirt and saw a revolver."

    Discussion.     1.   The stop.   "In reviewing a ruling on a

motion to suppress, we accept the judge's findings of fact

absent clear error but conduct an independent review of his

ultimate findings and conclusions of law."      Commonwealth v.

Montoya, 464 Mass. 566, 576 (2013).      An investigatory stop is

permitted only where police have "reasonable suspicion that the

person seized has committed, is committing, or is about to

commit a crime."    Commonwealth v. DePeiza, 449 Mass. 367, 371

(2007).   See Terry v. Ohio, 392 U.S. 1, 21 (1968).     Reasonable
                                                                      6


suspicion "must be grounded in 'specific, articulable facts and

reasonable inferences [drawn] therefrom rather than on a

hunch.'"   DePeiza, supra, quoting Commonwealth v. Scott, 440

Mass. 642, 646 (2004).     "Reasonable suspicion is measured by an

objective standard, . . . and the totality of the facts on which

the seizure is based must establish 'an individualized suspicion

that the person seized by the police is the perpetrator' of the

crime under investigation."     Commonwealth v. Meneus, 476 Mass.

231, 235 (2017), quoting Commonwealth v. Warren, 475 Mass. 530,

534 (2016).   See Commonwealth v. Hilaire, 92 Mass. App. Ct. 784,

790-791 (2018).    The test is not whether the officer is acting

in good faith.    Commonwealth v. Grandison, 433 Mass. 135, 139

(2001).    Rather, "[t]he test is an objective one."   Commonwealth

v. Bacon, 381 Mass. 642, 643 (1980), quoting Commonwealth v.

Silva, 366 Mass. 402, 406 (1974).    In particular, a police

officer's suspicion that a crime has occurred will not be

regarded as reasonable under art. 14 of the Massachusetts

Declaration of Rights, unless "[t]hat suspicion [is] grounded in

specific, articulable facts and reasonable inferences [drawn]

therefrom rather than on a hunch" (quotation omitted).     Warren,

supra at 534.     "We have no hard and fast rule governing the

required level of particularity [of a description]; our

constitutional analysis ultimately is practical, balancing the

risk that an innocent person . . . will be needlessly stopped
                                                                    7


with the risk that a guilty person will be allowed to escape."

Commonwealth v. Lopes, 455 Mass. 147, 158 (2009).    Furthermore,

"[d]uring a stop for which there is constitutional

justification, . . . a patfrisk is permissible only where an

officer has reasonable suspicion that the suspect is armed and

dangerous."   Commonwealth v. Torres-Pagan, 484 Mass. 34, 36

(2020).

    Based on these principles and an examination of similar

cases, we conclude that Officer Leon's observations failed to

establish reasonable suspicion that the defendant was engaged in

criminal activity when the order to stop him was given by

Officer Leon.   The Commonwealth does not dispute that the

defendant was stopped, in the constitutional sense, when the

five to six officers stopped and pat frisked him in response to

Officer Leon's radio broadcast.   As we must determine whether

reasonable suspicion existed based on the information developed

by police by that time, see Commonwealth v. Matta, 483 Mass.

357, 360 (2019), the timing of the stop constrains us to exclude

from consideration the crucial facts that Officer Leon later

discovered Yancy was lying about his whereabouts before the stop

and Officer Leon's later observation that the defendant appeared

to be carrying a gun.

    In addition to presence in a high crime area, the only

factors identified by Officer Leon that are relevant to whether
                                                                   8


the reasonable suspicion standard was met are the following:

(1) during the afternoon hours an unidentified third male hopped

over a fence and cut through a yard; (2) Yancy and that male

engaged in a "quick hand shake" that Officer Leon believed to be

a drug transaction while the defendant stood nearby, looked

around, but did not interact with the third male or with Yancy;

and (3) after several minutes, the third male departed back over

the fence and the defendant and Yancy walked back through

Franklin Field Park.

    A quick hand shake in a high crime area between individuals

unknown to the police, even when viewed by an experienced

investigator, standing alone, does not provide more than a hunch

that a drug transaction occurred, and certainly no more than a

hunch that a person standing near the individuals who engaged in

the hand shake was a participant in criminal activity.     See

Meneus, 476 Mass. at 238 (simply because activity occurred in

high crime area does not for that reason mean that activity was

suggestive of criminal activity; inference that criminal

activity is underway must meet objective standard of

reasonableness).   As we observed in Commonwealth v. Ellis, 12

Mass. App. Ct. 476, 477 (1981), "[t]here was no evidence to

color the transaction."   In Ellis, we concluded that evidence

that a police officer observed several people conversing through

the window of the vehicle while it was in a parking lot, one of
                                                                    9


the individuals passing some paper money into the vehicle, and

one of the occupants of the vehicle giving something to this

individual, was not sufficient to constitute reasonable

suspicion that a drug transaction had occurred.   Id.    Similarly,

in Commonwealth v. Clark, 65 Mass. App. Ct. 39, 40-41 (2005), a

police officer driving past a bar observed a person he knew to

be a bartender at a different bar walk over to the defendant,

who was unknown to the officer.   It was 11:20 P.M. in a high

crime area.   The officer saw the defendant hand "an unidentified

item" to the other man, and then observed the defendant counting

money.   In concluding that these observations did not justify

the subsequent stop of the defendant, we noted that "[a]part

from the fact that the general area was known to be a high crime

area, there is nothing in this record to suggest the officer had

any specific information suggesting that a drug sale was likely

to occur at this location."   Id. at 44.   The facts before us in

this case are distinguishable from other cases such as

Commonwealth v. Kennedy, 426 Mass. 703, 708-711 (1998), and

Commonwealth v. Santaliz, 413 Mass. 238, 241-242 (1992), in

which justification for an arrest or a stop existed because "the

'silent movie' observed by an experienced narcotics investigator

reveal[ed] a sequence of activity consistent with a drug sale."

Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 452 (2015).
                                                                    10


    It is not necessary in cases such as this that the police

officer observe an exchange of 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.

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

Commonwealth v. Hernandez, 448 Mass. 711, 714 (2007) (reasonable

suspicion existed where, prior to shaking hands, police observed

defendant pacing back and forth in high drug trafficking area

before giving person item hidden in his shoe).     Indeed, "other

than the normal social intercourse that occurs with some

frequency on the streets of Boston's neighborhoods, nothing [the

officer observed] supports the claim of conduct consistent

with a drug transaction."    Commonwealth v. Ilya I., 470 Mass.

625, 631 (2015).

    The fact that Officer Leon was an experienced drug

investigator, while relevant to an assessment of reasonable

suspicion, is not a substitute for details about how drug

transactions occur based on that experience.    Compare

Commonwealth v. Gomes, 453 Mass. 506, 511-512 (2009)

(experienced drug investigator observed person who participated

in hand-to-hand exchange of something also ingest something that

was in his hand as police approached; officer explained that

"drug dealers and users often ingested drugs to prevent the

recovery of evidence").     Subjecting a quick handshake, without
                                                                     11


more, to the scrutiny of a nonconsensual police encounter is not

consistent with the reality that "law-abiding citizens live and

work in high-crime areas.     Those citizens are entitled to the

protections of the Federal and State Constitutions, despite the

character of the area."     Id. at 512, quoting Commonwealth v.

Holley, 52 Mass. App. Ct. 659, 663 (2001).     See Meneus, 476

Mass. at 238.

    In addition, we note that this is not a case where "the

aggregation of otherwise innocent activities may give rise to

reasonable suspicion."     Commonwealth v. Stephens, 451 Mass. 370,

385 (2008).     Here, the third male's hopping a fence to meet

Yancy and the defendant standing nearby did not meaningfully add

to the calculus.     Contrast id. at 384 (reasonable suspicion

existed where defendants followed "'the precise script of the

typical illegal narcotic transaction' in that area of Lawrence:

. . . i.e., had met at a parking lot in an area known for

illicit drug dealing and moved to a 'more remote location' to

complete the illegal transaction").     Nor is this a case where a

participant to the alleged drug transaction was known to police.

Contrast Commonwealth v. Sanders, 90 Mass. App. Ct. 660, 665

(2016) (concluding police officer could have inferred person who

reached hand into vehicle window was engaged in drug transaction

"with the addition of the remaining and critically important

factor that the defendant was known to the officer as a person
                                                                 12


who previously had been arrested for distributing cocaine").

Contrast also Commonwealth v. Stewart, 469 Mass. 257, 261 (2014)

(reasonable suspicion existed where officer knew defendant had

been arrested on drug distribution charge three years earlier in

same area and observed "three persons follow[] the defendant

down a narrow street often used by drug users, with [a] woman

counting currency as she walked, and then all four huddled

briefly together in a doorway, before they dispersed"); Freeman,

87 Mass. App. Ct. at 449 (probable cause standard established

"[b]ased on the investigator's observation of two men on a

street corner counting money, one of whom was known to be a drug

user, the nature of the exchange that took place moments later

between one of those two men and the defendant, and the location

in which the events took place").

    Instead, we view this case as close to, but even less

compelling than, Clark, 65 Mass. App. Ct. at 44, where an

experienced officer witnessed the defendant, who was not a known

drug dealer or user, standing outside a bar at approximately

11:20 P.M. in a high drug area.   A different man, also not a

known drug user, later came out of the bar and approached the

defendant, who handed him "an item," and after which the

defendant was observed counting money.   Id.   There, we held that

reasonable suspicion was lacking where, apart from the general

high crime nature of the area, there was nothing "to suggest the
                                                                  13


officer had any specific information suggesting that a drug sale

was likely to occur at this location" and "the officer did not

suspect that criminal activity was afoot due to any furtive or

unusual movements by the defendant or anyone else who interacted

with him."   Id. at 44-45.   Here, by contrast, the encounter took

place in the afternoon and there was no observation of an item

being passed, or money being counted.

     While the police undoubtedly could have continued their

investigation by way of continued observation or a field

interrogation observation,4 see Commonwealth v. Murphy, 63 Mass.

App. Ct. 11, 17 (2005), an immediate, nonconsensual stop of this

defendant was not constitutionally justified.

     2.   The frisk.   Even if we concluded that Officer Leon's

observations were sufficient to constitute reasonable suspicion


     4 "A 'field interrogation observation' [FIO] has been
described as an interaction in which a police officer identifies
an individual and finds out that person's business for being in
a particular area." Commonwealth v. Lyles, 453 Mass. 811, 813
n.6 (2009). FIOs are deemed consensual encounters because the
individual approached remains free to terminate the conversation
at will. See id. at 815. See also Commonwealth v. Cao, 419
Mass. 383, 388 (1995) ("The FIO was conducted in public, while
the defendant was walking with friends in a parking lot, not
while the defendant was in a confined space or in a car. [The
officer] testified that during the encounter the defendant spoke
with his friends and did not appear to be under any physical
distress nor did he indicate at any time that he wished to
leave. Under these circumstances, we cannot say that a
reasonable person would have been sufficiently intimidated so as
to feel that he or she could not terminate the encounter and
walk away. Therefore, there was no seizure").
                                                                     14


that the defendant was a participant in a drug transaction,

there was no evidence at the point when he was first pat frisked

that the defendant was armed.     "The only legitimate reason for

an officer to subject a suspect to a patfrisk is to determine

whether he or she has concealed weapons on his or her person."

Torres-Pagan, 484 Mass. at 39.5

     3.   Suppression.    The Commonwealth argues that even if the

first patfrisk was impermissible, evidence discovered as a

result of the later patfrisk should not be suppressed because it

was discovered independent of any prior illegality.     However,

the second patfrisk exploited information obtained as a result

of the initial stop.6    This proposition is not disputed by the

Commonwealth, and there was no intervening event that broke the

chain of causation.     Having concluded that the initial stop was




     5 The result we reach turns on our view that the initial
stop ordered by Officer Leon was unlawful. Nothing in our
opinion should be understood to mean that Officer Leon's
observations that a pocket of the defendant's coat was sagging
as if it contained a heavy object and that the defendant moved
as if he was trying to conceal something would not establish, in
other circumstances, reasonable suspicion that the defendant was
armed and dangerous. See DePeiza, 449 Mass. at 371-372.

     6 "In determining whether evidence derived from an illegal
search or seizure must be suppressed, the issue is not whether
but for the prior illegality the evidence would not have been
obtained, but whether the evidence has been come at by
exploitation of [that] illegality or instead by means
sufficiently distinguishable to be purged of the primary taint"
(quotation and ellipses omitted). Commonwealth v. Fredericq,
482 Mass. 70, 78 (2019).
                                                               15


not justified by reasonable suspicion that a crime had been,

was, or was about to be committed, the evidence was properly

suppressed.

                                   Order allowing motion to
                                     suppress affirmed.

                                   Order denying motion to
                                     reconsider affirmed.
