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SJC-12699

                 COMMONWEALTH   vs.   ONAXIS BARRETO.



      Suffolk.       September 6, 2019. - December 23, 2019.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                          & Kafker, JJ.


Controlled Substances. Constitutional Law, Search and seizure,
     Investigatory stop, Reasonable suspicion. Search and
     Seizure, Motor vehicle, Reasonable suspicion. Evidence,
     Anonymous statement, Corroborative evidence. Practice,
     Criminal, Motion to suppress.



     Indictment found and returned in the Superior Court
Department on August 28, 2014.

     A pretrial motion suppress evidence was heard by Kenneth W.
Salinger, J., and a motion for reconsideration was considered by
him.

     An application for leave to prosecute an interlocutory
appeal was allowed by Hines, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. After review by the Appeals Court, the
Supreme Judicial Court granted leave to obtain further appellate
review.


     Eduardo Masferrer for the defendant.
     Erin D. Knight, Assistant District Attorney (Kathleen
Celio, Assistant District Attorney, also present) for the
Commonwealth.
                                                                    2




    BUDD, J.   The defendant, Onaxis Barreto, was charged with

trafficking in cocaine in violation of G. L. c. 94C, § 32E (b),

following a search of his motor vehicle.   The defendant filed a

motion to suppress the evidence found in the vehicle, contending

that the search took place after an unlawful exit order.      A

judge in the Superior Court denied the defendant's motion

following an evidentiary hearing, and the defendant filed an

interlocutory appeal.   The Appeals Court reversed the denial in

Commonwealth v. Barreto, 94 Mass. App. Ct. 337 (2018).   We

granted the Commonwealth's application for further appellate

review.

    As did the Appeals Court, we conclude that based on the

evidence presented at the suppression hearing, the exit order

that precipitated the search of the vehicle was unjustified.      We

therefore reverse the order of the motion judge denying the

defendant's motion to suppress.

    Background.    The motion judge made the following factual

findings.   See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431

(2015).   Police received a tip from an undisclosed source that a

green Volvo station wagon containing a "large" amount of

narcotics would be located near a particular intersection in the
                                                                     3


Roxbury neighborhood of Boston.1    As a result, police set up

surveillance near the intersection indicated by the tipster.

Soon thereafter, officers observed a green Volvo station wagon

approach the intersection, turn left without signaling, and park

approximately fifty feet away.

     The defendant, the vehicle's driver and sole occupant,

leaned down and appeared to reach toward the floor of the

passenger side of the vehicle.     An unidentified pedestrian

approached the vehicle from a nearby apartment building.    When

the pedestrian reached the driver's window, the two men appeared

to speak.   The pedestrian then leaned toward the vehicle and

moved his arms "in a manner consistent with the two men

exchanging something"; however, officers did not observe the

hands of the two men come together.     The interaction lasted

about thirty seconds, after which the pedestrian returned to the

apartment building.   Police did not observe anything in the

pedestrian's hands at any time during or after the interaction.

     The defendant resumed driving for a short distance until

officers signaled for him to stop.    At this point, at least four

officers and three police vehicles had arrived.    When engaged by

two of the officers, the defendant avoided making eye contact.




     1 As discussed in detail infra, no further information was
provided during the hearing regarding the reliability or
veracity of the tipster.
                                                                        4


Officers observed that the defendant was breathing heavily and

looking in his rear and side view mirrors at the officers and

vehicles behind him.

    An officer issued an exit order to the defendant.        As the

defendant got out of his vehicle, the officer saw what appeared

to be a roll of United States currency inside a clear plastic

bag in the storage compartment of the driver's side door.         A

subsequent patfrisk revealed no weapons or contraband.       Officers

then searched the interior of the vehicle, and a drug-sniffing

dog alerted for narcotics on the front passenger's seat.       Police

towed the vehicle to a police station, where a search of a box

hidden inside the front passenger's seat revealed a "large

amount" of cocaine inside plastic bags and several large stacks

of cash.

    Discussion.        Because the search of the defendant's vehicle

was a direct result of observations police made after stopping

his vehicle and issuing an exit order, we must examine the

constitutionality of both the stop and the exit order.       See Wong

Sun v. United States, 371 U.S. 471, 484-488 (1963); Commonwealth

v. Tavares, 482 Mass. 694, 701-702, 706 (2019).

    1.     The stop.    Police may effect a motor vehicle stop based

on reasonable suspicion of criminal activity, or based on an

observed civil infraction of the traffic laws.       See, e.g.,

Commonwealth v. Buckley, 478 Mass. 861, 872 (2018); Commonwealth
                                                                     5


v. Alvarado, 423 Mass. 266, 268 (1996).     The Commonwealth

maintains that the informant's tip, together with the

observations police made of the defendant's interactions with an

unknown pedestrian, provided reasonable suspicion that the

defendant had engaged in a drug transaction, thereby justifying

the stop.    We are not convinced by the Commonwealth's argument

on this point; however, as discussed infra, we conclude that the

stop was authorized based on police observation of a motor

vehicle infraction committed by the defendant.

     a.     The tip.   Although the Commonwealth contends that the

information provided by the tipster is properly part of the

reasonable suspicion calculus, this was not the position the

Commonwealth took at the motion hearing.     At that time, the

prosecutor indicated that the Commonwealth would use the tip

only for "context" to "explain why the police were there."2


     2 At the beginning of the hearing on the defendant's motion
to suppress, the prosecutor stated that she would not seek to
"establish Aguilar-Spinelli" with the unidentified source's tip.
See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v.
Texas, 378 U.S. 108 (1964). Rather, the tip would "explain why
the police were there," and the prosecutor indicated that she
would object to any questions regarding the source of the tip.

     Following up, the motion judge sought to confirm the
prosecutor's position by asking whether "the Commonwealth will
not be attempting in any way to rely" on the tip to justify the
stop, exit order, or search. The prosecutor responded that the
tip "provides context and stuff can be corroborated," that the
tip "does not provide any sort of basis on its own for . . . any
legal justification," and reiterated that she would object to
questioning on the tip's source.
                                                                    6


     To be sure, it is common for the Commonwealth to withhold

details about a confidential police informant who has provided a

tip in order to ensure that the identity of the tipster is not

revealed inadvertently.   See, e.g., Commonwealth v. Madigan, 449

Mass. 702, 705-706 (2007).   However, withholding information can

affect the reasonable suspicion analysis depending upon the

amount and type of information withheld.   See Commonwealth v.

Costa, 448 Mass. 510, 515 (2007); Alvarado, 423 Mass. at 274;

Commonwealth v. Lyons, 409 Mass. 16, 18-19 (1990).

     Here, the Commonwealth presented no information at all

regarding the basis of knowledge or the reliability of the

confidential informant.   In fact, the prosecutor represented

that the Commonwealth would use the tip solely for "context,"

would object to any questions regarding the "source" of the tip,

and would not seek to "establish Aguilar-Spinelli" with the tip.

See Costa, 448 Mass. at 515 & n.9 (articulating "Aguilar-

Spinelli" test).   For this reason, the defendant did not

challenge the reliability of the tip,3 and the motion judge did




     Defense counsel indicated that he understood that the
prosecution would use the tip "for context only," and that the
tip would not be used "under Aguilar-Spinelli to [support] the
stop or search." Defense counsel further agreed not to cross-
examine any of the Commonwealth's witnesses on the informant's
identity or the details of the tip.

     3 Had the Commonwealth made clear that it would seek to use
the tip to support the legality of the stop, exit order, and
                                                                     7


not consider it in analyzing the justification for the stop,

exit order, and search.    Accordingly, we similarly do not

consider the tip in the reasonable suspicion analysis on appeal.4

     b.     The defendant's interaction with the unidentified

pedestrian.    The Commonwealth also points to police observations

of the defendant interacting with an unidentified pedestrian as

providing reasonable suspicion of criminal activity and, thus,

justification for the stop.     As mentioned supra, "[a] police

officer may stop a vehicle in order to conduct a threshold

inquiry if [the officer] has a reasonable suspicion that the

occupants have committed, are committing, or are about to commit

a crime."    Commonwealth v. Wren, 391 Mass. 705, 707 (1984), and

cases cited.    However, "[the officer's] suspicion must be based




search, the defendant would have been entitled to cross-examine
the testifying officers in an attempt to assess the informant's
basis of knowledge and reliability. See Commonwealth v.
Bakoian, 412 Mass. 295, 308 (1992).

     4 At the end of the motion hearing, the prosecutor stated
that the tip "could be corroborated," but that "in and of
itself, [the tip] couldn't have provided any justification." To
the extent that these statements could be understood to mean
that the Commonwealth intended to demonstrate the informant's
reliability and basis of knowledge through independent police
corroboration of the tip's details, see Commonwealth v. Lyons,
409 Mass. 16, 19 (1990), this position would be inconsistent
with the prosecutor's earlier representations. It also would
have been materially unfair to use the tip to support the stop
and search on this basis, especially because defense counsel
relied on the prosecutor's previous representations in not
cross-examining the Commonwealth's witnesses on the credibility
of the tip.
                                                                   8


on specific, articulable facts and reasonable inferences drawn

therefrom.   A hunch will not suffice."     Id.

    The motion judge found that the police made the following

observations:

    "[The defendant] had stopped his vehicle on a public
    street; a second man immediately left the nearest building
    and walked to the driver's door of [the defendant's]
    vehicle[;] as the second man approached [the defendant]
    leaned down to his right as if he were reaching toward the
    floor by the front passenger seat; [the defendant] sat back
    up and interacted for no more than thirty seconds with the
    second man, who stood immediately outside the driver's door
    of [the defendant's] vehicle; during this interaction the
    second man leaned toward the [vehicle] as if he were
    reaching into the vehicle; and after no more than [thirty]
    seconds [the defendant] drove off and the second man walked
    back into the residential building he had emerged from a
    moment earlier."

We note that, although the motion judge did not consider the

confidential informant's tip in his analysis of the propriety of

the stop, he nevertheless concluded that the police observations

provided reasonable suspicion that the defendant had sold

illegal narcotics to the pedestrian.      We disagree.

    In this case, neither the defendant nor the pedestrian was

known to the officers conducting surveillance.      In addition, the

area in which the men met was not known for drug activity.

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

(reasonable suspicion for stop where defendant with prior drug

arrest was observed huddled with others briefly at site known

for drug use); Commonwealth v. Levy, 459 Mass. 1010, 1011-1012
                                                                   9


(2011) (reasonable suspicion for stop after individual made call

on public telephone used frequently for drug transactions and

driver arrived shortly thereafter to pick up individual,

traveled around block, and then dropped individual off).

     We also note that, although the pedestrian faced the

defendant and moved one or both of his arms in a manner

consistent with an exchange, the officers did not observe an

object change hands and did not observe anything in the

pedestrian's hands either before or after meeting the defendant.5

As the Appeals Court rightly pointed out, the observed movements

were just as consistent with any number of innocent activities,

such as briefly greeting an acquaintance or asking for

directions after looking at a map, as they were with an illegal

drug transaction.   Barreto, 94 Mass. App. Ct. at 343-344.   See

Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44-45 (2005) (no

reasonable suspicion for stop where individual in "high drug

area" left bar, approached defendant, handed "an item" to

defendant, and then returned to bar as defendant appeared to

count money); Commonwealth v. Ellis, 12 Mass. App. Ct. 476, 477




     5 Although we have not adopted a per se rule that requires
officers to be able to identify whether anything is exchanged in
order to have reasonable suspicion to believe that a drug
transaction has taken place, see Commonwealth v. Stewart, 469
Mass. 257, 263 (2014), citing Commonwealth v. Kennedy, 426 Mass.
703, 711 (1998), such an observation would be important in the
reasonable suspicion analysis, see Kennedy, supra.
                                                                      10


(1981) (no reasonable suspicion for stop where pedestrian passed

what officer believed to be money through defendant's vehicle

window and "something" was returned to pedestrian from inside

vehicle).    In short, the observations made, without more, were

insufficient for a stop on suspicion of criminal activity.

     c.     The motor vehicle infraction.    Although reasonable

suspicion of criminal activity did not exist for the stop of the

defendant's vehicle, the stop was nevertheless within the bounds

of the law.    Prior to pulling the defendant over, police

observed the defendant make a left turn without using the

vehicle's directional signal.     As police may effect a stop after

observing a motor vehicle infraction regardless of the officer's

underlying motivation, the stop here was valid.6       See Buckley,

478 Mass. at 873; G. L. c. 90, § 14B (failure to signal prior to

turning).    Having determined that the stop was lawful, we turn

to an analysis of the exit order that followed.

     2.     The exit order.   An exit order is not constitutionally

justified based solely on a traffic violation.       See Commonwealth

v. Amado, 474 Mass. 147, 151 (2016).        Thus, to be lawful, the




     6 "An appellate court is free to affirm a ruling on grounds
different from those relied on by the motion judge if the
correct or preferred basis for affirmance is supported by the
record and the findings." Commonwealth v. Va Meng Joe, 425
Mass. 99, 102 (1997).
                                                                   11


exit order can only be justified based on events or observations

made by the officers after they stopped the defendant's vehicle.

    Where a vehicle has been stopped for an observed traffic

violation, an exit order issued to a driver or passenger of the

vehicle is justified if (1) police are warranted in the belief

that the safety of the officers or others is threatened; (2)

police have reasonable suspicion of criminal activity; or (3)

police are conducting a search of the vehicle on other grounds.

See Amado, 474 Mass. at 151-152.   As nothing in the facts found

by the motion judge indicates that independent grounds for a

search of the vehicle existed at the time of the stop, we look

at whether the exit order was issued properly based on safety

concerns or on reasonable suspicion of criminal activity once

police stopped the defendant.   Upon review, we conclude that

there was no valid basis for the exit order.

    a.   Safety concerns.   In determining whether an exit order

was justified based upon safety concerns, "we ask whether a

reasonably prudent [person] in the [officer's] position would be

warranted in the belief that the safety of the police or that of

other persons was in danger" (quotation and citation omitted).

Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999).   In

reviewing the facts, we conclude that the answer to that

question is "no."
                                                                  12


     When the defendant was pulled over, police observed that he

was breathing heavily, he avoided making eye contact when

answering questions, and he appeared nervous.   He also looked in

his rear view and side view mirrors at the several police

officers and vehicles that had arrived.   At the same time, the

defendant responded to the officers' questions,7 complied with

all requests, and made no movements consistent with reaching for

a weapon after he was stopped.   Compare Commonwealth v.

Feyenord, 445 Mass. 72, 76 (2005), cert. denied, 546 U.S. 1187

(2006) (exit order justified where defendant failed to produce

identification, occupants of vehicle outnumbered officer, and

defendant was visibly nervous); Commonwealth v. Stampley, 437

Mass. 323, 326-328 (2002) (exit order justified where occupants

outnumbered officer and defendant in rear seat repeatedly

reached beneath seat).




     7 Before issuing the exit order, an officer asked the
defendant in English to state his date of birth; the defendant
responded with a year. When the officer asked for a full date
of birth, the defendant stated that he did not understand
English. In closing at the motion to suppress hearing, the
Commonwealth argued that the fact that the defendant initially
answered questions in English before stating that he did not
understand English supported the officers' reasonable suspicion
and safety concerns. We note that the defendant's behavior was
consistent with an individual who is not fluent in English
attempting to cooperate with the police. The fact that the
defendant attempted but was unable to answer fully police
questioning due to a language barrier did not, absent more,
contribute to safety concerns or suspicion of criminal activity.
                                                                  13


    Although "it does not take much for a police officer to

establish a reasonable basis to justify an exit order or search

based on safety concerns," Gonsalves, 429 Mass. at 664, the mere

fact that an officer observes a driver's "nervousness and

fidgeting," without more, does not warrant a belief that the

safety of the officers or others is threatened, id. at 668-669.

Indeed, many would likely be nervous in response to being

stopped and approached by multiple police vehicles and officers.

The exit order was not justifiable on the basis that police

reasonably believed the defendant posed a safety threat.    See

Commonwealth v. Brown, 75 Mass. App. Ct. 528, 534 (2009)

("nervous or anxious behavior in combination with factors that

add nothing to the equation will not support a reasonable

suspicion that an officer's safety may be compromised");

Commonwealth v. Williams, 46 Mass. App. Ct. 181, 184-185 (1999)

(exit order improper where based solely on observation that

defendant "appeared extremely 'nervous'").

    b.   Reasonable suspicion of criminal activity.   Just as

police did not have reasonable suspicion of criminal conduct

prior to stopping the defendant, we similarly conclude that the

defendant's behavior after the stop did not provide the

requisite suspicion of unlawful activity to justify an exit

order on that basis.   See Amado, 474 Mass. at 151-152.    The only

additional information that police had after executing the stop
                                                                    14


that they did not have prior to the stop was the fact that the

defendant appeared to be nervous and avoided eye contact while

conversing with police.    "It is common, and not necessarily

indicative of criminality, to appear nervous during even a

mundane encounter with police . . . ."     Commonwealth v. Cruz,

459 Mass. 459, 468 (2011).    Given that police did not have

reasonable suspicion prior to the stop, the sole additional fact

that the defendant appeared nervous after the stop cannot create

reasonable suspicion.     See Commonwealth v. Torres, 424 Mass.

153, 161 (1997) ("Adding up eight innocuous observations --

eight zeros -- does not produce a sum of suspicion that

justifies . . . an order of persons out of their car . . .").

    Conclusion.   Because the exit order was not lawfully

issued, the evidence obtained from the subsequent search should

have been suppressed as fruit of the poisonous tree.     Tavares,

482 Mass. at 701-702, 706, citing Wong Sun, 371 U.S. at 486-488.

The order denying the defendant's motion to suppress evidence

obtained as a result of the searches of his vehicle is reversed.

The matter is remanded to the Superior Court for further

proceedings consistent with this opinion.

                                     So ordered.
