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17-P-1009                                              Appeals Court

                 COMMONWEALTH   vs.   WILFREDO SANTIAGO.


                             No. 17-P-1009.

            Essex.      April 4, 2018. - August 22, 2018.

                 Present:   Rubin, Sacks, & Singh, JJ.



Firearms. Constitutional Law, Search and seizure, Probable
     cause, Arrest. Search and Seizure, Motor vehicle, Probable
     cause, Arrest. Probable Cause. Arrest.



     Indictments found and returned in the Superior Court
Department on October 15, 2014.

     A pretrial motion to suppress evidence was heard by James
F. Lang, J., and the cases were tried before Mary K. Ames., J.


     Edward Crane for the defendant.
     David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.


     SACKS, J.    Following a jury trial, the defendant was

convicted of possession of a firearm, second offense,1 and


     1 After a jury trial on the underlying charge, the defendant
pleaded guilty to the subsequent offense portion of the
indictment.
                                                                     2


possession of a loaded firearm.    On appeal, the defendant argues

that a Superior Court judge (motion judge) erred in denying his

motion to suppress the firearm and some cash discovered during a

stop of the vehicle in which the defendant was a passenger.     The

defendant asserts that police conduct during the stop --

including boxing the vehicle in and approaching with guns drawn

-- escalated the encounter to an arrest, for which probable

cause was lacking.

    After considering the circumstances as a whole, we conclude

that the officers' show of force was sufficiently significant to

convert the stop to an arrest.    Because the Commonwealth

concedes that there was no probable cause to arrest the

defendant at the time, the motion to suppress should have been

allowed.   Accordingly, we reverse the convictions.

    1.     Background.   We summarize the motion judge's detailed

findings of fact, supplementing with additional facts from

testimony that the judge implicitly credited.     See Commonwealth

v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818

(2008).    Here, the defendant concedes that police had reasonable

suspicion to conduct an investigatory stop of the vehicle in

which he was traveling, based on evidence of drug dealing as

well as traffic violations.    We therefore focus our recitation

on the facts relevant to the defendant's challenge on appeal.
                                                                     3


     In the summer of 2014, State police were conducting an

investigation into suspected drug dealing in Lawrence, centering

on the defendant, and using a confidential informant.    During

the investigation, officers determined that the defendant was

known to the Lawrence police and had a prior conviction of a

firearms offense.    The confidential informant told police that

the defendant was selling cocaine and was "involved with

firearms."

     On August 6, 2014, police initiated surveillance of the

defendant based on the informant's report that the defendant

would be traveling to Lynn to pick up cocaine to bring to

Lawrence.    The surveillance team comprised multiple officers

from the State police, the Federal Drug Enforcement

Administration, and the Federal Bureau of Alcohol, Tobacco,

Firearms and Explosives, in unmarked vehicles.    During the

course of the surveillance, officers observed the defendant,

along with three other men about whom police apparently had no

information,2 depart a home in Lawrence in a red GMC Envoy sport

utility vehicle.    The defendant was seated in the right rear

passenger's seat.    The surveillance team followed the GMC

surreptitiously.    After making a number of stops in Lawrence and

then in Lynn, at about 6:00 P.M. the defendant and his

     2 There was no evidence at the suppression hearing that
officers knew the men's identities or of any criminal history
they may have had.
                                                                     4


companions proceeded in the GMC to Route 114 westbound toward

Lawrence.

    When the GMC reached a point where the road widened from

one to two lanes and motorists often accelerate to pass slower

vehicles, it suddenly more than doubled its speed, operating

well over the posted speed limit.   Believing that the GMC's

occupants had detected the surveillance, officers decided to

stop the GMC, rather than waiting for its expected return to

Lawrence, as they had originally planned.

    Officers contacted a uniformed State trooper who was

patrolling the area in a marked cruiser and asked him to stop

the vehicle.   The trooper observed the GMC cross the double

yellow line in the middle of the road twice.   He turned on his

cruiser's flashing lights, and the GMC pulled over promptly.

The trooper's cruiser and at least three other unmarked police

cars moved in around the GMC, effectively boxing it in.

    Four or five officers simultaneously approached the GMC's

four doors, yelling for the occupants to raise their hands.     At

least two of the officers had their guns drawn.   As one officer

neared the GMC, he observed the defendant, who was still sitting

in the right rear passenger's seat, reach forward, pull open the

seat-back pocket in front of him, and stuff an object into it.

Suspecting that the defendant had attempted to conceal a

firearm, the officer opened the left rear door and ordered the
                                                                       5


rear seat passengers not to move.      He observed a firearm in the

seat-back pocket in front of the defendant.

     Officers ordered the defendant and other passengers out of

the GMC and recovered a loaded revolver from the seat-back

pocket.   The defendant was arrested and searched, and just under

$5,500 in cash was found on his person.      No drugs were found.

     2.   Discussion.   The defendant agrees on appeal that the

stop of the GMC was lawful and supported by observed traffic

violations as well as reasonable suspicion of drug dealing.       He

maintains, however, that his motion to suppress was improperly

denied because police conduct escalated the seizure to an arrest

without probable cause.3   We agree.

     In reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings unless clearly erroneous, see

Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439

U.S. 280 (1978), and make an "independent determination on the

correctness of the judge's 'application of constitutional

principles to the facts as found.'"      Commonwealth v. Haas, 373

Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986), quoting from

Brewer v. Williams, 430 U.S. 387, 403 (1977).




     3 Based in part on concerns about the reliability of the
confidential informant, the motion judge concluded that
"[u]nquestionably, the police did not have probable cause to
arrest at the time that the stop was made," and on appeal, the
Commonwealth concedes the point.
                                                                   6


    "The Constitution does not require officers 'to gamble with

their personal safety,' Commonwealth v. Robbins, 407 Mass. 147,

152 (1990), and police officers conducting a threshold inquiry

may take reasonable precautions, including drawing their

weapons, when the circumstances give rise to legitimate safety

concerns."   Commonwealth v. Haskell, 438 Mass. 790, 794 (2003).

"Such steps do not automatically turn a stop into an arrest."

Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 556 (2015),

quoting from Commonwealth v. Williams, 422 Mass. 111, 117

(1996).

    Whether a police seizure has been transformed into an

arrest "depends on the proportional relationship of the degree

of intrusiveness on the defendant to the degree of suspicion

that prompted the intrusion."   Commonwealth v. Willis, 415 Mass.

814, 819 (1993).   This determination is highly fact-specific,

and in assessing the reasonableness of the officers' conduct, we

view the facts and circumstances "as a whole."   Williams, 422

Mass. at 116.

    We have held that "[a]n approach with drawn guns is

generally thought excessive in the absence of any suggestion

that the defendant is armed or other circumstances suggesting

the possibility of violence."   Commonwealth v. Fitzgibbons, 23

Mass. App. Ct. 301, 308 (1986).   Even with information

suggesting that a defendant possesses a firearm illegally,
                                                                    7


however, police are not generally justified in drawing their

guns in the absence of additional "fear-provoking

circumstances."     Commonwealth v. Bottari, 395 Mass. 777, 782

(1985).   When considering a vehicle stop, "we also look to the

number of police used to effectuate the stop and whether the

movement of the automobile was impeded."     Commonwealth v.

Sanderson, 398 Mass. 761, 766 (1986).

    Here, the police response, viewed as whole, included the

presence of multiple cars and officers, the use of four police

vehicles to box the GMC in, and the approach of at least two

officers with guns drawn.     We conclude that this was

disproportionate "to the degree of suspicion that prompted the

intrusion" and constituted an arrest.     Willis, 415 Mass. at 819.

The surrounding circumstances here lacked factors present in

other cases that held such precautions justified even absent

probable cause.

    Here, "[t]he officers' use of force was not precipitated by

any actions of the defendant[], nor did the officers testify

that they feared for their safety or the safety of others at the

time they approached the [GMC] with their guns drawn."     Bottari,

395 Mass. at 782.     Though it is certainly relevant that police

had information as to the defendant's prior nonspecific

"involvement" in firearms and knew the defendant to have had a

prior firearms conviction, they had no particular information
                                                                     8


suggesting that he possessed a firearm at the time of the stop.

Cf. Willis, 415 Mass. at 815-816, 819 (officers had detailed

information that defendant with previous arrest for armed

robbery was carrying loaded stolen gun at time of seizure);

Haskell, 438 Mass. at 793-794 (officers received reliable report

that defendant was seen publicly loading handgun in high-crime

area at 2:00 A.M.); Commonwealth v. McKoy, 83 Mass. App. Ct.

309, 314 (2013) (defendant and companion were coming from

direction of reported shooting, were only persons on street, and

had hands in pockets).

    The officers had no information about any history of

violent conduct on the part of the defendant.   Cf. Commonwealth

v. Ruiz, 51 Mass. App. Ct. 346, 347-351 (2001) (police show of

force did not transform seizure into arrest, where defendants

were suspected of just having committed home invasion).     Though

police information regarding the defendant's possible drug

dealing is relevant in our analysis, "case law often observes

that the mere fact that drugs are involved does not support the

view that guns or other weapons are present."   Commonwealth v.

Cabrera, 76 Mass. App. Ct. 341, 348 (2010).   See Commonwealth v.

Washington, 449 Mass. 476, 482 (2007) ("we are reluctant to

adopt a blanket rule that all persons suspected of drug activity

are to be presumed armed and dangerous for constitutional

purposes").
                                                                    9


     We acknowledge, as the Commonwealth argues, "that drug

offenses frequently involve drug dealers being armed and that,

in many cases, shootings and killings occur when a drug dealer

is confronted by police, when a drug deal goes 'bad,' or when

others try to steal the drugs."   Commonwealth v. Hines, 449

Mass. 183, 189 (2007).    See Commonwealth v. Cannon, 449 Mass.

462, 470 (2007) (same).   But neither Hines nor Cannon involved

any question whether a police display of force was

disproportionate in particular circumstances.4   Neither decision

suggested that police are justified in drawing their weapons

whenever they approach a drug suspect.5   Cf. Commonwealth v.

Jimenez, 438 Mass. 213, 216-220 (2002) (that drug dealers may

often have guns does not justify no-knock search warrant in

every drug case; what is required is probable cause to believe




     4 The court in Hines made the quoted observation in support
of its interpretation of a statute providing enhanced punishment
for felonies when a firearm was involved. Hines, 449 Mass. at
189. In Cannon, the court repeated the observation in the
course of holding that the jury could reasonably infer that the
felony-murder defendant knew that one of his coventurers was
carrying a weapon when they robbed a drug dealer. Cannon, 449
Mass. at 470.

     5 The Commonwealth also relies on Commonwealth v. Moses, 408
Mass. 136, 143 (1990) (drug trafficking is "fraught with
violence"), and Commonwealth v. Va Meng Joe, 40 Mass. App. Ct.
499, 510 n.13 (1996), S.C., 425 Mass. 99 (1997) (noting
"frequent association of guns with drug dealing"). Both of
those decisions involved protective searches for weapons of drug
suspects who had just made furtive gestures, not (as here)
officers' display of their own weapons in effecting stops.
                                                                  10


officer safety would be jeopardized by observing knock and

announce rule in the particular circumstances).

     At the time of the show of force here, police had not

observed any furtive conduct by the defendant or his companions.

Concerns about flight raised by the GMC's increase in speed

would have been substantially alleviated when the vehicle

promptly and uneventfully stopped when signaled by the marked

cruiser.6   Nor had any of the GMC's four occupants refused any

police orders.   Cf. Commonwealth v. Torres, 433 Mass. 669, 670-

671 (2001) (officer did not escalate stop to arrest by drawing

gun, after passengers in vehicle he had stopped had "bent over"

to "mess[] with something" on vehicle floor and three of them

failed to obey instruction to place hands on heads).

     The officers were a part of an organized surveillance team

comprising multiple State and Federal officers and were not

outnumbered by the defendant and his companions.   Cf. Cabrera,

76 Mass. App. Ct. at 349 (two officers, outnumbered by five drug

suspects in dead-end alley at night, had legitimate safety

concerns justifying call for backup before patfrisk).   There was

no evidence that the location of the stop was associated in any




     6 The officer who gave the order to stop the GMC testified,
"[I]f they were aware of surveillance, the chance for them
fleeing when [the trooper] turned the lights on, in my opinion,
had just gone way up."
                                                                   11


way with past crimes of violence.   Cf. Dyette, 87 Mass. App. Ct.

at 549, 556-557.

    In urging that the police conduct here at issue was a stop

rather than an arrest, the Commonwealth relies largely on Willis

and Dyette.    That reliance is unavailing.    In Willis, the

information available to police raised significant articulable

safety concerns:    at the time of the stop, the defendant was

reasonably believed to possess a loaded, stolen handgun, and the

defendant had a prior arrest for a violent crime involving a

weapon.   Willis, 415 Mass. at 815-816, 819.    Here, the safety

concerns were considerably less substantial.     Police information

as to the defendant's history with firearms was vague and did

not involve violence, and police had no information that the

defendant possessed any firearm at the time of the stop.

    Similarly, Dyette involved multiple factors raising safety

concerns not present here.    In that case, officers in an

unmarked car noticed the defendant trespassing in a park close

to midnight.   Dyette, 87 Mass. App. Ct. at 550.    The park,

closed and unlit, was known "as an area of high firearm

activity, including homicides and other shootings."     Id. at 549.

After spotting the officers, the defendant and his companion

fled, "colliding with each other as they ran."     Id. at 550.

Several officers gave chase on foot, but the defendant eluded

them until a lone officer stationed at a park exit saw him,
                                                                  12


recognized him from "numerous" prior encounters "including a

firearm arrest," and ordered him to the ground at gunpoint.

Ibid.

     In contrast to Dyette, where the defendant engaged in plain

(and chaotic) flight from officers, and halted only after the

challenged show of force, here the evidence of flight was more

equivocal, and ameliorated by the prompt compliance by the

driver of the GMC with the police signal to stop.   Unlike in

Dyette, the place of the stop in this case was neither one at

which the defendant's presence was itself suspicious nor one

associated with past violent crime.   Additionally, Dyette

involved a fleeing suspect's sudden encounter with a lone

officer, who was forced to make a split-second decision about

his own safety.   Here the officers were engaged in a coordinated

surveillance operation in which four police vehicles

participated in the stop of the GMC; the officers decided when

to make the stop and had time to discuss how they would proceed

once the GMC pulled over.7

     We recognize that the fact-specific decisional law in this

area may at times pose a difficult dilemma for police officers:

"If the officer approaches a suspect[] . . . with his gun still


     7 The trooper in the marked cruiser testified that he was
given no information about the nature of the case and was
instructed to follow the GMC and make a stop "once [he] saw a
violation."
                                                                    13


in his holster, he increases the risk that he will be shot.        If,

on the other hand, he protects himself by drawing his gun, he

increases the risk that a court will set the criminal free by

construing his action as an illegal arrest."     Fitzgibbons, 23

Mass. App. Ct. at 305, quoting from United States v. Jackson,

652 F.2d 244, 249-250 (2d Cir.), cert. denied, 454 U.S. 1057

(1981).    And we emphasize that even when police lack probable

cause to arrest, they may draw their guns or otherwise show

force, to protect themselves or others, when such a display is

"proportional . . . to the degree of suspicion" based on all

relevant circumstances.    Willis, 415 Mass. at 819.   We have

discussed supra some of the numerous decisions illustrating

circumstances in which officers may reasonably draw their

weapons.   To those, we add Commonwealth v. Emuakpor, 57 Mass.

App. Ct. 192, 193-195, 199 (2003) (two officers justified in

blocking vehicle and approaching with guns drawn, where four

occupants were suspected of just having committing armed robbery

with gun).

    We acknowledge that the question here is close, and our

resolution of it necessarily "depends on the particular facts of

[this] case."   Williams, 422 Mass. at 118.   We are constrained

to conclude that police conduct here was not "commensurate with

their suspicion."    Willis, 415 Mass. at 820.   The stop of the

defendant thus constituted an arrest.    Because the Commonwealth
                                                               14


acknowledges that, at the time of the stop, there was no

probable cause for an arrest, the defendant's motion to suppress

should have been allowed.8

                                   Judgments reversed.

                                   Verdicts set aside.




     8 The Commonwealth has not argued that the gun would have
inevitably been discovered even if the officers had not
approached the stopped vehicle in the manner that they did, nor
did the judge make findings on that issue. See Commonwealth v.
O'Connor, 406 Mass. 112, 115-119 (1989) (discussing inevitable
discovery doctrine).
