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15-P-1100                                              Appeals Court

                 COMMONWEALTH   vs.   EMERY SANDERS.


                           No. 15-P-1100.

        Essex.       October 7, 2016. - November 15, 2016.

            Present:   Agnes, Maldonado, & Desmond, JJ.


Controlled Substances. Practice, Criminal, Motion to suppress,
     Assistance of counsel. Search and Seizure, Probable cause.
     Probable Cause. Constitutional Law, Search and seizure,
     Probable cause, Assistance of counsel.


     Indictments found and returned in the Superior Court
Department on August 5, 2013.

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


     James E. Methe for the defendant.
     Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.


    AGNES, J.    For more than seventy-five years, we have

avoided an overly formulaic approach to the determination of

whether there is probable cause to search or arrest a person who

is suspected of participation in a street-level drug

transaction.    Instead we endorsed the observation made in
                                                                    2


Brinegar v. United States, 338 U.S. 160, 175 (1949):     "In

dealing with probable cause, however, . . . we deal with

probabilities.   These are not technical; they are the factual

and practical considerations of everyday life on which

reasonable and prudent men [and women], not legal technicians,

act."    For example, in Commonwealth v. Santaliz, 413 Mass. 238,

241 (1992), the Supreme Judicial Court set forth a nonexclusive

list of factors that, when taken together, support a ruling that

there was probable cause to search a person in the context of a

suspected street-level drug transaction.1   In Commonwealth v.




     1
       The factors deemed relevant to the probable cause
determination included the following: (1) the observation of an
unusual transaction; (2) furtive actions by the participants;
(3) the event occurs in a location where the police know drug
transactions are common; and (4) an experienced officer on the
scene regards the event as consistent with a street-level drug
transaction. Santaliz, supra. In Santaliz, a police officer
experienced in narcotics investigations observed the defendant
and a woman seated on the front porch of a "soup kitchen" in a
neighborhood known to the police for its high incidence of drug
sales. Id. at 239. A taxicab stopped directly in front of the
location where the pair were seated. Id. at 239-240. The woman
removed something from her waistband and handed it to the
defendant, who went to the taxicab. Id. at 240. The defendant
handed the object to an individual who had exited from the
taxicab and that individual gave him money. Ibid. No words
were spoken. Ibid. The individual who received the object
returned to the taxicab and left. Ibid. The defendant then
gave the money to the woman. Ibid. Those facts were deemed
sufficient to establish probable cause to search the defendant
and the woman who remained seated. Id. at 241. See
Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 451-453 (2015).
                                                                  3


Kennedy, 426 Mass. 703, 708-711 (1998),2 the court added that

while there is no per se rule (and the court declined to adopt

such a rule) that an officer must observe an identifiable object

being passed or received in order to have probable cause to

believe a street-level drug transaction had occurred, "whether

the officer sees an object exchanged is an important piece of

evidence that supports probable cause, and its absence weakens

the Commonwealth's probable cause showing."   More recently, in

Commonwealth v. Stewart, 469 Mass. 257, 263 (2014), the court

took a step beyond Kennedy, and stated that, in these cases,

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

provide factual support for the inference that the parties

exchanged an object."   See Commonwealth v. Ilya I., 470 Mass.

625, 631 (2015).

     The principal question presented for our review in the

present case is whether a police officer, experienced in drug

     2
       In Kennedy, a police officer, who was an experienced
narcotics investigator, had observed a vehicle stop on the
corner of an intersection known as a "high crime area, high drug
area." Kennedy, supra at 704. The officer then saw a man, who
the officer knew had previously been arrested for selling drugs,
walk over to the passenger side of the vehicle, put his head in
the window, and briefly exchange words with the defendant, who
was the driver and sole occupant. Ibid. The man then ran away,
only to return to the vehicle in one minute, reach into the
vehicle toward the defendant, appear to exchange something with
the defendant, and then walk away as the vehicle left the scene.
Ibid. In concluding that there was probable cause to search the
defendant, the court explained that it was significant that the
officer knew that the man had a reputation for drug dealing,
which included previous arrests. Id. at 709-710.
                                                                      4


investigations, had probable cause to believe a street-level

drug transaction had occurred even though there was no

observation of either an actual exchange between the parties or

furtive movements.    We agree with the motion judge that the

events in question, when viewed through the eyes of an

experienced drug investigator, were sufficient to permit the

officer to infer that an exchange had occurred and to establish

probable cause for the seizure and subsequent search of the

defendant.   Accordingly, for the reasons that follow, we affirm.

     Background.     The defendant appeals from three drug

convictions arising out of two separate incidents on July 5 and

July 12, 2013.   Two indictments charged possession with intent

to distribute cocaine, subsequent offense, in violation of G. L.

c. 94C, § 32A(b), and one indictment charged possession of

heroin, subsequent offense, in violation of G. L. c. 94C, § 34.3

The defendant moved to suppress the evidence recovered from his

person on July 5, on the grounds that the officer had lacked any

justification to search, seize evidence from, or arrest him.      He

also contended that the evidence recovered from his person and

any statements he made on July 12, when he was arrested on a

probation warrant resulting from his July 5 arrest, should be

suppressed as the "fruit of the poisonous tree."     On January 15,

     3
       One indictment charging possession with intent to
distribute heroin, subsequent offense, in violation of G. L.
c. 94, § 32A(b), was nol prossed.
                                                                      5


2014, following an evidentiary hearing, the motion judge denied

the motion to suppress.    Following a jury-waived, bifurcated

trial in accordance with G. L. c. 278, § 11A, the defendant was

found guilty of the counts and sentenced to a term of

imprisonment in State prison.4

     1.    Evidence presented at motion to suppress hearing.     On

the evening of July 5, 2013, Officer Paul Holey, a twenty-year

veteran of the Lynn police department, was conducting a patrol,

driving in a marked police cruiser, in the Hamilton Avenue area

of Lynn with his partner, Officer Paul Wonoski.    Officer Holey

had patrolled that area for four years, and had made "many

arrests" for offenses including drugs and weapons.    Officer

Holey described a common method of selling drugs in that area in

the form of "car meets," wherein a buyer would arrive via a

vehicle, use a cellular telephone (cell phone) to contact a

seller, and then arrange an in-person transaction at the

vehicle.

     At about 7:41 P.M., Officer Holey observed a green Ford

Explorer with Maine license plates parked on Hamilton Avenue.

Officer Holey also observed that the vehicle's only occupant was

a woman using a cell phone.   Officers Holey and Wonoski passed

the vehicle and circled around the block.    Upon reapproaching

     4
       After a sentence appeal to the Appellate Division of the
Superior Court, the defendant's sentence to State prison was
modified.
                                                                    6


the vehicle from behind at a distance of about twenty to twenty-

five yards away, Officer Holey observed the defendant, who was

standing next to the front passenger-side window, reach into the

vehicle "making a passing motion" with his hand, quickly pull

his hand out, and then immediately walk away.   Officer Holey did

not see any exchange between the two individuals.   Officer Holey

recognized the defendant as someone whom he had arrested in the

past for cocaine distribution.

    After observing what he believed to be a narcotics

transaction, Officer Holey got out of the cruiser, called out

the defendant's name, and approached the defendant, while

Officer Winoski approached the vehicle.   The defendant stopped

after hearing Officer Holey.   Officer Holey asked the defendant

where he was going, and stated that he believed that the

defendant had just engaged in a drug transaction.   While

speaking to him, Officer Holey noticed United States currency

sticking out of the defendant's right front pocket.   Officer

Holey withdrew the bills from the defendant's pocket and

identified them as three fifty-dollar bills.

    Officer Holey then conducted a patfrisk of the defendant

and felt a hard object in the defendant's front right pocket.

Officer Holey withdrew the object and identified it as a large

folding knife.   Officer Holey observed that the blade of the

knife was over two and one-half inches long, in violation of a
                                                                      7


Lynn municipal ordinance, and placed the defendant under arrest.5

Officer Holey then placed the defendant in the back of his

cruiser and went to assist Officer Wonoski who was with the

driver of the Ford Explorer.

     As Officer Holey was walking away from the cruiser, the

defendant called out to him and stated that he had "a couple

bags" of "crack" cocaine in one of his shoes.     The defendant was

transported to the police station, where he was searched.    That

search revealed three "twists" (or knotted plastic bags) of

crack cocaine and one twist of heroin in the defendant's right

sock, and a total of $801 in United States currency on his

person.6

     2.    Evidence presented at trial.   Officer Holey testified

at trial in a manner consistent with his testimony at the motion

to suppress hearing.    In addition, two chemists from the State

     5
       While conducting a further search of the defendant,
Officer Holey discovered a small plastic container that had an
odor of cocaine.
     6
       On the morning of July 12, 2013, Lynn police Officer Kelly
Aylward and her partner, Detective Timony Nerich, were surveying
an area on Albany Street in Lynn, in search of the defendant
based on an outstanding warrant for his arrest. That warrant
was issued based on the defendant having violated his probation
due to the July 5 arrest. After observing the defendant walk
out of and, after about two minutes, reenter the front door of a
specific house, the officers went to that house and arrested the
defendant. Upon searching the defendant's person, Detective
Nerich recovered eight twists of a rock-like substance, which he
identified as crack cocaine, as well as jewelry; a cell phone
was discovered when the defendant was searched at the police
station.
                                                                       8


police crime laboratory testified.      Chemist Lisa Yelle tested

the substances recovered from the defendant during the July 5

stop and confirmed that those substances were crack cocaine and

heroin.    Chemist Kimberly Dunlap tested the substance recovered

from the defendant during his arrest on July 12.       Dunlap tested

the substance contained in three of the twists and concluded

that the substance in each twist, which weighed about less than

one-half gram, was cocaine.      Dunlap testified that the

cumulative weight of the substance in the eight twists,

including the packaging, was 3.59 grams.       According to the drug

evidence verification form, Dunlap determined that the total

weight of the packet, which included the narcotics and their

packaging, delivered to the laboratory was 28.9 grams.

    Discussion.     1.   Standard of review.    When reviewing an

order on a motion to suppress evidence, we accept the motion

judge's subsidiary findings of fact absent clear error, and give

substantial deference to the judge's ultimate findings and

rulings.    Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 50

(2014).    Nonetheless, we independently review the judge's

application of constitutional principles to the facts as found.

See Commonwealth v. Kaupp, 453 Mass. 102, 105 (2009).

    2.     Motion to suppress.    The parties agree that the

defendant was not seized when Officer Holey called out his name

and approached him.      See Commonwealth v. DePeiza, 449 Mass. 367,
                                                                    9


370 (2007); Commonwealth v. Pimentel, 27 Mass. App. Ct. 557,

560-561 (1989).    Instead, the defendant was seized when officer

Holey removed the three fifty-dollar bills from his pants

pocket.     See Commonwealth v. Gomes, 453 Mass. 506, 510 (2009).

By that time, according to the motion judge, Officer Holey had

probable cause to arrest the defendant.

    The defendant's principal argument is that he was

unconstitutionally seized because only two of the four Santaliz

factors, see note 1, supra, were present:    he was in an area

known to the police as a location where drug transactions

regularly occurred, and the officer was an experienced narcotics

investigator.    However, on the record before us, a third

Santaliz factor was present.    Officer Holey was entitled to

consider the unusual nature of the event he observed.     The

motion judge specifically credited Officer Holey's testimony.

Officer Holey observed a vehicle with Maine license plates

parked in an area of Lynn in which narcotics transactions

frequently take place by means of "car meets."    The driver, and

only occupant, of the vehicle had made a call on her cell phone,

and shortly thereafter the defendant approached the vehicle's

front passenger window, reached his hand through the window into

the vehicle "making a passing motion," and then quickly withdrew

his hand.    The defendant then walked away with United States

currency visibly sticking out of his pocket.    To an experienced
                                                                   10


narcotics investigator, such as Officer Holey, an inference

could be drawn that the defendant hurriedly engaged in a

narcotics transaction with the occupant of the vehicle.    Based

on his experience, Officer Holey was permitted to infer that

this was an unusual transaction that was consistent with a

street-level drug sale.   However, the question is whether this

confluence of circumstances -- an experienced drug investigator

witnessing an unusual transaction that is consistent with a

street-level drug sale in an area in which such transactions

regularly occur -- satisfies the requirement in Stewart that

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

provide factual support for the inference that the parties

exchanged an object."   Stewart, 469 Mass. at 263.   We conclude

that with the addition of the remaining and critically important

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

who previously had been arrested for distributing cocaine, the

answer is "yes."7




     7
       For purposes of assessing whether reasonable suspicion or
probable cause existed at the time a person is seized by the
police, generally the police may consider that a person
previously had been arrested for an illegal drug transaction or
found in possession of illegal drugs regardless of whether the
person was convicted or whether the evidence was suppressed.
"Evidence establishing probable cause need not be evidence which
would be admissible on the issue of guilt at the defendant's
trial." Commonwealth v. Ortiz, 376 Mass. 349, 354 (1978). See
Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 452 (2015).
                                                                  11


    Here, the interaction between a known drug dealer who had

been seen reaching into a vehicle in which the sole occupant's

behavior up to that point was consistent with that of persons

who purchase drugs by means of "car meets," in a location where

such transactions are known to occur, permitted an experienced

narcotics investigator to infer that there had been an exchange

involving drugs.   In Stewart, on the other hand, "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."   Ibid.

Similarly, in Commonwealth v. Levy, 459 Mass. 1010, 1011-1012

(2011), where the court concluded probable cause was lacking,

police officers observed suspicious behavior involving the

occupants of two vehicles, but did not observe the exchange of

any items and did not recognize any of the individuals "as

having a history with illegal drugs."   In Commonwealth v.

Coronel, 70 Mass. App. Ct. 906 (2007), this court concluded that

probable cause existed on the basis of an experienced police

officer's following observations, in area known for drug

activity.   The officer saw a female exit a vehicle to make a

brief call on a public telephone, and shortly after her return

to the vehicle, a second vehicle, being driven by the defendant,
                                                                   12


approached, slowed down, and eventually stopped.     Id. at 906-

907.    The codefendant, who was a passenger, got out of the

female's vehicle; entered the second vehicle, where he remained

for ten to fifteen seconds; and then stuffed something into his

pocket as he exited that vehicle.    Id. at 907.   Because the

officer in Coronel had previously arrested the defendant for

trafficking in cocaine, the court determined that "it was a

reasonable inference, and not a mere hunch as the motion judge

suggested, that an exchange of contraband took place during the

ten to fifteen second interval that [the codefendant] was in

[the defendant's] car."    Ibid.

       In deciding Stewart, the Supreme Judicial Court did not

abandon the traditional approach to the determination of

probable cause first outlined in Brinegar, 338 U.S. at 175,

which permits police officers to act on the basis of "factual

and practical considerations of everyday life on which

reasonable and prudent men [and women], not legal technicians,

act."   Although under Stewart, the factual circumstances known

to the police officer must permit an inference that there was an

exchange of an object in order to support probable cause that a

street-level drug transaction took place, there are a myriad of

factual scenarios in which such an inference is reasonable

despite the absence of any direct observation of an exchange.
                                                                     13


     Finally, the defendant's reliance on Gomes is misplaced.

There, at 4:00 A.M. in a neighborhood known for drug activity,

an experienced narcotics investigator observed the defendant,

who had been previously arrested for drug offenses, display

something in his hand to another person and then swallow it.

Gomes, 453 Mass. at 511.     No exchange occurred between the two

individuals.    Ibid.   However, the Supreme Judicial Court did not

address whether the officer had probable cause to arrest the

defendant.     Instead, the court considered a different question,

namely, whether a person detained for a threshold inquiry based

on reasonable grounds to suspect that he was committing, had

committed, or was about to commit a crime, namely the sale of

drugs, could be subjected to a patfrisk in the absence of

evidence that he was armed and dangerous.     Id. at 510-514.   The

court concluded that the patfrisk was unlawful because "the

degree of police intrusion was not proportionate to the

articulable risk to officer safety."     Id. at 513-514.   In the

present case, on the other hand, the facts relied upon by the

Commonwealth to support its argument that Officer Holey had

probable cause to arrest the defendant by the time he saw the

money sticking out of the defendant's pocket are predictive of

the inference that an exchange occurred as required by Stewart.8


     8
       Because we conclude that Officer Holey had probable cause
to arrest the defendant on July 5, we need not consider the
                                                                    14


    3.    Ineffective assistance of counsel.   The second question

presented for our review is whether the defendant's trial

counsel provided ineffective assistance in failing to cross-

examine chemist Kimberly Dunlap about the weight of the drugs

she analyzed.   In a supplemental argument pursuant to

Commonwealth v. Moffett, 383 Mass. 201, 216-217 (1981), the

defendant claims that his trial counsel provided ineffective

assistance based on an alleged "discrepancy" between the

recorded weight of narcotics recovered from the defendant and

the weight of the complete package of materials brought to the

chemist's laboratory and later introduced into evidence at

trial.   Generally, we do not reach ineffectiveness claims when

they are raised for the first time on direct appeal.     It is a

"well-established principle that the preferred method for

raising a claim of ineffective assistance of counsel is through

a motion for a new trial."   Commonwealth v. Zinser, 446 Mass.

807, 810 (2006).   This case does not fit into the exception

where a "claim of ineffective assistance may be resolved on

direct appeal of the defendant's conviction when the factual

basis of the claim appears indisputably on the trial record."

Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).       We

do not have an affidavit from the defendant's trial counsel, and



defendant's argument that the evidence seized as a result of his
arrest on July 12 was the fruit of an unlawful search on July 5.
                                                                  15


the Commonwealth does not agree with the factual underpinnings

of the defendant's claim.9

     Conclusion.   For the above reasons, the judge was correct

in denying the defendant's pretrial motion to suppress evidence.

And, on the record before us, there is no merit to the

defendant's claim, raised for the first time on appeal, that his

trial counsel was ineffective.

                                    Judgments affirmed.




     9
       The defendant also contends that trial counsel was
ineffective because he did not call as witnesses the driver of
the Ford Explorer and the officer who searched that driver (and
found no drugs, only a crack pipe). This argument is unavailing
because there is no affidavit from the driver or other
information that states what the driver would testify to, and
the officer's testimony would have been cumulative of other
evidence.
