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15-P-289                                              Appeals Court

                COMMONWEALTH    vs.   DOMINGO CASTILLO.


                              No. 15-P-289.

           Suffolk.       January 20, 2016. - July 25, 2016.

              Present:    Trainor, Agnes, & Massing, JJ.


Controlled Substances. Practice, Criminal, Motion to suppress,
     Findings by judge, Interlocutory appeal. Probable Cause.



     Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on July 25, 2013.

     A pretrial motion to suppress evidence was heard by Debra
Shopteese, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Geraldine S. Hines, J., in the Supreme
Judicial Court for the county of Suffolk, and the case was
reported by her to the Appeals Court.


     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
     Bradford R. Stanton for the defendant.


     TRAINOR, J.      The Commonwealth appeals from the allowance of

a motion to suppress evidence in the Roxbury Division of the

Boston Municipal Court.      The Commonwealth argues that three of
                                                                      2


the judge's factual findings are clearly erroneous because they

were not supported by the evidence presented at the suppression

hearing.    The Commonwealth also argues that the judge erred in

allowing the motion to suppress because the police officer had

probable cause to believe that the defendant had sold heroin to

another individual.     We vacate and remand.

     Background.    "We summarize the facts found by the motion

judge following the evidentiary hearing, supplemented where

necessary with undisputed testimony that was implicitly credited

by the judge."     Commonwealth v. Oliveira, 474 Mass. 10, 11

(2016). 1

     Officer Shawn Grant 2 testified that on the afternoon of July

24, 2013, he saw two individuals, later identified as Cesar

Caban and James Niemczyk, on Washington Street in the Roxbury

section of Boston walking back and forth while talking on

cellular telephones (cell phones).     Officer Grant alerted other

officers in the area of the behavior and parked his unmarked

police vehicle on the same side of Washington Street as the two

individuals.     After about fifteen minutes, Officer Grant saw the


     1
       The summary of the facts, pursuant to this directive, is
difficult under the very unusual circumstances of this case.
Under these unique circumstances we have attempted to follow the
teaching and mandate of Commonwealth v. Jones-Pannell, 472 Mass.
429, 436-438 (2015).
     2
       A sixteen-year veteran of the Boston police department and
a member of its drug control unit.
                                                                    3


defendant cross Washington Street walking toward Caban and

Niemczyk, who were now standing near a tree, and place an item

into a residential mailbox 3 not more than twenty-five feet from

the tree.   The defendant then walked to the tree and took money

which Caban had wedged into the branches.   Caban then walked to

and reached into the mailbox and removed an item from inside.

Officer Grant reported what he had witnessed to the nearby

officers.   Based on his training and experience, he believed he

had witnessed a drug transaction.

     Officer Grant followed the defendant to where he entered

the passenger side of a parked automobile while other officers

observed Caban and Niemczyk.   Officer Grant heard over the radio

that the other officers had stopped Caban and had found one

plastic bag containing heroin on him.   After Officer Grant heard

this, he stopped the automobile with the defendant in it and

placed the defendant under arrest for distribution of a class A

substance (heroin, in violation of G. L. c. 94C, § 32[a]).

During a search incident to arrest of the defendant, Officer

Grant found two cell phones on him and a total of $680 -- $630

in one pocket, and fifty dollars in the other.


     3
       The judge found that Officer Grant could not see the
mailbox at all. The judge stated, "[H]e stated candidly to the
court that he could not see the mailbox from the position that
he was parked in." As discussed later, this finding is clearly
erroneous based on the testimony, as credited, given by Officer
Grant.
                                                                         4


     Discussion.   a.     Judge's findings.    When reviewing a motion

to suppress, "we adopt the motion judge's factual findings

absent clear error."      Commonwealth v. Isaiah I., 450 Mass. 818,

821 (2008), citing Commonwealth v. Catanzaro, 441 Mass. 46, 50

(2004).   "We take the facts from the judge's findings following

a hearing on the motion to suppress, adding those that are not

in dispute, and eliminating those that, from our reading of the

transcript, are clearly erroneous."      Commonwealth v. Wedderburn,

36 Mass. App. Ct. 558, 558-559 (1994).        "A finding is clearly

erroneous when 'although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.'"        Green

v. Blue Cross & Blue Shield of Mass., Inc., 47 Mass. App. Ct.

443, 446 (1999), quoting from Springgate v. School Comm. of

Mattapoisett, 11 Mass. App. Ct. 304, 309-310 (1981).

     The motion judge heard testimony from a single witness,

Officer Grant, and after counsels' arguments, made oral findings

and rulings.   The judge both explicitly and implicitly credited

the testimony of Officer Grant and based her ruling on what she

believed he had said. 4    Here, the Commonwealth argues that the

judge's factual findings, upon which her legal conclusions are

     4
       The judge explicitly credited the testimony by stating
that the officer had testified "candidly," and implicitly
credited the testimony by basing her findings (albeit
unsupported) on that testimony.
                                                                        5


based, are clearly erroneous.    See Commonwealth v. Thomas, 429

Mass. 403, 405 (1999) ("motion judge's findings of fact are

binding in the absence of clear error").

      1.   Officer Grant's view of the mailbox.    The judge stated

in her findings that "Officer Grant had a hunch that something

was placed in the mailbox, but he stated candidly to the court

that he could not see the mailbox from the position that he was

parked in; he was between the store and the doorway where the

mailbox is situated, apparently, or mailboxes, and he could not

actually see into the doorway where the mail drop or mailboxes

are, so he could not see whether the defendant put anything in

the box, mailed anything, took anything from the box.      Officer

Grant simply was not able to observe this." 5     Officer Grant's

testimony on direct examination, however, was significantly

different.    The prosecutor asked:   "[Y]ou said that you saw the

defendant place something in a mailbox?"    Officer Grant

answered:    "Yes, an open or broken mailbox, I should say."      The

prosecutor continued:    "Do you recognize this?"    Officer Grant

answered:    "[I]t looks like the mailbox that he placed an item

in.   I'm not sure if that's the exact mailbox."     After some

discussion about the size of the item placed in the mailbox, the

prosecutor returned to the question of Officer Grant's ability

      5
       We consider this statement by the judge to be explicitly
crediting Officer Grant's testimony while, at the same time, not
being supported by his actual testimony.
                                                                      6


to observe the mailbox.    The prosecutor asked:   "[W]here were

you when you saw the defendant place the item in the mailbox?"

Officer Grant responded:    "I wasn't exactly in front of the

mailbox, I was away . . . f[a]rther away from the mailbox."      In

response to the prosecutor's question, "About how far away?" the

officer responded, "Ten feet."

     Defense counsel vigorously cross-examined Officer Grant

regarding his ability to observe the mailbox and whether he

could see exactly what the item was that the defendant placed

into it and what later was removed from it.    Defense counsel

asked Officer Grant if he inspected the mailbox after the

alleged buyer removed the item placed there by the defendant.

Officer Grant responded that he did inspect the mailbox and

defense counsel followed by asking:    "Then you went to -- you

went to the mailbox then?"    Officer Grant responded, "No, [I]

looked in the mailbox from my vehicle; I didn't get out of my

vehicle . . . [y]es, yes, I didn't get out of my vehicle."

Defense counsel asked again, "Okay.    And could you see the

mailboxes?"   Officer Grant responded, "I could see the

mailboxes, yes."   This was the only testimony regarding the

mailbox offered at the hearing. 6


     6
       Defense counsel later asked Officer Grant whether, if
someone had been standing in the doorway, his view of the
mailbox would have been blocked. There was, however, no
evidence or testimony of anyone standing in the doorway.
                                                                    7


     The fact that the judge's finding was erroneous is clear,

but equally significant is the fact that this testimony was not

susceptible of more than one interpretation.    The judge made an

explicit credibility determination of Officer Grant's testimony.

See Commonwealth v. Alvarado, 423 Mass. 266, 268 n.2 (1996)

("The motion judge's findings do not incorporate all the

testimony of the police officer who testified at the hearing on

the motion to suppress . . . .    We . . . refer to the

uncontroverted testimony of the police officer because we infer

the motion judge accepted it in its entirety").    See also

Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990) ("On a

motion to suppress, the determination of the weight and

credibility of the testimony is the function and responsibility

of the [motion] judge who saw the witnesses, and not this court"

[quotation omitted]); Commonwealth v. Scott, 52 Mass. App. Ct.

486, 492 (2001), S.C., 57 Mass. App. Ct. 36 (2003) and 440 Mass.

642 (2004).    The judge explicitly credited Officer Grant's

testimony, and it was the only testimonial evidence offered at

the hearing.    The officer's testimony was neither ambiguous nor

susceptible of more than one interpretation, yet the judge's

findings do not reflect his testimony and are clearly erroneous. 7



     7
       Nowhere in the record of the hearing does the judge
discredit any of the officer's testimony. We must infer
therefore that all of the testimony had been credited.
                                                                      8


     2.    Caban and Niemczyk's view of the mailbox.   The judge

next found that "the other two individuals, Caban and the third

individual, were not in a position to see the mailbox at that

time either.     There's no evidence that they were near the

mailbox or could view the mailbox."     While Officer Grant did not

testify how far away Caban and Niemczyk were from the mailbox,

he did testify that they were on the same side of the street as

the mailbox, "f[a]rther away from the mailbox . . . standing

near a tree that was planted on the sidewalk."     He then

testified that he was "[p]robably fifteen feet" away from the

tree.     He testified further that he could clearly see that it

was "money" that Caban put in the tree and that this occurred

about "[t]wo seconds" after the defendant put the item into the

mailbox.     The entire transaction observed and described by

Officer Grant occurred in one to two minutes and consisted of

the defendant placing an item in the mailbox, Caban placing

money in the tree, the defendant walking to the tree and

retrieving the money, and Caban walking to the mailbox and

retrieving the item.     The defendant and Caban had to be standing

close to each other in order to complete the transaction within

the time frame described by Officer Grant.

     3.    Sequence of events.   Finally, and relatedly, the judge

found that she did "credit that the money was put in the tree,

between the tree branches, but . . . I don't know where the tree
                                                                     9


branches were, really, what the location, whether the defendant

was simply walking by the area.    I don't know that the defendant

walked directly to that area."    Officer Grant, however,

testified that he witnessed the defendant cross Washington

Street, walk to the mailbox, and place something inside it.

Within two seconds, Caban put money in the tree branches.    The

defendant then walked directly to the tree, which was within

twenty-five feet of the mailbox, and retrieved the money.    Caban

then walked directly to the mailbox and took something out of

it.   Office Grant testified that the two men then went their

separate ways.   There is no basis in the record to support the

judge's finding that the defendant did not walk directly to the

mailbox and from the mailbox to the tree to retrieve the money.

These facts, based on the uncontroverted testimony that the

judge credited, require us to draw the inescapable inference

that Caban or Niemczyk must have seen the defendant put the

drugs in the mailbox or Caban would not have put the money in

the tree.   The judge's finding was clearly erroneous.

      In allowing the motion to suppress, the judge concluded

that her

      "primary concern [was] that the officer did not see the
      defendant place any item in the mailbox and that the other
      two individuals did not see the defendant place any item in
      the mailbox, nor were the individuals on the phone with
      each other confirming any kind of drop-off or anything of
      that nature.
                                                                    10


          "So, anything the officer did at that point was based
     on his hunch that a transaction had occurred, and the stop
     exceeded the permissible scope." (Emphasis added.)


     The basis for the judge's allowance of the motion to

suppress is not only clearly erroneous but is directly

contradicted by the only evidence she heard, and credited, and

which makes up the entire record.

     Commonwealth v. Jones-Pannell, 472 Mass. 429 (2015),

instructs us that we may only supplement a judge's findings when

"additional facts [are] necessary to support the judge's

conclusion, such as where the judge found the witnesses'

testimony truthful and accurate."   Id. at 437 (quotation

omitted).   Generally, we may not "revise a judge's subsidiary

findings of fact," id. at 438, in order to reach a conclusion

contrary to that reached by the judge.   "[T]he mere absence of

contradiction is not enough to permit supplementation with facts

not found by the judge."   Id. at 436.   Similarly, we should not

supplement a "judge's findings of fact with evidence in the

record that was not included in the judge's findings, and as to

which the judge made no statement of credibility, on the

assertion that the judge implicitly credited that testimony."

Id. 436-437.   "In the absence of findings on a critical issue

. . . or where the facts as found are susceptible of more than

one interpretation, and there is additional evidence in the
                                                                      11


record, neither implicitly credited nor discredited by the

judge, remand may be appropriate."      Id. at 437 (quotation

omitted).       See Commonwealth v. Isaiah I., 448 Mass. 334, 338-339

(2007), S.C., 450 Mass. 818 (2008).      Ultimately, it is never

appropriate for an appellate court "to engage in what amounts to

independent fact finding in order to reach a conclusion of law

that is contrary to that of a motion judge who has seen and

heard the witnesses, and made determinations regarding the

weight and credibility of their testimony."      Commonwealth v.

Jones-Pannell, 472 Mass. at 438. 8     However, we do not accept the

judge's subsidiary findings of fact that are clearly erroneous

when evaluating the judge's ultimate findings and conclusions of

law.       Ibid.

       In consideration of these clear and explicit directives,

and notwithstanding the singular and unique circumstances of

this case, we are compelled to remand this matter for the motion

judge to correct these errors.

       There is nothing in Officer Grant's testimony that is

either ambiguous or susceptible of a different interpretation.

The judge specifically credited the testimony of the witness,

and then made findings unsupported by that testimony.      There is

       8
       Jones-Pannell also makes emphatically clear that we should
not assume that the judge implicitly credited testimony that
contradicts the judge's ultimate legal conclusion simply because
only one witness has testified at a motion hearing, and the
testimony is therefore "uncontroverted." 472 Mass. at 438.
                                                                      12


no question of the credibility or the weight given to the

witness's testimony and there is no contradictory testimony to

which to compare it.      The testimony stands on its own and in

stark contrast to the judge's actual erroneous findings.      Under

these unique circumstances, we are directing the judge to

correct these errors, upon remand, to comport with the clear,

unambiguous, uncontroverted and credited evidence offered at the

hearing. 9

     b.      Probable cause.   In addition, the motion judge erred in

ruling that Officer Grant lacked probable cause to believe that

the defendant had sold heroin to Caban.      The judge concluded

that "while the police might have had enough to make a threshold

inquiry in this situation, there was certainly not enough to

make an immediate arrest as was done here."      The judge reached

this conclusion when she found that Officer Grant had not seen

the exchange of drugs for money.      However, this legal conclusion

is erroneous because our case law does not require an officer to

see the item exchanged in order to create a reasonable

suspicion, or even probable cause, to believe that a drug

transaction has occurred.      See Commonwealth v. Kennedy, 426

Mass. 703, 710 (1998) (declining to "adopt a per se rule that an


     9
       For the purpose of this analysis, we assume, of course,
that the judge, on remand, continues to credit the officer's
testimony and does not make an explicit finding discrediting
some or all of that testimony.
                                                                    13


officer must actually see an object exchanged . . . before he

has sufficient evidence supporting probable cause to arrest").

In Kennedy, the court reasoned that, "[g]iven the practical

consideration of the small size of packages of drugs, which are

capable of being concealed within a closed hand, we would

critically handicap law enforcement to require in every

circumstance that an officer not only witness an apparent

exchange, but also see what object was exchanged, before making

a search incident to an arrest."   Id. at 711.   "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 . . . .'"    Commonwealth v.

Stewart, 469 Mass. 257, 262 (2014), quoting from Commonwealth v.

Santaliz, 413 Mass. 238, 242 (1992). 10   The "silent movie"

actually depicted in this case consisted of the following

observations made and testified to by Officer Grant:    Caban and

Niemczyk pacing back and forth while talking on cell phones, the

defendant placing an item in a mailbox near Caban, Caban looking

at the defendant, Caban then placing money in a tree branch, the

defendant retrieving the money from the tree branch, Caban

retrieving the item from the mailbox, both men leaving in


     10
       Here, the totality of the judge's erroneous findings
would have depicted a "silent movie" significantly different
from the one that actually occurred according to the officer's
testimony.
                                                                  14


different directions, and other officers radioing Officer Grant

to inform him that Caban had been stopped and found with heroin.

This was sufficient for Officer Grant, based on his training and

experience, to have probable cause to arrest the defendant.    See

Commonwealth v. Gullick, 386 Mass. 278, 283 (1982) ("Probable

cause to arrest exists when, at the moment of arrest, the facts

and circumstances known to the police officers were sufficient

to warrant a person of reasonable caution in believing that the

defendant had committed or was committing a crime").

     Conclusion.   Because the judge's findings were clearly

erroneous based on the uncontroverted evidence at the

suppression hearing, the suppression order must be vacated and

the matter remanded.   On remand, the judge shall make findings

that comport with the hearing testimony she credits, and she

shall make explicit any testimony she does not credit.

                                    So ordered.
