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SJC-11619

                COMMONWEALTH   vs.   ANGEL SANTIAGO.



       Hampden.      October 7, 2014. - February 4, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Controlled Substances. Search and Seizure, Standing to object,
     Threshold police inquiry, Reasonable suspicion, Probable
     cause, Fruits of illegal search. Constitutional Law,
     Investigatory stop, Probable cause, Reasonable suspicion,
     Search and seizure. Practice, Criminal, Motion to
     suppress, Standing. Threshold Police Inquiry. Probable
     Cause.



     Indictment found and returned in the Superior Court
Department on July 19, 2012.

     A pretrial motion to suppress evidence was heard by John S.
Ferrara, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Gants, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.


     Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
     Frederic G. Bartmon for the defendant.
     Michael K. Fee, P. R. Goldstone, Alex G. Philipson, Matthew
R. Segal, & Jessie J. Rossman, for Massachusetts Association of
                                                                     2

Criminal Defense Lawyers & another, amici curiae, submitted a
brief.
     Murat Erkan, for Erkan & Associates, LLC, amicus curiae,
submitted a brief.


    BOTSFORD, J.    The defendant has been indicted on a charge

of unlawful distribution of a class B controlled substance

(cocaine), second or subsequent offense.    See G. L. c. 94C,

§ 32A (c), (d).    He was stopped and arrested by police officers

at the same time and in the same location as another man, Edwin

Ramos, to whom the Commonwealth alleges the defendant

distributed the cocaine; Ramos was charged with possession of

cocaine by complaint in the District Court.    A judge in the

Superior Court allowed the defendant's motion to suppress

evidence of the alleged cocaine on a theory of "target

standing."   We consider here the Commonwealth's interlocutory

appeal from the allowance of the motion.    We conclude that this

is not an appropriate case in which to consider the adoption of

target standing.    Accordingly, we reverse the order allowing the

defendant's motion to suppress.

    Background.     We take the relevant facts from the motion

judge's findings:

    "On May 14, 2012, Springfield Police Officer William
    Catellier observed the defendant . . . riding a bicycle in
    the North End section of Springfield. This is an area
    known for drug and gang activity. Officer Catellier was on
    uniform patrol, working the 4 P.M. to midnight shift. He
    had no interaction with the defendant that date, but noted
    him because he knows that drug runners sometime use
                                                                  3

    bicycles to relay drugs and money between street level
    dealers and buyers.

    ". . .

    "[On] May 16, 2012, Officer Catellier was again on patrol
    in the North End. He again saw the defendant riding a
    bicycle, and undertook surveillance, following the
    defendant in his marked cruiser, staying a few blocks back
    from him. Officer Catellier did not know the defendant and
    the [c]ourt credits his testimony that he was unaware that
    [the defendant] had been arrested the previous day.
    Officer Catellier observed the defendant pedaling north on
    Main Street. He lost sight of the defendant for a short
    period of time -- perhaps a minute -- but then observed him
    again riding his bike near the corner of Main and Bancroft
    [S]treets. He then observed the defendant dismount the
    bike and walk east down Bancroft, up to a man who stepped
    out of the entryway to a building. [The defendant]
    extended his arm toward the man, later identified as Edwin
    Ramos, and then Ramos appeared to put something in his
    shirt pocket. Officer Catellier did not see a specific
    item in either man's hand, and did not see an exchange; he
    did not observe Ramos give anything to the defendant. He
    nonetheless suspected that he had just seen a drug
    transaction.

    "The two men then began walking together west on Bancroft
    Street, back toward Main Street. Officer Catellier and his
    partner immediately intercepted and detained the two men.
    Officer Catellier told Ramos to "hold on a second," or
    something to that effect, and reached into Ramos's shirt
    pocket. He recovered a small packet of cocaine. The
    defendant . . . was then searched. No drugs were found on
    [him]. He had five dollars in his wallet.

    "Both men were then arrested. Officer Catellier caused
    Ramos to be charged with possession of cocaine, and the
    defendant with distribution of that same cocaine. The
    Commonwealth proposes to use the cocaine seized from Ramos
    in the prosecution of the defendant, and it is that
    evidence the defendant wants suppressed."

    In allowing the defendant's motion to suppress, the judge

reasoned that a claim of "automatic standing" under the rule of

Commonwealth v. Amendola, 406 Mass. 592, 601 (1990), was not
                                                                        4

available to the defendant because he was not charged with a

possessory offense.    See Commonwealth v. Garcia, 34 Mass. App.

Ct. 386, 390 (1993).   See also Commonwealth v. Frazier, 410

Mass. 235, 245 n.6 (1991).    Nevertheless, the judge ruled that

the defendant was entitled to assert standing to challenge the

search and seizure of cocaine from Ramos under a theory of

target standing.   He determined that the police did not have

probable cause to search Ramos based on their observations of

Ramos and the defendant; that there were no facts suggesting

reasonable suspicion for a Terry-type stop; and that, even if

there were, the search of Ramos was not justified based on any

safety concerns.   See Terry v. Ohio, 392 U.S. 1, 27 (1968).      The

judge also determined that the police officers conducted the

search of Ramos "with the goal of obtaining incriminating

evidence against both Ramos and the defendant, but principally,

the defendant."    He concluded that the violation of Ramos's

rights was both intentional and egregious, but that because

Ramos had resolved his case with a guilty plea and a fine

without going forward with his motion to suppress, the illegal

police conduct would receive no sanction, and therefore there

would be no deterrence of future unlawful police actions.    In

the judge's view, it was necessary to recognize the defendant's

standing to challenge the police seizure of the drugs from Ramos

to avoid creating "a means for police to easily circumvent the
                                                                       5

requirement of a warrant, or at leas[t] probable cause where

there is some exigency, for searches of persons suspected of

engaging in an unlawful exchange."

     The Commonwealth thereafter filed a timely notice of appeal

in the Superior Court and a timely application for leave to

bring an interlocutory appeal in the county court.    See Mass. R.

Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).        A

single justice allowed the Commonwealth's application and

ordered the case transferred to the Appeals Court.     Thereafter,

we transferred the appeal to this court on our own motion.

     Discussion.   1.   Target standing.   As articulated by the

United States Supreme Court, the concept of target standing

permits a criminal defendant who is the "target" of a search by

police "to contest the legality of that search and object to the

admission at trial of evidence obtained as a result of the

search," in effect permitting the defendant "to assert that a

violation of the Fourth Amendment rights of a third party

entitled him to have evidence suppressed at his trial."     Rakas

v. Illinois, 439 U.S. 128, 132, 133 (1978).    The Supreme Court

has rejected target standing under the Fourth Amendment, see id.

at 133-138, and it appears that few State courts have accepted

the concept.1   This court has considered target standing in


     1
       Alaska has accepted the theory of target standing, see
Waring v. State, 670 P.2d 357, 363 (Alaska 1983), as has
Louisiana. See State v. Owen, 453 So. 2d 1202, 1205 (La. 1984).
                                                                    6

relation to art. 14 of the Massachusetts Declaration of Rights

in a number of cases since 1990, but to date we have not adopted

it.   See Commonwealth v. Manning, 406 Mass. 425, 429-430 (1990);

Commonwealth v. Price, 408 Mass. 668, 673-675 (1990);

Commonwealth v. Scardamaglia, 410 Mass. 375, 377-380 (1991);

Commonwealth v. Waters, 420 Mass. 276, 278 (1995); Commonwealth

v. Vacher, 469 Mass. 425, 435-437 (2014).

      The primary purpose of the exclusionary rule is to deter

future police misconduct by barring, in a current prosecution,

the admission of evidence that the police have obtained in

violation of rights protected by the Federal and State

Constitutions.   See, e.g., United States v. Calandra, 414 U.S.

338, 348 (1974); Manning, 406 Mass. at 429.   But the rule

requires that a balance be drawn between effectuating its

deterrent purpose and permitting the fact finder to decide a

criminal case based on the available relevant evidence,

including "highly relevant evidence of guilt."   See

Scardamaglia, 410 Mass. at 380.   As the Rakas case reflects, the

Supreme Court has decided that the appropriate balance is


However, Louisiana has a provision in its State Constitution
that expressly authorizes "[a]ny person adversely affected by a
search or seizure conducted in violation" of its provisions to
challenge the legality of a search. See id., quoting La. Const.
art. 1, § 5. The Supreme Court of California adopted a rule of
essentially universal standing, see People v. Martin, 45 Cal. 2d
755, 761 (1955), but a subsequent constitutional amendment
superseded the rule. See Matter of Lance W., 197 Cal. Rptr.
331, 337 (Cal. 1983), citing Cal. Const. art. I, § 28 (d).
                                                                   7

achieved by limiting to those whose own constitutional rights

have been violated the right to claim the benefit of the

exclusionary rule.   See Rakas, 439 U.S. at 134-135.   In

considering art. 14, we have said that a somewhat broader view

may be appropriate, suggesting that "[u]nconstitutional

[searches of] small fish intentionally undertaken in order to

catch big ones may have to be discouraged by allowing the big

fish, when caught, to rely on the violation of the rights of the

small fish, as to whose prosecution the police are relatively

indifferent."   See Vacher, 469 Mass. at 435, quoting Manning,

406 Mass. at 429.    We also have suggested that at least where

"distinctly egregious police conduct" is involved, the need to

create a deterrent effect may require, or at least make

appropriate, recognition of target standing.   See Scardamaglia,

supra.

    We reaffirm the view stated in Scardamaglia, 410 Mass. at

380, that in a case where the police engage in "distinctly

egregious" conduct that constitutes a significant violation of a

third party's art. 14 rights in an effort to obtain evidence

against a defendant, it may be appropriate to permit the

defendant to rely on the standing of the third party to

challenge the police conduct.    For the reasons next discussed,

however, we are not persuaded that the police in this case
                                                                    8

engaged in conduct that would warrant the adoption of such a

target standing rule.

    We accept the findings of the motion judge absent clear

error, but determine independently "the correctness of the

judge's application of constitutional principles to the facts as

found" (citation omitted).   Commonwealth v. DePeiza¸ 449 Mass.

367, 369 (2007) (quotation omitted).    Based on his factual

findings, the judge concluded that the absence of probable cause

was obvious.   We do not share this view.   The evidence, in

summary, showed that Catellier, the police officer who stopped

the defendant and Ramos, had worked in the North End of

Springfield for ten years, knew that it was a high crime area,

and had made many drug arrests there.   On the day of the arrest,

Catellier saw the defendant riding his bicycle again -- he had

seen the defendant riding his bicycle two days earlier -- then

dismount and approach Ramos as the latter stepped out of a

doorway.   The defendant reached his arm out toward Ramos, "and

then . . . Ramos appeared to put something in his shirt pocket."

Although Catellier did not see any item actually exchanged, the

defendant's extended arm and Ramos's corresponding gesture in

relation to his shirt pocket provided some basis for Catellier's

belief that a drug transaction between the two men had just

taken place.   Compare Commonwealth v. Stewart, 469 Mass. 257,

259-264 (2014) (police officer watched defendant, followed by
                                                                   9

three individuals, head down street known for drug use, huddle

briefly with them in doorway, and then separate, but officer saw

no exchange of any item or gestures between or among anyone in

group; court concluded that based on officer's experience and

knowledge of defendant's record, officer had reasonable ground

to suspect drug transaction involving defendant had occurred,

but not probable cause to arrest).2    At the least, as in Stewart,

see id. at 261, there was a sufficient basis for Catellier to

have reasonable suspicion of a drug transaction, and therefore

to conduct a Terry-type stop of the defendant and Ramos.    See

Terry, 392 U.S. at 21-22.

     Assuming that a Terry-type stop was justified but that

there was no probable cause for an arrest, we agree with the

judge that nothing in the situation suggested that Catellier had

a reason to believe either the defendant or Ramos was armed or

dangerous, and thus Catellier had no justifiable reason, after

stopping the two men, to reach immediately into Ramos's pocket

without making any inquiry first.     See Commonwealth v. Silva,

366 Mass. 402, 406 (1974).   But in the circumstances, where the

existence of probable cause was close, we question the basis for

the judge's finding that Catellier "intentional[ly]" violated

     2
       In concluding that probable cause had not been
demonstrated in Commonwealth v. Stewart, 469 Mass. 257 (2014),
the court reversed the decision of the judge denying the
defendant’s motion to suppress. Id. at 258-259, 265. The
evidence supporting probable cause in this case is arguably
stronger than in Stewart.
                                                                   10

Ramos's rights by reaching into his pocket and removing the

small packet of cocaine; in any event, we reject the judge's

conclusion that this brief, limited search of Ramos's shirt

pocket constituted an "egregious" violation of his rights.

     Finally, there is the question of target.   The evidence

before the judge -- Catellier's observation of the defendant two

days earlier on May 14, 2012, and his related decision to

conduct surveillance on May 16 of the two men -- provides

factual support for the judge's conclusion that the defendant

was Catellier's principal target when he stopped the defendant

and Ramos.   But the judge also concluded that Ramos was himself

a target.3   See Vacher, 469 Mass. at 436.

     In sum, the facts here do not support the defendant's claim

of target standing.


     3
       Edwin Ramos was arrested at the same time as the defendant
and charged with the crime of possession of cocaine. As
indicated supra, the motion judge viewed the absence of
suppression of the cocaine in Ramos's case and the fact that the
charge against him was not dropped as providing a reason to
recognize target standing in the defendant's case; he reasoned
that because no sanction of the unlawful police conduct against
Ramos had been imposed, there would be no deterrence of future
unlawful searches. We disagree that the manner in which Ramos
resolved his case offers a reason for adoption of a target
standing theory in this case. The record does not offer any
indication of why Ramos, with the advice of counsel, chose to
resolve the case against him in the manner that he did rather
than proceed with his motion to suppress. The motion judge did
find that Ramos himself was a target of the police actions here,
although not the primary one. The facts of this case do not
justify recognizing target standing for the defendant on the
ground that if it is not recognized, unlawful police conduct
will go unsanctioned.
                                                                    11

    2.   Automatic standing.   Although the judge rejected the

defendant's claim of automatic standing on the ground that the

offense charged was not one with possession as an element, the

defendant presses this point on appeal, presumably as an

alternate basis to affirm the judge's suppression order.    The

facts of this case -- where the evidence of distribution by the

defendant is so immediately tied, in terms of time and place,

with the evidence of possession by Ramos -- present a

sympathetic case for accepting the defendant's argument for

expansion of the doctrine of automatic standing.    But automatic

standing is available in connection with crimes that have

possession as an element because of the distinctly unfair

position in which the defendant is put without such standing.

See Amendola, 406 Mass. at 596-597, 599 (establishing automatic

standing under art. 14 because without this doctrine, defendant

charged with possessory offense must either assert ownership

over contraband, thereby violating right against self-

incrimination, or remain silent and waive right to challenge

search and seizure).   See also Frazier, 410 Mass. at 241-243;

Garcia, 34 Mass. App. Ct. at 391.   It is a clear rule with a

distinct purpose; an expansion of automatic standing in the

manner suggested by the defendant would remove the clarity of

the rule and alter or at least muddy its purpose.    Accordingly,

we reject the defendant's expansion argument.
                                                                   12

    3.   Conclusion.    The order of the Superior Court allowing

the defendant's motion to suppress on a theory of target

standing is reversed.   The case is remanded to the Superior

Court for further proceedings consistent with this opinion.

                                     So ordered.
