NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-551
COMMONWEALTH
vs.
ANGEL VILLAR NIVAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was indicted on counts of trafficking between
100 and 200 grams of cocaine, distribution of a class A
substance (fentanyl), and distribution of a class B substance
(cocaine). After an evidentiary hearing, a Superior Court judge
allowed the defendant's motion to suppress evidence. A motion
to reconsider was denied by the judge. A single justice of the
Supreme Judicial Court granted the Commonwealth leave to file an
interlocutory appeal and reported the matter to this court. See
Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017).
We affirm.
Background. We summarize the facts as found by the judge,
supplemented by relevant facts from testimony and exhibits admitted at the suppression hearing. On February 4, 2023, a
Methuen police officer, who had received extensive training in
conducting drug investigations and had participated in more than
a few hundred narcotics investigations, was conducting
surveillance in an area where he had previously investigated
drug activity between 2017 and 2020. Around 5 P.M., the officer
was monitoring a residence, 22 Ashland Avenue, that was being
investigated for reports of drug use, drug distribution, and
prostitution. The officer saw a woman leave the residence and
get into the front passenger seat of a vehicle driven by the
defendant. As the vehicle drove down Ashland Avenue toward the
police cruiser, the occupants saw the officer in his cruiser and
appeared to the officer to have "startled looks." The officer
saw the vehicle drive away from Ashland Avenue and his location.
He believed the vehicle "had no logical path to go anywhere in
particular" and was going back to drop off the passenger at the
residence.
The officer ran the license plate number and saw that the
vehicle's registered owner, the defendant, did not have an
active Massachusetts driver's license on record. The officer
pulled the vehicle over. The officer asked the defendant in
Spanish if he had a license, and the defendant replied, "Yes."
He provided the officer with a driver's license from the
2 Dominican Republic. The officer determined that the defendant
could not drive because he resided in Massachusetts but did not
have a valid Massachusetts driver's license. The officer saw
that the front seat passenger was not wearing a seat belt and
wanted to get her identification to potentially cite her for the
infraction. The passenger did not have any identification on
her and told the officer that she lived at 22 Ashland Avenue.
The officer ran the passenger's board of probation record and
saw that she had prior drug convictions from 2017 and 2019.
The officer believed that the defendant and passenger had
been engaging in a drug transaction based on the passenger's
demeanor when answering his questions, her criminal history, his
belief that she did not speak Spanish despite claiming that she
did, the fact that the defendant picked her up at a residence
where there was suspected drug activity, and his belief that the
defendant appeared to be "taking a trip around the block." He
asked the passenger to step outside of the vehicle, questioned
her privately, and told her that he suspected that she had
bought drugs from the defendant. The passenger admitted that
she was involved in a drug deal with the defendant while they
were in the vehicle. The officer then arrested the defendant.
Subsequently, the passenger turned over two bags of suspected
illegal drugs to the officer. When the police searched the
3 vehicle, they found more suspected illegal drugs in the center
console.
After conducting an evidentiary hearing on the motion to
suppress, the judge allowed the motion and made oral findings.
Discussion. "In reviewing a decision on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error, except where those findings rest solely on
documentary evidence, such as a video recording, which we review
de novo." Commonwealth v. Robinson, 497 Mass. 156, 161 (2026).
We "conduct an independent review of [the judge's] ultimate
findings and conclusions of law" (citation omitted).
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). Where
the judge based his findings on both live testimony and
documentary evidence, "[t]he case is to be decided upon the
entire evidence, . . . giving due weight to the judge's findings
that are entitled to deference" (quotations and citation
omitted). Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018).
Determining "the weight and credibility of the testimony is the
function and responsibility of the judge who saw and heard the
witnesses." Commonwealth v. Neves, 474 Mass. 355, 360 (2016).
The Commonwealth argues that the judge erred in allowing
the defendant's motion to suppress because the officer was
justified in extending the traffic stop by asking the passenger
4 to exit the vehicle to speak with her after developing
reasonable suspicion that the defendant and passenger had
engaged in a drug transaction. "[A]n exit order is justified
during a traffic stop where (1) police are warranted in the
belief that the safety of the officers or the safety of others
is threatened; (2) police have reasonable suspicion of criminal
activity; or (3) police are conducting a search of the vehicle
on other grounds." Commonwealth v. Torres-Pagan, 484 Mass. 34,
38 (2020). The Commonwealth's argument focuses on the second
prong -- whether the officer had reasonable suspicion that the
defendant and passenger had engaged in a drug transaction. We
agree with the judge's finding that the officer did not have
reasonable suspicion based on specific and articulable facts to
justify the exit order. See Commonwealth v. DePeiza, 449 Mass.
367, 371 (2007) (reasonable suspicion must be grounded in
specific, articulable facts rather than on hunch).
The judge found that the evidence did not support the
officer's belief that the vehicle was "tripping the block with
no meaningful destination in mind" and that the vehicle was
going to return to the residence to drop off the passenger where
she was picked up. The judge found that nothing about the
defendant's operation of the vehicle was "suspect" or
"inappropriate" and that "[h]is direction in path was perfectly
5 logical to going [to] some other place.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-551
COMMONWEALTH
vs.
ANGEL VILLAR NIVAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was indicted on counts of trafficking between
100 and 200 grams of cocaine, distribution of a class A
substance (fentanyl), and distribution of a class B substance
(cocaine). After an evidentiary hearing, a Superior Court judge
allowed the defendant's motion to suppress evidence. A motion
to reconsider was denied by the judge. A single justice of the
Supreme Judicial Court granted the Commonwealth leave to file an
interlocutory appeal and reported the matter to this court. See
Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017).
We affirm.
Background. We summarize the facts as found by the judge,
supplemented by relevant facts from testimony and exhibits admitted at the suppression hearing. On February 4, 2023, a
Methuen police officer, who had received extensive training in
conducting drug investigations and had participated in more than
a few hundred narcotics investigations, was conducting
surveillance in an area where he had previously investigated
drug activity between 2017 and 2020. Around 5 P.M., the officer
was monitoring a residence, 22 Ashland Avenue, that was being
investigated for reports of drug use, drug distribution, and
prostitution. The officer saw a woman leave the residence and
get into the front passenger seat of a vehicle driven by the
defendant. As the vehicle drove down Ashland Avenue toward the
police cruiser, the occupants saw the officer in his cruiser and
appeared to the officer to have "startled looks." The officer
saw the vehicle drive away from Ashland Avenue and his location.
He believed the vehicle "had no logical path to go anywhere in
particular" and was going back to drop off the passenger at the
residence.
The officer ran the license plate number and saw that the
vehicle's registered owner, the defendant, did not have an
active Massachusetts driver's license on record. The officer
pulled the vehicle over. The officer asked the defendant in
Spanish if he had a license, and the defendant replied, "Yes."
He provided the officer with a driver's license from the
2 Dominican Republic. The officer determined that the defendant
could not drive because he resided in Massachusetts but did not
have a valid Massachusetts driver's license. The officer saw
that the front seat passenger was not wearing a seat belt and
wanted to get her identification to potentially cite her for the
infraction. The passenger did not have any identification on
her and told the officer that she lived at 22 Ashland Avenue.
The officer ran the passenger's board of probation record and
saw that she had prior drug convictions from 2017 and 2019.
The officer believed that the defendant and passenger had
been engaging in a drug transaction based on the passenger's
demeanor when answering his questions, her criminal history, his
belief that she did not speak Spanish despite claiming that she
did, the fact that the defendant picked her up at a residence
where there was suspected drug activity, and his belief that the
defendant appeared to be "taking a trip around the block." He
asked the passenger to step outside of the vehicle, questioned
her privately, and told her that he suspected that she had
bought drugs from the defendant. The passenger admitted that
she was involved in a drug deal with the defendant while they
were in the vehicle. The officer then arrested the defendant.
Subsequently, the passenger turned over two bags of suspected
illegal drugs to the officer. When the police searched the
3 vehicle, they found more suspected illegal drugs in the center
console.
After conducting an evidentiary hearing on the motion to
suppress, the judge allowed the motion and made oral findings.
Discussion. "In reviewing a decision on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error, except where those findings rest solely on
documentary evidence, such as a video recording, which we review
de novo." Commonwealth v. Robinson, 497 Mass. 156, 161 (2026).
We "conduct an independent review of [the judge's] ultimate
findings and conclusions of law" (citation omitted).
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). Where
the judge based his findings on both live testimony and
documentary evidence, "[t]he case is to be decided upon the
entire evidence, . . . giving due weight to the judge's findings
that are entitled to deference" (quotations and citation
omitted). Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018).
Determining "the weight and credibility of the testimony is the
function and responsibility of the judge who saw and heard the
witnesses." Commonwealth v. Neves, 474 Mass. 355, 360 (2016).
The Commonwealth argues that the judge erred in allowing
the defendant's motion to suppress because the officer was
justified in extending the traffic stop by asking the passenger
4 to exit the vehicle to speak with her after developing
reasonable suspicion that the defendant and passenger had
engaged in a drug transaction. "[A]n exit order is justified
during a traffic stop where (1) police are warranted in the
belief that the safety of the officers or the safety of others
is threatened; (2) police have reasonable suspicion of criminal
activity; or (3) police are conducting a search of the vehicle
on other grounds." Commonwealth v. Torres-Pagan, 484 Mass. 34,
38 (2020). The Commonwealth's argument focuses on the second
prong -- whether the officer had reasonable suspicion that the
defendant and passenger had engaged in a drug transaction. We
agree with the judge's finding that the officer did not have
reasonable suspicion based on specific and articulable facts to
justify the exit order. See Commonwealth v. DePeiza, 449 Mass.
367, 371 (2007) (reasonable suspicion must be grounded in
specific, articulable facts rather than on hunch).
The judge found that the evidence did not support the
officer's belief that the vehicle was "tripping the block with
no meaningful destination in mind" and that the vehicle was
going to return to the residence to drop off the passenger where
she was picked up. The judge found that nothing about the
defendant's operation of the vehicle was "suspect" or
"inappropriate" and that "[h]is direction in path was perfectly
5 logical to going [to] some other place. It was not a trip
around the neighborhood that you might typically see with a
meaningless ride. In fact, it was going towards a café."
Contrast Commonwealth v. Damelio, 83 Mass. App. Ct. 32, 34
(2012) ("meaningless ride" supported reasonable suspicion where
defendant made "U-turn" and returned to same street).
We are unpersuaded by the Commonwealth's argument that the
officer could reasonably believe the passenger was lying about
her relationship with the defendant because "her claimed ability
to speak Spanish was a lie" and the defendant and passenger
appeared unable to communicate with each other. The only
information that emerged about their relationship was that the
passenger had "been friends with [the defendant's] dad for a
while," that the father no longer lived nearby, and that the
passenger and defendant "hang out . . . sometimes."
Although the passenger's initial claim that she spoke
Spanish might appear as an exaggeration by some standards given
her inability to interpret phrases such as "zip code," she
clarified that she had learned her Spanish from the defendant's
father and the defendant and that she was "learning still."
Nothing about these representations was objectively implausible,
especially where the officer had no information about the
defendant's father -- for example, his level of English
6 proficiency -- or the passenger's relationship with him.
Compare Commonwealth v. Henley, 488 Mass. 95, 103 (2021)
(defendant's implausible explanation in response to police
questioning factored into reasonable suspicion). Furthermore,
the Commonwealth cites no authority, nor do we know of any, to
support its apparent assertion that it is inherently implausible
for two people who do not speak a common language to spend time
together in a noncriminal capacity.
The remaining factors which the Commonwealth argues
supported the officer's reasonable suspicion are his expertise,
the active investigation into 22 Ashland Avenue for drug
activity and the officer's previous police work in the
surrounding neighborhood between 2017 and 2020, the defendant
and passenger's startled looks when they first drove past the
officer, and the passenger's 2017 and 2019 convictions for
possession of narcotics. These factors, standing alone, did not
amount to more than a hunch. See Commonwealth v. Cordero, 477
Mass. 237, 243-246 (2017) (no reasonable suspicion to extend
investigation where defendant gave evasive answers, appeared
nervous, had history of criminal convictions, and trooper opined
that defendant lived in "major drug source city").
The record supported the judge's findings that there was no
evidence of drug activity -- no drugs or drug paraphernalia were
7 in plain view -- and no evidence of any furtive gestures by
either occupant; the judge found that the occupants "weren't
doing anything that might indicate that . . . they were engaging
in some kind of drug activity" or that there would be a safety
concern. Contrast Commonwealth v. Stephens, 451 Mass. 370, 374
(2008) (exit order valid where trooper saw driver hold black
object in chest area and quickly lower it and saw "hundreds of
dollars" and altered plastic bags consistent with packaging of
illegal drugs).
Throughout the entirety of the stop, the defendant and the
passenger complied with the officer's requests and answered his
questions. In response to the officer's requests, the defendant
gave the officer his address and provided the vehicle
registration and his driver's license; the passenger gave the
officer her identifying information when asked. Moreover, the
judge found that none of the statements of the defendant or
passenger proved to be false.
For these reasons, we conclude that the officer's exit
order was unsupported by reasonable suspicion where the evidence
8 did not support specific and articulable facts that the
defendant and passenger had committed any crime.
Order allowing motion to suppress affirmed.
By the Court (Meade, D'Angelo & Tan, JJ.1),
Clerk
Entered: May 13, 2026.
1 The panelists are listed in order of seniority.