Commonwealth v. Anthony Arruda.

• Court: Massachusetts Appeals Court
• Decided: October 10, 2023
• Docket: 22-P-1188
• Status: Unpublished

Opinion

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

22-P-1188

COMMONWEALTH

vs.

ANTHONY ARRUDA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from a District Court judge's

order allowing the defendant's motion to suppress suspected

fentanyl recovered from his person. The judge allowed the

motion on the ground that the detectives lacked reasonable

suspicion to justify the seizure of the defendant. We affirm.

Background. We summarize the facts as found by the judge,

supplemented with undisputed evidence from the record that does

not contradict the judge's rulings. See Commonwealth v.

Robinson-Van Rader, 492 Mass. 1, 4 (2023).

At approximately 12:30 P.M. on October 8, 2020, detectives

Paul McGuire and Guy Furtado 1 were on patrol in Fall River.

1 Detectives McGuire and Furtado were members of the Fall River police department's vice and intelligence unit, which investigates narcotic, prostitution, and gambling offenses in the area. McGuire spotted Timothy Eddy, a man known to him, walking at a

fast pace while on his cell phone. McGuire recognized Eddy as

someone "drug involved" from whom he had seized narcotics in the

past. McGuire also knew there was an active warrant for Eddy's

arrest. The detectives followed Eddy for a few blocks until he

walked into the parking lot of a coffee shop.

As Eddy arrived, the detectives observed the defendant, who

was unknown to them, approach from the other side of the parking

lot. The defendant and Eddy greeted each other with a "fist

bump" and entered the coffee shop. They were inside for about

three minutes before leaving with coffee cups and a small bag,

which seemed to contain a donut. Eddy put the bag and his

coffee cup on the ground, and the defendant gave Eddy an

"indiscernible object." Eddy then put his hand in his pocket

while the defendant kept his hands by his side. Neither Eddy

nor the defendant made any move to leave.

At this point the detectives approached Eddy and the

defendant and ordered them not to move and to show their hands.

The detectives read them their Miranda rights and asked if they

had any illegal narcotics. Eddy admitted to having some bags on

him, and Furtado recovered four bags of suspected fentanyl from

his pocket. The defendant also admitted to having bags on him,

which he stated contained heroin and which McGuire suspected was

fentanyl. The detectives seized several bags from his person.

2 The detectives later learned that the defendant lived in the

building next to the coffee shop.

Discussion. "In reviewing a decision on a motion to

suppress, we accept the judge's subsidiary findings absent clear

error but conduct an independent review of [the] ultimate

findings and conclusions of law" (quotations omitted).

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

The judge found that the detectives seized the defendant

when they ordered him not to move and to show his hands after he

left the coffee shop. The Commonwealth concedes that the

defendant was seized at that time. We agree, as the detectives

"objectively communicated that [they] would use [their] police

power to coerce [the defendant] to stay." Commonwealth v.

Matta, 483 Mass. 357, 362 (2019).

The question is then whether, at the time of the seizure,

there was reasonable suspicion that the defendant "was

committing, had committed, or was about to commit a crime."

Commonwealth v. Chin-Clarke, 97 Mass. App. Ct. 604, 608 (2020),

quoting Matta, 483 Mass. at 365. Reasonable suspicion must be

based on "specific, articulable facts and reasonable inferences

[drawn] therefrom" (citation omitted). Commonwealth v. DePeiza,

449 Mass. 367, 371 (2007). In determining whether reasonable

suspicion exists, we consider "the whole 'silent movie'

disclosed to the eyes of an experienced narcotics investigator."

3 Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). A mere

hunch or good faith on the part of the police does not pass

constitutional muster. See Commonwealth v. Clark, 65 Mass. App.

Ct. 39, 44 (2005).

At the time the detectives seized the defendant, all they

knew about him was that he met Eddy, a "drug involved" person

with an outstanding arrest warrant, at a coffee shop, purchased

coffee, and gave him an indiscernible item outside the shop.

These facts were inadequate to support a reasonable suspicion

that the exchange was a narcotics transaction. While the

detectives recognized Eddy, the defendant was unknown to them.

The defendant and Eddy clearly knew each other, as evidenced by

the "fist bump" greeting they exchanged outside the shop.

Consistent with two people meeting for coffee, the men left the

shop a few minutes later with coffee cups and a donut. And

after the defendant gave Eddy the unknown object, neither made

any move to leave. These benign observations did not give rise

to reasonable suspicion of an illegal narcotics sale. Without

more evidence "to color the transaction" they had witnessed, the

detectives lacked sufficient justification to seize the

defendant. Commonwealth v. Ellis, 12 Mass. App. Ct. 476, 477

(1981) (no reasonable suspicion where officer observed people

talking through car window and defendant exchanged unknown

object for what appeared to be money).

4 We are unpersuaded by the Commonwealth's assertion that

this case is analogous to the "silent movie" cases where

reasonable suspicion was found to exist. There were neither

reports of increased drug activity at the coffee shop nor any

evidence credited by the judge showing that the shop was in a

high drug area. Cf. Commonwealth v. Kennedy, 426 Mass. 703, 708

(1998); Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 451-452

(2015). The exchange was not of an unusual nature that would

typically illicit suspicion. Cf. Kennedy, supra at 708-709;

Santaliz, 413 Mass. at 241. Neither man moved to leave after

the exchange or was otherwise found by the judge to have moved

in a suspicious manner. Cf. Commonwealth v. Stewart, 469 Mass.

257, 261 (2014).

Unlike those cases, the detectives here, acting only on a

hunch after observing a fairly ordinary encounter, immediately

leapt to the conclusion that they had observed a drug sale and

seized the defendant. The defendant's "observed movements were

just as consistent with any number of innocent activities" as

they were with a narcotics transaction and, without more, did

not arise to reasonable suspicion. Commonwealth v. Barreto, 483

Mass. 716, 721 (2019). We therefore conclude that the seizure

5 of the defendant was unlawful and that the evidence obtained

therefrom was correctly suppressed.

Order allowing motion to suppress affirmed.

By the Court (Wolohojian, Shin & Ditkoff, JJ. 2),

Clerk

Entered: October 10, 2023.

2 The panelists are listed in order of seniority.