Commonwealth v. Fernandez

784 N.E.2d 668, 57 Mass. App. Ct. 562, 2003 Mass. App. LEXIS 319
CourtMassachusetts Appeals Court
DecidedMarch 12, 2003
DocketNo. 02-P-6
StatusPublished
Cited by5 cases

This text of 784 N.E.2d 668 (Commonwealth v. Fernandez) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Fernandez, 784 N.E.2d 668, 57 Mass. App. Ct. 562, 2003 Mass. App. LEXIS 319 (Mass. Ct. App. 2003).

Opinion

Kass, J.

Before us is a question whether police could, within the limits set by the Fourth Amendment to the Constitution of the United States, arrest and search a passenger in a motor vehicle from which the driver was observed making an unlawful drug sale.1 A judge of the Superior Court denied a motion to suppress the fruits of the search of the passenger: a marked $20 bill that a police officer had used to make a drug buy; a pager; [563]*563$343 in cash; and a plastic bag with seventeen pieces of “a white hard substance.” The defendant elected a trial without a jury and was convicted of unlawful distribution of a controlled substance (cocaine), unlawful possession of a controlled substance (cocaine) with intent to distribute, and of having previously been convicted of similar offenses. We affirm.

Facts. In summary, these are the facts the motion judge found. A State trooper, dressed in casual civilian clothes and working in an unmarked police vehicle, was “trolling” for drug dealers on a street in Brockton. A man hailed him and asked what he wanted. “A twenty,” the trooper said, whereupon the man beckoned to follow him around the comer to a gray car parked on Appleton Street at its intersection with Wyman Street. It was 8:45 p.m. of a December night and, therefore, dark. By the headlights of his cruiser, the trooper saw two women in the front seat. He watched the man who — on foot — had led him there go to the driver and receive from her an object. That object, which turned out to be cocaine in rock form, was duly delivered by the man to the trooper who, in exchange, gave a marked $20 bill to the man. The man returned to the car and gave the $20 bill to the driver. Esterlina Fernandez, the defendant, was at all times seated in the passenger seat of the car from which the man brought the cocaine.

In his findings, the judge emphasized: (1) the trooper’s experience and “knowledge of this type of drug activity modus operandi”; (2) that the transaction occurred in an area known for illegal drug dealing; (3) that the car was parked at night on a side street with no lights on; and (4) and that actual criminal activity, as opposed to suspected criminal activity, had taken place in the defendant’s “presence and within her observation.” There is no testimony in the record that the trooper had “knowledge of this type of drug activity modus operandi,” that the buy had occurred in a high drag crime area, or that the car from where the cocaine was dealt was on a side street. It may be that the experienced judge knew a good deal about the locus of the crime and the savvy of the State trooper. Prescinding from whether such facts might be the subject of judicial notice, the [564]*564judge did not suggest he had found them on that basis.2 We, therefore, do not take into account in our consideration of the case the findings of the motion judge that we have identified as without support in the record.

Following the buy, the trooper made a radio call to a “take-down” team of Brockton police officers. They moved in on the gray car, arrested both women in it, and searched them incident to those arrests. Both the arrests and the searches were without warrants. The defendant had the marked $20 bill. She also had on her person the inculpatory items previously mentioned.

2. Discussion. The defendant urges that the evidence, before she was searched, stood for nothing more than her presence in the gray automobile when the drug deal occurred. In that case, the argument continues, the police lacked probable cause to arrest the defendant, and the search incident to her arrest was unlawful because of the illegality of the underlying arrest. See G. L. c. 276, § 1; Commonwealth v. Santiago, 410 Mass. 737, 742-743 (1991). Compare Commonwealth v. Wedderburn, 36 Mass. App. Ct. 558, 563-564 (1994).

On the evidence at the motion hearing, the defense points out, the State trooper saw the driver pass cocaine to the man who had solicited the trooper’s business and the trooper saw that man give the $20 bill to the driver. The trooper never saw the defendant handle the drug or the money or saw her manifest participation by some movement that the trooper observed. In support of her “mere presence” defense, the defendant relies heavily on United States v. Di Re, 332 U.S. 581 (1948), and Commonwealth v. Sampson, 20 Mass. App. Ct. 970 (1985). In the Di Re case, supra at 583, the United States Office of Price Administration (OPA) had a tip from an informer, Reed, that he had arranged to buy counterfeit gasoline ration coupons from a man named Buttitta at a designated place in Buffalo, New York. An OPA investigator and a city detective picked up Buttitta’s trail and followed it to the appointed place where Buttitta’s car was parked. In that car they found their informer, Reed, clutch[565]*565ing two gasoline coupons (later determined to be counterfeit). Buttitta sat in the driver’s seat and beside him in the passenger seat was Di Re. All three were taken into custody and to the police station; i.e., they were arrested, the informer presumably for show. At the station, Di Re was booked and underwent a thorough search. Between his shirt and his underwear, the authorities found one hundred gasoline ration coupons that, upon inspection, were also found to be counterfeit. Di Re was convicted of violating 50 U.S.C. App. § 673 (Supp. V 1946), the Second War Powers Act of 1942.

The Court held that on those facts it would not draw an inference of participation in the crime by Di Re, who, being present in the car, must have observed the unlawful transaction. United States v. Di Re, 332 U.S. at 593-594. Her case exactly, the defendant argues. There are, however, differences. It was not apparent, the Court reasoned, that Di Re would have known the ration coupons were counterfeit. Id. at 393. The Court also emphasized that the informer’s tip mentioned only Buttitta, id. at 592, and that, when the counterfeit coupons had been passed and the inspectors had arrived, “Reed, present as the informer, pointed out Buttitta, and Buttitta only, as a guilty party.” Id. at 594. On the basis of everything the OPA inspector and the police detective knew when they arrested Di Re, he may have, indeed, just been along for the ride.

In Commonwealth v. Sampson, 20 Mass. App. Ct. at 971, an affidavit, in support of an application for a warrant to search the defendant Sampson, recited that Sampson was seated at a table in a drinking establishment. Another man at the same table was writing pool numbers on a pad of paper. When police entered the bar, the man with the writing pad tried to conceal it. Sampson made no furtive gesture or movement. We decided that those facts did not establish probable cause to search Sampson. See ibid. “A person’s proximity, without more, to others independently suspected of criminal activity does not establish probable cause to search that person.” Id. at 971, and cases there cited.

Considerably in the aftermath of Di Re, Justice Stevens, dissenting in Wyoming v. Houghton, 526 U.S. 295, 309 (1999), referred to a “settled distinction between drivers and pas[566]*566sengers” as to who may be searched. Yet the distinction is not that absolute.

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Bluebook (online)
784 N.E.2d 668, 57 Mass. App. Ct. 562, 2003 Mass. App. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fernandez-massappct-2003.