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
23-P-696
COMMONWEALTH
vs.
KENNETH FLOHR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kenneth Flohr, was charged in the District
Court with possession with intent to distribute a class A
substance and illegal possession of ammunition. The defendant
filed a motion to suppress evidence obtained from the stop of
the motor vehicle in which he was a passenger. Following an
evidentiary hearing, a District Court judge determined that the
police officers involved in the matter did not have reasonable
suspicion to justify the stop. The Commonwealth obtained leave
to file an interlocutory appeal. See Mass. R. Crim. P. 15 (a)
(2), as amended, 476 Mass. 1501 (2017). We reverse.
Background. We summarize the facts as found by the motion
judge, supplemented with uncontested evidence from the record.
See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
On February 3, 2022, Detective Robert Bruner of the Street Narcotics Enforcement Unit (SNEU) observed a truck with two
occupants and Maine license plates traveling South on Broadway
Street in Lawrence around 3 P.M. After running a registry
query, he discovered that the truck's owner lived an hour and
one-half away. The truck pulled over to the side of the road
and remained there for approximately thirty-five minutes. Then
the truck traveled to a Dunkin' Donuts, "[w]ent through the
drive-thru," and parked for another twenty minutes. The truck
then became mobile again and traveled a short distance to a side
road, where it pulled over and parked.
After approximately ten minutes, the defendant, who was
unknown to the officers, got out of the passenger side of the
truck and walked away from it. A taxicab then drove up and
parked in front of the truck. A male subject exited the cab
(cab passenger), walked away from it, and stopped in a nearby
residential driveway. The defendant walked back to the truck
and stopped at the driver's side. From about 300 to 400 feet
away, Detective Bruner watched the defendant and the driver of
the truck appear to exchange something.
Next, the defendant walked away from the truck. As he did
so, he was "looking down at and manipulating his cellphone." At
the same time, the cab passenger was "looking at and . . .
manipulating his cellphone." The defendant and the cab
passenger then appeared to acknowledge each other's presence,
2 both walked toward the truck, and stopped in front of it. From
about thirty to thirty-five feet away, Detective Jordany Vargas,
also of the SNEU, observed the defendant and the cab passenger
appear to exchange something. While "he could not see anything
'physically exchanged,'" Detective Vargas testified that he
"could see their hands touch." The defendant then got back into
the truck and left the scene. The officers believed that they
had observed a drug transaction, and thus initiated a motor
vehicle stop of the truck and recovered contraband in connection
with the stop.
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" (quotation and citation
omitted). Jones-Pannell, 472 Mass. at 431. Although we give
the facts found by the judge deference, we "independently
determine whether the judge correctly applied constitutional
principles to the facts as found." Commonwealth v. Isaiah I.,
450 Mass. 818, 821 (2008).
In the present case, the sole question before us is
whether, at the time of the stop, 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 Commonwealth v. Matta, 483 Mass.
3 357, 365 (2019). In determining whether reasonable suspicion
exists, we consider "the whole 'silent movie' disclosed to the
eyes of an experienced narcotics investigator." Commonwealth v.
Santaliz, 413 Mass. 238, 242 (1992). Reasonable suspicion must
be based on "specific, articulable facts and reasonable
inferences [drawn] therefrom" (citation omitted). Commonwealth
v. DePeiza, 449 Mass. 367, 371 (2007). "[A] combination of
factors that are each innocent of themselves may, when taken
together, amount to the requisite reasonable belief."1
Commonwealth v. Phillips, 452 Mass. 617, 626 (2008), quoting
Commonwealth v. Fraser, 410 Mass. 541, 545 (1991).
The facts here, taken together, gave the detectives
reasonable suspicion to believe that the defendant had engaged
in criminal activity. Specifically, as found by the judge,
Detectives Bruner and Vargas are experienced narcotics
investigators. Detective Bruner had been a member of the
Lawrence Police Department for eight years, a detective in the
1 In allowing the defendant's motion to suppress, the judge stated that "[w]hat is missing is that one 'plus' factor that would elevate this suspicious conduct into the realm of reasonable suspicion." The judge cites no authority to support the proposition that a "plus factor" is required to find reasonable suspicion in this analysis. Under our precedent, we consider the facts in their totality, without recognizing any single factor as determinative or dispositive, or requiring any "plus factor." See Commonwealth v. Ford, 100 Mass. App. Ct. 712, 716 (2022) (stating "the basic principle that a court considers the totality of the circumstances when assessing reasonable suspicion").
4 SNEU for two and one-half years, and had made "hundreds of
narcotics arrests," and while Detective Vargas had been with the
department for six and one-half years, a detective in the SNEU
for two years, and had been involved in "over a hundred"
narcotics investigations and arrests. See Commonwealth v. Santa
Maria, 97 Mass. App. Ct. 490, 494 (2020); Santaliz, 413 Mass. at
241. The truck in which the defendant was a passenger had an
out-of-State license plate2 and had traveled to an area in which
both detectives "had made a number of narcotics related
arrests." See Commonwealth v. Evelyn, 485 Mass. 691, 709 (2020)
("high crime" area factor may be considered where "high crime"
nature of area has a "direct connection with the specific
location and activity being investigated" [citation omitted]).
Furthermore, the truck in the present case drove around a
small geographic area for approximately an hour in a manner
consistent with a planned meeting. See Alvarado, 93 Mass. App.
Ct.
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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
23-P-696
COMMONWEALTH
vs.
KENNETH FLOHR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kenneth Flohr, was charged in the District
Court with possession with intent to distribute a class A
substance and illegal possession of ammunition. The defendant
filed a motion to suppress evidence obtained from the stop of
the motor vehicle in which he was a passenger. Following an
evidentiary hearing, a District Court judge determined that the
police officers involved in the matter did not have reasonable
suspicion to justify the stop. The Commonwealth obtained leave
to file an interlocutory appeal. See Mass. R. Crim. P. 15 (a)
(2), as amended, 476 Mass. 1501 (2017). We reverse.
Background. We summarize the facts as found by the motion
judge, supplemented with uncontested evidence from the record.
See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
On February 3, 2022, Detective Robert Bruner of the Street Narcotics Enforcement Unit (SNEU) observed a truck with two
occupants and Maine license plates traveling South on Broadway
Street in Lawrence around 3 P.M. After running a registry
query, he discovered that the truck's owner lived an hour and
one-half away. The truck pulled over to the side of the road
and remained there for approximately thirty-five minutes. Then
the truck traveled to a Dunkin' Donuts, "[w]ent through the
drive-thru," and parked for another twenty minutes. The truck
then became mobile again and traveled a short distance to a side
road, where it pulled over and parked.
After approximately ten minutes, the defendant, who was
unknown to the officers, got out of the passenger side of the
truck and walked away from it. A taxicab then drove up and
parked in front of the truck. A male subject exited the cab
(cab passenger), walked away from it, and stopped in a nearby
residential driveway. The defendant walked back to the truck
and stopped at the driver's side. From about 300 to 400 feet
away, Detective Bruner watched the defendant and the driver of
the truck appear to exchange something.
Next, the defendant walked away from the truck. As he did
so, he was "looking down at and manipulating his cellphone." At
the same time, the cab passenger was "looking at and . . .
manipulating his cellphone." The defendant and the cab
passenger then appeared to acknowledge each other's presence,
2 both walked toward the truck, and stopped in front of it. From
about thirty to thirty-five feet away, Detective Jordany Vargas,
also of the SNEU, observed the defendant and the cab passenger
appear to exchange something. While "he could not see anything
'physically exchanged,'" Detective Vargas testified that he
"could see their hands touch." The defendant then got back into
the truck and left the scene. The officers believed that they
had observed a drug transaction, and thus initiated a motor
vehicle stop of the truck and recovered contraband in connection
with the stop.
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" (quotation and citation
omitted). Jones-Pannell, 472 Mass. at 431. Although we give
the facts found by the judge deference, we "independently
determine whether the judge correctly applied constitutional
principles to the facts as found." Commonwealth v. Isaiah I.,
450 Mass. 818, 821 (2008).
In the present case, the sole question before us is
whether, at the time of the stop, 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 Commonwealth v. Matta, 483 Mass.
3 357, 365 (2019). In determining whether reasonable suspicion
exists, we consider "the whole 'silent movie' disclosed to the
eyes of an experienced narcotics investigator." Commonwealth v.
Santaliz, 413 Mass. 238, 242 (1992). Reasonable suspicion must
be based on "specific, articulable facts and reasonable
inferences [drawn] therefrom" (citation omitted). Commonwealth
v. DePeiza, 449 Mass. 367, 371 (2007). "[A] combination of
factors that are each innocent of themselves may, when taken
together, amount to the requisite reasonable belief."1
Commonwealth v. Phillips, 452 Mass. 617, 626 (2008), quoting
Commonwealth v. Fraser, 410 Mass. 541, 545 (1991).
The facts here, taken together, gave the detectives
reasonable suspicion to believe that the defendant had engaged
in criminal activity. Specifically, as found by the judge,
Detectives Bruner and Vargas are experienced narcotics
investigators. Detective Bruner had been a member of the
Lawrence Police Department for eight years, a detective in the
1 In allowing the defendant's motion to suppress, the judge stated that "[w]hat is missing is that one 'plus' factor that would elevate this suspicious conduct into the realm of reasonable suspicion." The judge cites no authority to support the proposition that a "plus factor" is required to find reasonable suspicion in this analysis. Under our precedent, we consider the facts in their totality, without recognizing any single factor as determinative or dispositive, or requiring any "plus factor." See Commonwealth v. Ford, 100 Mass. App. Ct. 712, 716 (2022) (stating "the basic principle that a court considers the totality of the circumstances when assessing reasonable suspicion").
4 SNEU for two and one-half years, and had made "hundreds of
narcotics arrests," and while Detective Vargas had been with the
department for six and one-half years, a detective in the SNEU
for two years, and had been involved in "over a hundred"
narcotics investigations and arrests. See Commonwealth v. Santa
Maria, 97 Mass. App. Ct. 490, 494 (2020); Santaliz, 413 Mass. at
241. The truck in which the defendant was a passenger had an
out-of-State license plate2 and had traveled to an area in which
both detectives "had made a number of narcotics related
arrests." See Commonwealth v. Evelyn, 485 Mass. 691, 709 (2020)
("high crime" area factor may be considered where "high crime"
nature of area has a "direct connection with the specific
location and activity being investigated" [citation omitted]).
Furthermore, the truck in the present case drove around a
small geographic area for approximately an hour in a manner
consistent with a planned meeting. See Alvarado, 93 Mass. App.
Ct. at 471 (observation of suspiciously short drive after which
The defendant argues that his "presence in Lawrence from 2
Maine deserves no weight because the officers offered minimal concrete testimony of how frequent drug transactions stem from Maine visitors" and consideration of this factor would "penalize [the defendant] for exercising his fundamental right to travel." Were we to view this factor in isolation, we might agree. However, our case law holds that, when accompanied by other evidence of a drug transaction, an out-of-State vehicle in an area known for drug activity may be considered in the totality of circumstances analysis. See, e.g., Commonwealth v. Alvarado, 93 Mass. App. Ct. 469, 471 (2018); Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 346 (2010).
5 one person exits car may be considered as circumstantial
evidence in context of drug sale investigation); Commonwealth v.
St. George, 89 Mass. App. Ct. 764, 767-768, 768 n.7 (2016)
("short trip," while "not dispositive of criminal activity,
standing alone" was of "suspicious nature . . . when combined
with the other attendant circumstances present"). While the
truck's strange driving and parking pattern alone "is not
dispositive of criminal activity," in the totality of the
circumstances it can be indicative of a drug transaction. Id.
at 768 n.7.
Most importantly, the defendant engaged in an unusual
transaction suggestive of criminal behavior. See Santaliz, 413
Mass. at 241 ("the unusual nature of the transaction . . . [and]
the furtive actions of the participants" indicate that defendant
was committing crime). Here, the defendant, after having been
inside the parked truck for ten minutes on a side road, exited
the passenger's side of the truck and began to walk away from
it; a cab then parked in front of the truck; the cab passenger
exited the cab, walked away, and stopped in a residential
driveway; the defendant walked back to the truck, stopped at the
driver's side, and exchanged something with the driver of the
truck; the defendant "then walked away from the truck again and
was looking down at and manipulating his cellphone" while, "[a]t
the same time," the cab passenger was looking at and
6 manipulating his cellphone; the defendant and cab passenger then
acknowledged each other's presence, moved toward each other,
walked toward the truck, stopped in front of it, touched hands,
and appeared to be exchanging something. The defendant then re-
entered the truck which left the scene. "[T]he quickness of the
interaction . . . reasonably could be interpreted by the
officer[s] as suspicious conduct" (citation omitted).3 Santa
Maria, 97 Mass. App. Ct. at 495. See Alvarado, 93 Mass. App.
Ct. at 471 (noting that "the brevity of the interaction between
the defendant and the vehicle's driver" was, among other facts,
a factor that "pointed to a drug transaction").
While it is conceivable that the defendant and cab
passenger could have been engaging in lawful activity, the
detectives' aforementioned observations, combined with their
experience, training, knowledge of incidents in the area, and
all the other factors and indicia discussed herein, provided
more than enough specific articulable facts to satisfy the
3 The defendant contends that his actions were not "furtive" because they were not done "in stealth or secrecy," as they occurred during the day and the officers were able to observe all his movements. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 39-40 (2020). This contention is unavailing. When considered with the other evidence of suspicious behavior here, the brevity and hurried nature of the exchange suggests that the transaction was intended to be done in stealth. Furthermore, the defendant cites no authority indicating that an action cannot be "furtive" if it is conducted during the day or in the presence of others.
7 reasonable suspicion standard. See Terry v. Ohio, 392 U.S. 1,
22 (1968) (threshold inquiry proper where "a series of acts,
each of them perhaps innocent in itself, but which taken
together warranted further investigation").4 Accordingly, the
motor vehicle stop was constitutionally permissible.
Order allowing motion to suppress reversed.
By the Court (Neyman, Hershfang & Hodgens, JJ.5),
Clerk
Entered: July 31, 2024.
4 We are not persuaded by the defendant's contention that the absence of testimony that the detectives observed an actual object being exchanged "detracts from any conclusion that a drug transaction occurred." See Santa Maria, 97 Mass. App. Ct. at 494 ("given the easily-concealed nature of small packages of drugs, an officer need not actually see an object exchanged in order to have probable cause," or in the same vein, reasonable suspicion); Commonwealth v. Sanders, 90 Mass. App. Ct. 660, 667 (2016) ("there are a myriad of factual scenarios in which such an inference [of a drug transaction] is reasonable despite the absence of any direct observation of an exchange").
5 The panelists are listed in order of seniority.