Commonwealth v. Sifeddine Rogadi.

• Court: Massachusetts Appeals Court
• Decided: November 17, 2023
• Docket: 22-P-1219
• Status: Unpublished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-1219

COMMONWEALTH

vs.

SIFEDDINE ROGADI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Sifeddine Rogadi, was indicted for murder,

possession of a large capacity firearm, and possession of

ammunition without a firearms identification card. Following an

evidentiary hearing, a Superior Court judge allowed the

defendant's motion to suppress the seizure of a car, and the

firearm found therein, but denied it as to statements made by

the defendant. After its motion for reconsideration was denied,

the Commonwealth filed an application for leave to pursue an

interlocutory appeal with the single justice of the Supreme

Judicial Court. The single justice ordered the Commonwealth to

supplement its application with a statement as to the viability

of its case without the suppressed evidence. The Commonwealth

filed a response, and the single justice allowed the Commonwealth's application and ordered that the interlocutory

appeal proceed in this court. We affirm.

1. Background. We recite the facts as set forth in the

judge's memorandum and order. On December 29, 2020, Jaden

Brito-White was shot and killed in the area of 10 Bowdoin Street

in Malden by two people, whom a witness described as wearing

dark clothing. The police did not know the race or gender of

the shooters, nor did they have any other specific information

other than that the shooters wore dark clothing. Investigators

collected video recordings (video) from the area in an effort to

identify the car that the shooters drove to and from the scene.

In addition to video from the immediate area where the victim

was killed, investigators collected video that showed a car

(suspect car) that investigators believed was involved in the

shooting. Video showed that the suspect car drove into a

parking lot next to 10 Bowdoin Street, exited the parking lot,

and drove onto an intersecting street.

Over the next several days, investigators collected

additional videos. Based on their review, investigators

determined that the suspect car was a "maroon-purple color,"

specifically "black cherry metallic," a color found on only two

2 specific Chevrolet models, the Malibu and the Impala.1 On

January 5, 2021, investigators drafted a public bulletin for

distribution to other police departments. The bulletin

described the suspect car as "a newer model Chevrolet Impala or

Malibu with a 'black cherry metallic color' . . . [and] no front

registration plate." That same day, two investigators were in

the field collecting additional videos when they saw a "Chevy

Malibu, with no front plate and the distinct fog lights, coming

up Gledhill . . . on the night of the shooting." Investigators

followed the car as it sped through residential neighborhoods,

and instructed Malden police to pull it over.

Police officers pulled over the car, told the driver, later

identified as the defendant, that they pulled him over for

speeding, and asked him to get out of the car. Investigators

noticed that the car had a white transponder box on the

windshield and a moon roof, similar to what they observed in a

video of the suspect car. Upon questioning, the defendant told

police that his mother rented the car on December 27, 2020, and

that only he and his mother used it. After police wrote a

speeding citation, they told the defendant that they were

seizing the car because they "believe[d] [the] vehicle was

1 In a video, an investigator noticed a "Chevrolet emblem" on the car's grill which allowed them to narrow down the manufacturer of the car.

3 involved in a very serious incident that happened several days

prior." The defendant left on foot, the car was seized, and a

warrant was later issued to search it. A semiautomatic firearm

was found in the car.

2. 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). Here,

despite what he described as an exhaustive investigation, the

judge concluded that the police lacked probable cause to seize

the car. He did not credit the investigators' testimony about

the information they had about the suspect car at the time that

they stopped the defendant. Specifically, the judge found that

the "distinctions between the draft bulletin and the later

testimony during the hearing are difficult to reconcile and

certainly create doubt about [whether] the car seen in the video

was the one seized." The Commonwealth contends this finding was

in error. We are not persuaded as "[t]he determination of the

weight and credibility of the [evidence] is the function and

responsibility of the judge who saw and heard the witnesses, and

not of this court." Commonwealth v. Gonzalez, 487 Mass. 661,

668 (2021), quoting Commonwealth v. Neves, 474 Mass. 355, 360

(2016).

4 In determining whether the police have probable cause to

conduct a warrantless seizure, "we ask whether 'the information

possessed by police, at the time of the proposed warrantless

search, provide[d] a substantial basis for the belief that there

[was] a timely nexus or connection between criminal activity, a

particular person or place to be searched, and particular

evidence to be seized.'" Commonwealth v. Dame, 473 Mass. 524,

537, cert. denied, 580 U.S. 857 (2016), quoting

Commonwealth v. Cataldo, 69 Mass. App. Ct. 465, 470 (2007).

In the context of vehicle seizures, probable cause exists

"where facts indicated that there was a connection between the

crime and the vehicle." Dame, 473 Mass. at 537. See

Commonwealth v. Brown, 367 Mass. 24, 33 (1975) (probable cause

existed for warrantless search of car as eyewitness described

suspects by name, and identified car as yellow Toyota station

wagon with roof rack, dented side and loose front license

plate). See also Commonwealth v. Gentile, 437 Mass. 569, 573-

574 (2002) (probable cause existed for warrantless search of car

when it was last known location of victim, and evidence of

victim's disappearance might be contained therein). These cases

are notable because the police had unique identifying factors

tying the car or its occupants to the crime. By contrast, here

the police had a basic description of the suspects' clothing and

a broad description of the type of car (a newer model Chevrolet

5 Malibu or Impala), its color (black cherry metallic), and the

lack of a front license plate. More was needed as "probable

cause must be based on particularized facts, not 'simply general

conclusions.'" Commonwealth v. Perry, 489 Mass. 436, 458

(2022), quoting Commonwealth v. Rosetti, 349 Mass. 626, 632

(1965). When the car was seized, investigators did not have

particularized facts to connect it to the shooting.

Because the police did not have "a timely nexus or

connection between criminal activity" and the car seized by

investigators, Dame, 473 Mass. at 537 (quotation omitted), the

evidence derived from the seizure was also properly suppressed.

See Commonwealth v. Fredericq, 482 Mass. 70, 78 (2019).

Order allowing in part motion to suppress affirmed.

Order denying motion for reconsideration affirmed.

By the Court (Blake, Massing & Hand, JJ.2),

Clerk

Entered: November 17, 2023.

2 The panelists are listed in order of seniority.