Commonwealth v. Santiago
Commonwealth v. Santiago
Opinion
*792 Following a jury trial, the defendant was convicted of possession of a firearm, second offense, 1 and possession of a loaded firearm. On appeal, the defendant argues that a Superior Court judge (motion judge) erred in denying his motion to suppress the firearm and some cash discovered during a stop of the vehicle in which the defendant was a passenger. The defendant asserts that police conduct during the stop -- including boxing the vehicle in *793 and approaching with guns drawn -- escalated the encounter to an arrest, for which probable cause was lacking.
After considering the circumstances as a whole, we conclude that the officers' show of force was sufficiently significant to convert the stop to an arrest. Because the Commonwealth concedes that there was no probable cause to arrest the defendant at the time, the motion to suppress should have been allowed. Accordingly, we reverse the convictions.
1.
Background
. We summarize the motion judge's detailed findings of fact, supplementing with additional facts from testimony that the judge implicitly credited. See
Commonwealth
v.
Isaiah I.
,
In the summer of 2014, State police were conducting an investigation into suspected drug dealing in Lawrence, centering on the defendant, and using a confidential informant. During the investigation, officers determined that the defendant was known to the Lawrence police and had a prior conviction of a firearms offense. The confidential informant told police that the defendant was selling cocaine and was "involved with firearms."
On August 6, 2014, police initiated surveillance of the defendant based on the informant's report that the defendant would be traveling to Lynn to pick up cocaine to bring to Lawrence. The surveillance team comprised multiple officers from the State police, the Federal Drug Enforcement Administration, and the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, in unmarked vehicles. During the course of the surveillance, officers observed the defendant, along with three other men about whom police apparently had no information, 2 depart a home in Lawrence in a red GMC Envoy sport utility vehicle. The defendant was seated in the right rear passenger's seat. The surveillance team followed the GMC surreptitiously. After making a number of stops in Lawrence and then in Lynn, at about 6:00 P.M. the defendant and his companions proceeded in the GMC to Route 114 westbound toward Lawrence.
*794 When the GMC reached a point where the road widened from one to two lanes and motorists often accelerate to pass slower vehicles, it suddenly more than doubled its speed, operating well over the posted speed limit. Believing that the GMC's occupants had detected the surveillance, officers decided to stop the GMC, rather than waiting for its expected return to Lawrence, as they had originally planned.
Officers contacted a uniformed State trooper who was patrolling the area in a marked cruiser and asked him to stop the vehicle. The trooper observed the GMC cross the double yellow line in the middle of the road twice. He turned on his cruiser's flashing lights, and the GMC pulled over promptly. The trooper's cruiser and at least three other unmarked police cars moved in around the GMC, effectively boxing it in.
Four or five officers simultaneously approached the GMC's four doors, yelling for the occupants to raise their hands. At least two of the officers had their guns drawn. As one officer neared the GMC, he observed the defendant, who was still sitting in the right rear passenger's seat, reach forward, pull open the seat-back pocket in front of him, and stuff an object into it. Suspecting that the defendant had attempted to conceal a firearm, the officer opened the left rear door and ordered the rear seat passengers not to move. He observed a firearm in the seat-back pocket in front of the defendant.
Officers ordered the defendant and other passengers out of the GMC and recovered a loaded revolver from the seat-back pocket. The defendant was arrested and searched, and just under $5,500 in cash was found on his person. No drugs were found.
*538 2. Discussion . The defendant agrees on appeal that the stop of the GMC was lawful and supported by observed traffic violations as well as reasonable suspicion of drug dealing. He maintains, however, that his motion to suppress was improperly denied because police conduct escalated the seizure to an arrest without probable cause. 3 We agree.
In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings unless clearly erroneous, see
Commonwealth
v.
White
,
"The Constitution does not require officers 'to gamble with their personal safety,'
Commonwealth
v.
Robbins
,
Whether a police seizure has been transformed into an arrest "depends on the proportional relationship of the degree of intrusiveness on the defendant to the degree of suspicion that prompted the intrusion."
Commonwealth
v.
Willis
,
We have held that "[a]n approach with drawn guns is generally thought excessive in the absence of any suggestion that the defendant is armed or other circumstances suggesting the possibility of violence."
Commonwealth
v.
Fitzgibbons
,
Here, the police response, viewed as whole, included the presence of multiple cars and officers, the use of four police vehicles to box the GMC in, and the approach of at least two officers with guns drawn. We conclude that this was disproportionate "to the degree of suspicion that prompted the intrusion" and constituted an arrest.
Willis
,
Here, "[t]he officers' use of force was not precipitated by any actions of the defendant[ ], nor did the officers testify that they
*796
feared for their safety or the safety of others at the time they approached the [GMC] with their guns drawn."
Bottari
,
The officers had no information about any history of violent conduct on the part of the defendant. Cf.
Commonwealth
v.
Ruiz
,
We acknowledge, as the Commonwealth argues, "that drug offenses frequently involve drug dealers being armed and that, in many cases, shootings and killings occur when a drug dealer is confronted by police, when a drug deal goes 'bad,' or when others try to steal the drugs."
Commonwealth
v.
Hines
,
At the time of the show of force here, police had not observed any furtive conduct by the defendant or his companions. Concerns about flight raised by the GMC's increase in speed would have been substantially alleviated when the vehicle promptly and uneventfully stopped when signaled by the marked cruiser.
6
Nor had any of the GMC's four occupants refused any police orders. Cf.
Commonwealth
v.
Torres
,
The officers were a part of an organized surveillance team comprising multiple State and Federal officers and were not outnumbered by the defendant and his companions. Cf.
Cabrera
,
In urging that the police conduct here at issue was a stop rather than an arrest, the Commonwealth relies largely on
Willis
and
Dyette
. That reliance is unavailing. In
Willis
, the information available to police raised significant articulable safety concerns: at the time of the stop, the defendant was reasonably believed to possess
*798
a loaded, stolen handgun, and the defendant had a prior arrest for a violent crime involving a weapon.
Willis
,
Similarly,
Dyette
involved multiple factors raising safety concerns not present here. In that case, officers in an unmarked car noticed the defendant trespassing in a park close to midnight.
Dyette
,
In contrast to Dyette , where the defendant engaged in plain (and chaotic) flight from officers, and halted only after the challenged show of force, here the evidence of flight was more equivocal, and ameliorated by the prompt compliance by the driver of the GMC with the police signal to stop. Unlike in Dyette , the place of the stop in this case was neither one at which the defendant's presence was itself *541 suspicious nor one associated with past violent crime. Additionally, Dyette involved a fleeing suspect's sudden encounter with a lone officer, who was forced to make a split-second decision about his own safety. Here the officers were engaged in a coordinated surveillance operation in which four police vehicles participated in the stop of the GMC; the officers decided when to make the stop and had time to discuss how they would proceed once the GMC pulled over. 7
We recognize that the fact-specific decisional law in this area may at times pose a difficult dilemma for police officers: "If the officer approaches a suspect[ ] ... with his gun still in his holster, he increases the risk that he will be shot. If, on the other hand, he protects himself by drawing his gun, he increases the risk that a court will set the criminal free by construing his action as an illegal arrest."
Fitzgibbons
,
We acknowledge that the question here is close, and our resolution of it necessarily "depends on the particular facts of [this] case."
Williams
,
Judgments reversed .
Verdicts set aside .
After a jury trial on the underlying charge, the defendant pleaded guilty to the subsequent offense portion of the indictment.
There was no evidence at the suppression hearing that officers knew the men's identities or of any criminal history they may have had.
Based in part on concerns about the reliability of the confidential informant, the motion judge concluded that "[u]nquestionably, the police did not have probable cause to arrest at the time that the stop was made," and on appeal, the Commonwealth concedes the point.
The court in
Hines
made the quoted observation in support of its interpretation of a statute providing enhanced punishment for felonies when a firearm was involved.
Hines
,
The Commonwealth also relies on
Commonwealth
v.
Moses
,
The officer who gave the order to stop the GMC testified, "[I]f they were aware of surveillance, the chance for them fleeing when [the trooper] turned the lights on, in my opinion, had just gone way up."
The trooper in the marked cruiser testified that he was given no information about the nature of the case and was instructed to follow the GMC and make a stop "once [he] saw a violation."
The Commonwealth has not argued that the gun would have inevitably been discovered even if the officers had not approached the stopped vehicle in the manner that they did, nor did the judge make findings on that issue. See
Commonwealth
v.
O'Connor
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.