on May 17, 2011 the SJC ruled in COMMONWEALTH vs. ANDREW LEVY 459 Mass. 1010 (2011) that police lacked probable cause to arrest the defendant for drug dealing. The discussion brings up several helpful cases in analyzing the facts that police on the street can find very useful however, specifically Comm. v. Kennedy and their reiteration that they reject a per se rule of officers actually seeing an exchange of some type in establishing probable cause.
The court stated in their decision “The defendant, charged in the District Court with possessing cocaine with intent to distribute and doing so in a school zone, moved successfully to suppress drugs that were seized from his person. The Commonwealth was granted leave by a single justice of this court to pursue an interlocutory appeal to the Appeals Court. The Appeals Court held that the motion to suppress should have been denied. Commonwealth v. Levy, 76 Mass. App. Ct. 617 (2010). We granted the defendant’s application for further appellate review. We affirm the decision of the District Court judge allowing the defendant’s motion.
Discussion. The question we address is whether the police had probable cause to arrest the defendant and search his boot. We conclude that they did not. The central cases that the Commonwealth relies on, Commonwealth v. Kennedy, 426 Mass. 703 (1998), and Commonwealth v. Santaliz, 413 Mass. 238 (1992), are distinguishable from this case in material respects. In the Santaliz case, an experienced police officer saw, among other things, an actual exchange of an object for cash, and the exchange was made in front of a “soup kitchen” specifically known for a high incidence of illicit drug activity. See Commonwealth v. Santaliz, supra at 239-240. In the Kennedy case, an experienced police officer saw, among other things, an exchange of items between two individuals at a specific intersection known for complaints about drug activity, and one of the individuals was known by the officer to have been arrested previously for selling drugs. See Commonwealth v. Kennedy, supra at 704-705. See also Commonwealth v. Coronel, 70 Mass. App. Ct. 906 , 906-907 (2007) (officer saw individual make brief call from public telephone, enter defendant’s vehicle for ten to fifteen seconds, and emerge stuffing something in his pocket; vehicle was in area known for drug activity; and officer had previously arrested defendant for trafficking in cocaine from same vehicle).
Here, the facts known to the officers at the time of the search of the defendant are not as compelling as those in the Kennedy, Santaliz, and Coronel cases. No officer saw an actual exchange of any kind. While we reject a per se rule that an officer must actually see an object exchanged to have probable cause to arrest, seeing such an exchange “is an important piece of evidence that supports probable cause, and its absence weakens the Commonwealth’s probable cause showing.” Commonwealth v. Kennedy, supra at 711. In addition, neither the defendant nor anyone else involved in the events was recognized
as having a history with illegal drugs. See id. at 709 (“We have often recognized that a police officer’s knowledge of the reputation for drug use or drug dealing of persons interacting with a defendant, even though not sufficient alone, is a factor to support probable cause to arrest the defendant”). As the Appeals Court properly noted, this case presents “a close question.” Commonwealth v. Levy, supra at 622. We said the same in the Santaliz case, which involved more suspicious facts than here. See Commonwealth v. Santaliz, supra at 241. On balance, the facts of this case fall short of those necessary to constitute probable cause.
The series of events seen by the experienced surveilling officer, however, were more than sufficient for reasonable suspicion. We thus agree with the judge that the quantum of facts known to the police justified a stop of the defendant for questioning. But without more, those facts did not justify the search of the defendant’s boot, which required probable cause.
Conclusion. For these reasons, the defendant’s motion to suppress the drugs seized from his boot was properly allowed.
Attorney Ronald A. Sellon