Commonwealth v, Sanders (Lawyers Weekly No. 11-164-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1100 Appeals Court COMMONWEALTH vs. EMERY SANDERS. No. 15-P-1100. Essex. October 7, 2016. – November 15, 2016. Present: Agnes, Maldonado, & Desmond, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Assistance of counsel. Search and Seizure, Probable cause. Probable Cause. Constitutional Law, Search and seizure, Probable cause, Assistance of counsel. Indictments found and returned in the Superior Court Department on August 5, 2013. A pretrial motion to suppress evidence was heard by David A. Lowy, J., and the cases were tried before James F. Lang, J. James E. Methe for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. AGNES, J. For more than seventy-five years, we have avoided an overly formulaic approach to the determination of whether there is probable cause to search or arrest a person who is suspected of participation in a street-level drug transaction. Instead we endorsed the observation made in Brinegar v. United States, 338 U.S. 160, 175 (1949): “In dealing with probable cause, however, . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act.” For example, in Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), the Supreme Judicial Court set forth a nonexclusive list of factors that, when taken together, support a ruling that there was probable cause to search a person in the context of a suspected street-level drug transaction. In Commonwealth v. Kennedy, 426 Mass. 703, 708-711 (1998), the court added that while there is no per se rule (and the court declined to adopt such a rule) that an officer must observe an identifiable object being passed or received in order to have probable cause to believe a street-level drug transaction had occurred, “whether the officer sees an object exchanged is an important piece of evidence that supports probable cause, and its absence weakens the Commonwealth’s probable cause showing.” More recently, in Commonwealth v. Stewart, 469 Mass. 257, 263 (2014), the court took a step beyond Kennedy, and stated that, in these cases, “the suspect’s movements, as observed by the officer, must provide factual support for the inference that the parties exchanged an object.” See Commonwealth v. Ilya I., 470 Mass. 625, 631 (2015). […]