Commonwealth v. Ellis

12 Mass. App. Ct. 476 (1981)

426 N.E.2d 172

COMMONWEALTH vs. EDWARD ELLIS.

Appeals Court of Massachusetts, Plymouth.

September 10, 1981.

September 30, 1981.

Present: HALE, C.J., BROWN, & GREANEY, JJ.

Margaret H. Van Deusen for the defendant.

Robert M. Payton, Assistant District Attorney, for the Commonwealth.

BROWN, J.

The defendant appeals from his conviction on a complaint charging possession of a controlled substance with intent to distribute. See G.L.c. 94C, § 32. A complaint charging him with possession was placed on file, without objection, and hence is not before us. See Commonwealth v. Hoffer, 375 Mass. 369, 370 n. 1 (1978).

The defendant claims that the stop of his automobile and the warrantless search of the pocket of a jacket seized from the floor of that automobile violated his Fourth Amendment rights. On the record before us it appears that the judge erred in denying the defendant's motion to suppress the contraband, as the stop of the defendant's car was not based on *477 reasonable suspicion that a crime had been committed, or was about to be committed.[1] See Commonwealth v. Silva, 366 Mass. 402, 405 (1974); Commonwealth v. Ferrara, 376 Mass. 502, 504 (1978); Commonwealth v. Bacon, 381 Mass. 642, 643-644 (1980). See also Brown v. Texas, 443 U.S. 47, 52-53 (1979); Commonwealth v. Almeida, 373 Mass. 266, 270 (1977). Contrast Commonwealth v. Tisserand, 5 Mass. App. Ct. 383, 384-385 (1977); Commonwealth v. Moschella, 11 Mass. App. Ct. 1021, 1022 (1981).

The only information known to the police officer prior to his stop of the automobile and "seizure" of its occupants was that (1) three persons[2] had been conversing through the window of a car in a parking lot, (2) the person standing outside the automobile passed what the officer believed to be money into the automobile, and (3) something was returned to this person from inside the automobile. Contrast Commonwealth v. Riggins, 366 Mass. 81, 86-87 (1974), and cases cited; Commonwealth v. Stinson, 6 Mass. App. Ct. 899 (1978).

From the evidence, we conclude that the stop of the defendant's automobile was based solely on the officer's "hunch" that he had observed the sale of drugs. See Commonwealth v. Silva, supra at 406. See also United States v. Price, 599 F.2d 494, 500 n. 7 (2d Cir.1979). There was no evidence to color the transaction. The officer had no information about the contents of the vehicle, contrast Commonwealth v. Ferrara, 10 Mass. App. Ct. 818 (1980); nor was there independent information, such as a tip, that a crime was being committed, contrast Commonwealth v. Cantalupo, 380 Mass. 173, 175-176 (1980), and cases cited; Adams v. Williams, 407 U.S. 143, 147 (1972). There *478 had been no report of a recent crime in that area, contrast Commonwealth v. Riggins, supra at 83-84; Commonwealth v. Ling, 370 Mass. 238, 239 (1976); Commonwealth v. Johnson, 6 Mass. App. Ct. 944, 945 (1978). Nor was there flight by the defendant, contrast Commonwealth v. Cavanaugh, 366 Mass. 277, 280-281 (1974), or even a rapid departure from the area, contrast Commonwealth v. Battle, 365 Mass. 472, 474 (1974).

Moreover, no additional information was gained by the officer upon following the car, contrast Commonwealth v. Johnson, supra at 946; no traffic violation was committed, contrast Commonwealth v. Hawkes, 362 Mass. 786, 787 (1973); Commonwealth v. Harris, 3 Mass. App. Ct. 343, 344 (1975), nor was any suspicious activity by either occupant observed prior to the stop, contrast Commonwealth v. Anderson, 366 Mass. 394, 400 (1974).

If the motion to suppress had been allowed the Commonwealth's case as presented would have been lacking in essential proof. Accordingly, the defendant's motion for a required finding of not guilty must now be allowed. See e.g., Commonwealth v. Silva, supra at 410-411.

Judgment reversed.

Verdict set aside.

Judgment for the defendant.

[1] Deciding as we do that the search was invalid in its inception, we do not find it necessary to reach the question whether "the scope of the search was justified by the circumstances." Commonwealth v. Silva, 366 Mass. 402, 405 (1974). See Terry v. Ohio, 392 U.S. 1, 19 (1968). Compare Commonwealth v. Ferrara, 376 Mass. 502, 504 (1978).

[2] Although the officer knew the defendant prior to this incident, it is unclear from the transcript whether, prior to the stop, he was aware that the defendant was the operator of the car.