The case against Onaxis Barreto might seem like a good one: Police, acting on a tip a guy was driving around Roxbury with a large stash of cocaine in his green Volvo spotted Barreto driving a green Volvo stop and engage in what seemed like a drug transaction, so after watching him turn left without signaling, they stopped him and ordered him out of the car - in which a drug-sniffing dog found a box stuff with cocaine and cash.
But the Supreme Judicial Court ruled today prosecutors can't use the cocaine as evidence against Barreto. The state's highest court said it found large legal holes in each step of the process that led to his arrest - including the conclusion that his appearing nervous when talking to officers was not by itself enough evidence he might have committed a crime, because many people are nervous when confronted by police, even if they have nothing to hide.
The court did agree with Suffolk County prosecutors that police were justified in stopping Barreto after watching him make a left turn without signaling on June 9, 2014 in the area of Warren and Copeland streets, but it was all downhill in the decision after that for police and prosecutors as the justices continued their analysis of the stop and search.
A confidential informant had alerted police that somebody in a green Volvo would be in the area that night with a large amount of cocaine. But prosecutors did not provide any evidence in court as to "the basis of knowledge or the reliability of the confidential informant" who supplied the tip, the court said.
And while Barreto did stop his car and engage in some sort of discussion with a pedestrian, officers did not see anything actually pass from one man to the other, the court said, adding none of the officers knew the two men, so had not particular reason to believe they were the sort to engage in a drug deal - and they were in an area not particularly noted for drug transactions.
Although the pedestrian faced the defendant and moved one or both of his arms in a manner consistent with an exchange, the officers did not observe an object change hands and did not observe anything in the pedestrian's hands either before or after meeting the defendant. As the Appeals Court rightly pointed out, the observed movements were just as consistent with any number of innocent activities, such as briefly greeting an acquaintance or asking for directions after looking at a map, as they were with an illegal drug transaction. ...
In short, the observations made, without more, were insufficient for a stop on suspicion of criminal activity.
But the traffic stop was valid, so, the court continued, it had to figure out if that merited ordering Barreto out of his car, after which police called in a dog, who sniffed out a box hidden in the front passenger seat stuffed with cocaine and cash. The court concluded that no, Barreto should not have been ordered out of his car.
Where a vehicle has been stopped for an observed traffic violation, an exit order issued to a driver or passenger of the vehicle is justified if (1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds. See Amado, 474 Mass. at 151-152. As nothing in the facts found by the motion judge indicates that independent grounds for a search of the vehicle existed at the time of the stop, we look at whether the exit order was issued properly based on safety concerns or on reasonable suspicion of criminal activity once police stopped the defendant. Upon review, we conclude that there was no valid basis for the exit order.
And here is where the question of nervousness came in:
When the defendant was pulled over, police observed that he was breathing heavily, he avoided making eye contact when answering questions, and he appeared nervous. He also looked in his rear view and side view mirrors at the several police officers and vehicles that had arrived. At the same time, the defendant responded to the officers' questions, complied with all requests, and made no movements consistent with reaching for a weapon after he was stopped.
People are often nervous when stopped by the police, regardless of whether they have something major to be nervous about, the court said, so that alone is not an indication of a potential risk to police or the public.
Given that police did not have reasonable suspicion prior to the stop, the sole additional fact that the defendant appeared nervous after the stop cannot create reasonable suspicion [to merit ordering the driver out].
So if the police did not have probable cause to stop Barreto for a drug investigation and he did nothing to merit being ordered out of his car after a traffic infraction, the "exit order" was improper and nothing found after he was out of his car can be used as evidence against him, because it is "fruit of the poisonous tree," the court concluded.