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99 COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss. SUPERIOR COURT CRIMINAL ACTION No. 14-1204 COMMONWEALTH a AUS 20 20 be DERRICK BROWN Chung MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS, ‘The Defendant, Derrick Brown, is charged with Unlawful Distribution of a Controlled Substance (Class B ~ Cocaine) Subsequent Offense. For the reasons set forth below, Mr. Brown’s Motion is ALLOWED. I. FINDINGS OF FACT Based upon the preponderance of the credible evidence adduced at hearing, I find as follows: Springfield Police Detective Mark Templeman has been a member of the Springfield Police Department for approximately twenty years. He has been assigned to the Nercoties Bureau for 10 years, On February 12, 2014, Detective Templeman was working as an undercover officer in the purchase of crack cocaine at 168 East St., Springfield (hereinafter referred to as the “Premises”). Detective Templeman arrived at the Premises at approximately 5:10 PM on that date. For the two week period prior to 2/12/14, the police had been investigating the Premises for suspected narcotics activity. Detective Templeman was inside the Premises for approximately 20 to 30 minutes. ‘When he entered the Premises, individuals were smoking a small amount of crack cocaine. Detective Templeman gave Sabrina Hoppe Brown $100 pre-recorded buy money for approximately 1/16 of a gram of crack cocaine. Ms. Hoppe left the Premises with the money and was outside for two three minutes when she returned with the crack cocaine, When Ms. Hoppe returned with the crack cocaine, she gave it to Detective Templeman and left. Detective Templeman never saw Mr, Brown at the Premises. Although there were support officers outside the Premises, Detective Templeman did not make visual contact with them. On that same date, Springfield Police Officers Detective Greg Bigda and Lieut. Stephen Kent were involved in a series of undercover narcotic buys at the Premises. Both are experionced narcotics detectives. The two travelled to the vicinity of the Premises in an unmarked cruiser at approximately 5:10 PM. Lieut, Kent was operating the cruiser’s radio and Detective Bigda was driving, At that time, Detective Bigda and Lieut. Kent were performing a stationary surveillance near Bowles Park and the Premises, After twenty to thirty minutes, they observed Mr. Brown. operating a white Toyota Camry (hereinafter referred to as the “Camry”), Mr. Brown parked the Camry alongside Bowles Park. The officers were approximately 200 feet from the Camry with. an unobstructed view utilizing binoculars. Lieut. Kent radioed a deseription of a 30 to 35 year old black male with a dark complexion. Both officers identified Mr. Brown in court as the operator of the Camry. Detective Bigda and Lieut. Kent’s observations as to what ensued are significantly different. Detective Bigda testified that he observed the Camry stopped next to Bowles Park. Detective Bigda testified that as he and Lieut. Kent drove past the Camry, he observed a woman exit the Premises, approach the Camry, and enter the Camry. The Premises is several houses away from the area where the Camry had been parked. He testified that the Camry drove around the block with Detective Bigda and Lieut. Kent in “leap frog” pursuit. Detective Bigda testified that Mr, Brown dropped the woman off several blocks from the Premises and drove off. Licut. Kent likewise testified that he observed the Camry stop next to Bowles Park. But, Lieut. Kent testified that Mr, Brown was and remained the lone occupant ofthe Camry. According to Lieut. Kent, he and Detective Bigda drove past and pursued the Camry as Mr. Brown droved away. ‘The officers’ observations are inconsistent in a manner which is fundamental. No evidence was presented that Lieut. Kent observed a woman exit the Premises, approach the Camry, and enter the Camry. No evidence was presented that Lieut. Kent observed the Camry drive around the block, and that Mr. Brown dropped the women off several blocks from the Premises and drove off. ‘The distinctions in Detective Bigda and Lieut. Kent’s observations is not de minimus. In light of the material inconsistencies in Det. Bigda and Lieut. Kent’s testimonies relating to their observations of Mr. Brown and the Camry while in the vicinity of Bowles Park and the Premises, 1 oredit neither testimony as to such observations. Both officers testified that they pursued the Camry to lower Franklin Street where Mr. Brown stopped end briefly spoke with a female, The Camry continued onto Hartley Street and toward Newbury Street. Springfield Police Officer Jose Feliciano has been a member of the Springfield Police Department for approximately twenty years. On February 12, 2014, Officer Feliciano was patrolling in a marked cruiser with Officer Manny Ayala. Both were in uniform. The officers received a telephone call from Detective Templeman giving them a description of the Camry including a New York license plate number. ‘The officers were asked to stop the Camry and obtain identification information from Mr. Brown, Officers Feliciano and Ayala first observed the Camry in front of 50 Hartley Street. The Camry ‘met the description they received from Detective Templeman, Although Officer Feliciano could ‘not ascertain the precise license plate number for the Camry, he did observe that the Camry bore a New York registration. When Officer Feliciano first observed the Camry, it was stationary and unoccupied. The Officers parked one-half block down the street from the Camry. Shortly thereafter, they observed Mr. Brown enter the Camry alone. Mr. Brown was committing no ‘taflic infraction. The officers activated their overhead lights and stopped Mr. Brown. They did so because he was the subject of Detective Templeman’s investigation. Offficer Feliciano asked Mr. Brown for his driver’s license and registration. ‘The Officers told Mr. Brown that they were performing an investigation of a robbery that had occurred at Liberty Plaza. Officer Feliciano asked Mr. Brown where he lived. Mr. Brown replied that he lived on Massreco Street, That address did not match that on Mr. Brown's driver’s license, The Officers checked Mr, Brown’s personal information. In turn, they advised Mr. Brown that he ‘was not the individual they were looking for and was free to go. The entire stop lasted approximately 8 minutes. Officer Feliciano telephoned Detective Templeman and relayed Mr. Brown’s name and date of birth. Officer Feliciano had no further involvement with the investigation, When Detective Bigda and Lieut. Kent returned to the police station, Detective Templeman showed them a single photo of Mr. Brown, The two officers confirmed that he was the individual they had observed in the Camry on February 12, 2014 in the vicinity of Bowles Park and the Premises. go ao On February 13, 2014, at 4:45 PM, Lieut. Kent and Detective Bigda retumed to 50 Hartley Street in furtherance of their investigation. On that date, they saw the Camry parked in front of 50 Hartley Street, Mr. Brown was shoveling snow in front of the residence. Il, DISCUSSION The police were not justified in stopping the Camry, It is well-settled that, “A police officer may stop a vehicle in order to conduct a threshold inquiry iC he has a reasonable suspicion that the occupants have committed, are committing, or about to commit a crime.” Commonwealth v. Wren, 391 Mass. 705, 707 (1984). The suspicion must “be based on specific and articulable facts and specific reasonable inferences which follow from such facts in light of the Officer's experience.” Commonwealth v. Silva, 366 Mass. 402, 406 (1974). ‘The police had no reasonable suspicion to stop the Camry. The facts established lead to xo reasonable suspicion that Mr. Brown had committed, was committing, or was about to commit a crime.” In particular, the Commonwealth has not met its burden of proof in establishing a nexus between Mr. Brown and the controlled buy of crack cocaine to Detective ‘Templeman. Asa result of the Commonwealth’s failure to have met its burden of proof, the identification information Officers Ayala and Feliciano procured, the RMV photo the police query produced, and Detective Bigda and Lieut. Kent’s subsequent identification of that photo constitute “fruit of the poisonous tree” derivative of the unlawful stop. See Wong Sun v. United States, supra at 486 (1963). ORDER For the foregoing reasons, it is hereby ORDERED that the Defendant’s Motion to Vee D MASON Justice of the Superior Court Suppress is ALLOWED. DATE: August 20, 2015