MA: Egregious police conduct can confer target standing, but this case just doesn’t measure up

Egregious police conduct can confer target standing, but this case just doesn’t measure up. Commonwealth v. Santiago, 470 Mass. 574, 24 N.E.3d 560 (2015):

We reaffirm the view stated in Scardamaglia, 410 Mass. at 380, that in a case where the police engage in “distinctly egregious” conduct that constitutes a significant violation of a third party’s art. 14 rights in an effort to obtain evidence against a defendant, it may be appropriate to permit the defendant to rely on the standing of the third party to challenge the police conduct. For the reasons next discussed, however, we are not persuaded that the police in this case engaged in conduct that would warrant the adoption of such a target standing rule.

We accept the findings of the motion judge absent clear error, but determine independently “the correctness of the judge’s application of constitutional principles to the facts as found” (citation omitted). Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007) (quotation omitted). Based on his factual findings, the judge concluded that the absence of probable cause was obvious. We do not share this view. The evidence, in summary, showed that Catellier, the police officer who stopped the defendant and Ramos, had worked in the North End of Springfield for ten years, knew that it was a high crime area, and had made many drug arrests there. On the day of the arrest, Catellier saw the defendant riding his bicycle again — he had seen the defendant riding his bicycle two days earlier — then dismount and approach Ramos as the latter stepped out of a doorway. The defendant reached his arm out toward Ramos, “and then … Ramos appeared to put something in his shirt pocket.” Although Catellier did not see any item actually exchanged, the defendant’s extended arm and Ramos’s corresponding gesture in relation to his shirt pocket provided some basis for Catellier’s belief that a drug transaction between the two men had just taken place. Compare Commonwealth v. Stewart, 469 Mass. 257, 259-264, 13 N.E.3d 981 (2014) (police officer watched defendant, followed by three individuals, head down street known for drug use, huddle briefly with them in doorway, and then separate, but officer saw no exchange of any item or gestures between or among anyone in group; court concluded that based on officer’s experience and knowledge of defendant’s record, officer had reasonable ground to suspect drug transaction involving defendant had occurred, but not probable cause to arrest). At the least, as in Stewart, see id. at 261, there was a sufficient basis for Catellier to have reasonable suspicion of a drug transaction, and therefore to conduct a Terry-type stop of the defendant and Ramos. See Terry, 392 U.S. at 21-22.

Assuming that a Terry-type stop was justified but that there was no probable cause for an arrest, we agree with the judge that nothing in the situation suggested that Catellier had a reason to believe either the defendant or Ramos was armed or dangerous, and thus Catellier had no justifiable reason, after stopping the two men, to reach immediately into Ramos’s pocket without making any inquiry first. See Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974). But in the circumstances, where the existence of probable cause was close, we question the basis for the judge’s finding that Catellier “intentional[ly]” violated Ramos’s rights by reaching into his pocket and removing the small packet of cocaine; in any event, we reject the judge’s conclusion that this brief, limited search of Ramos’s shirt pocket constituted an “egregious” violation of his rights.

Finally, there is the question of target. The evidence before the judge — Catellier’s observation of the defendant two days earlier on May 14, 2012, and his related decision to conduct surveillance on May 16 of the two men — provides factual support for the judge’s conclusion that the defendant was Catellier’s principal target when he stopped the defendant and Ramos. But the judge also concluded that Ramos was himself a target. See Vacher, 469 Mass. at 436.

In sum, the facts here do not support the defendant’s claim of target standing.