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Massachusetts Supreme Judicial Court: When Exit Order is Unlawful, Evidence Obtained from Subsequent Search Must be Suppressed

by Douglas Ankney

The Supreme Judicial Court of Massachusetts ruled that when officers unlawfully issue an order commanding a suspect to exit a vehicle, any evidence obtained from the subsequent search should be suppressed.

Boston police received information from an unidentified informant that a green Volvo station wagon containing a “large” amount of cocaine would be located at a particular intersection.

While police surveilled the area, Onaxis Barreto approached the intersection in a green Volvo station wagon and turned left without using his turn signal. Barreto parked and appeared to reach toward the floor of the vehicle. An unidentified pedestrian approached the Volvo from a nearby apartment building. The two men appeared to speak. The pedestrian then leaned toward the vehicle, moving his arms “in a manner consistent with the two men exchanging something.”

However, the officers did not observe the men’s hands coming together, nor did they observe anything in the pedestrian’s hands when he returned to the apartment building about 30 seconds later.

Barreto resumed driving, and officers signaled for him to stop. At this point three police vehicles arrived, and Barreto appeared nervous, avoiding eye contact. An officer issued an exit order to Barreto. As he got out of the Volvo, the officer saw a roll of U.S. currency inside a clear plastic bag in the driver’s side door’s storage compartment. A pat-frisk of Barreto revealed no weapons or contraband. But a “large amount” of cocaine was discovered inside the vehicle after a drug-sniffing dog alerted for narcotics on the front passenger’s seat.

Barreto was charged with trafficking in cocaine, and he filed a motion to suppress on the grounds that the search occurred after an unlawful exit order. At the suppression hearing, the Commonwealth didn’t seek to establish the reliability of the informant. The prosecutor was explicit in that the informant’s tip would be used only to provide context for the police surveillance, but the tip would not be used to provide probable cause or reasonable suspicion for the search. The Superior Court found that the officers had reasonable suspicion to suspect criminal activity based on their observations of Barreto’s interactions with the pedestrian, and this provided justification for the ensuing exit order.

The Superior Court denied the motion to suppress, and Barreto appealed. The Appeals Court reversed the denial, and the Massachusetts Supreme Judicial Court granted the Commonwealth’s application for further appellate review.

The Court rejected the Superior Court’s finding that officers had reasonable suspicion based on their observations of Barreto’s interactions with the pedestrian. The Court observed that “[a] police officer may stop a vehicle in order to conduct a threshold inquiry if [the officer] has a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime.” Commonwealth v. Wren, 463 N.E.2d (Mass. 1984). However, the suspicion cannot be a mere hunch but must be based on inferences drawn from specific, articulable facts. Id.

In the instant case, the officers neither observed anything exchange hands, nor did they observe anything in the pedestrian’s hands when he walked away. Neither Barreto nor the pedestrian were known to police, and the interactions did not occur in a high-crime area or in an area known for drug activity—circumstances that would have perhaps given rise to reasonable suspicion. Commonwealth v. Stewart, 13 N.E.3d 981 (Mass. 2014).

While the Court found that the officers did not have reasonable suspicion based on suspected criminal activity, the officers did have lawful authority to stop the vehicle based on Barreto’s traffic infraction of failing to use his turn signal. However, “[a]n exit order is not constitutionally justified based solely on a traffic violation.” Commonwealth v. Amado, 48 N.E.3d 414 (Mass. 2016). In such instances, police may issue an exit order if “(1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have a reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds.” Id.

Neither Barreto’s nervousness nor anything else in the record indicated any of those factors applied. The Court concluded that ​
“[b]ecause the exit order was not lawfully issued, the evidence obtained from the subsequent search should have been suppressed as fruit of the poisonous tree.” Commonwealth v. Tavares, 126 N.E.3d 981 (Mass. 2019).

Accordingly, the Court reversed the order denying Barreto’s motion to suppress and remanded the matter to the Superior Court for further proceedings consistent with the Court’s opinion. See: Commonwealth v. Barreto, 483 Mass. 716 (2019). 

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Related legal case

Commonwealth v. Barreto



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