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SJC-12699

COMMONWEALTH vs. ONAXIS BARRETO.

Suffolk. September 6, 2019. - December 23, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

Controlled Substances. Constitutional Law, Search and seizure, 

Investigatory stop, Reasonable suspicion. Search and

Seizure, Motor vehicle, Reasonable suspicion. Evidence, 

Anonymous statement, Corroborative evidence. Practice, 

Criminal, Motion to suppress.

Indictment found and returned in the Superior Court

Department on August 28, 2014.

A pretrial motion suppress evidence was heard by Kenneth W. 

Salinger, J., and a motion for reconsideration was considered by 

him.

An application for leave to prosecute an interlocutory 

appeal was allowed by Hines, J., in the Supreme Judicial Court 

for the county of Suffolk, and the appeal was reported by her to 

the Appeals Court. After review by the Appeals Court, the 

Supreme Judicial Court granted leave to obtain further appellate 

review.

Eduardo Masferrer for the defendant.

Erin D. Knight, Assistant District Attorney (Kathleen 

Celio, Assistant District Attorney, also present) for the 

Commonwealth.
2

BUDD, J. The defendant, Onaxis Barreto, was charged with 

trafficking in cocaine in violation of G. L. c. 94C, § 32E (b),

following a search of his motor vehicle. The defendant filed a 

motion to suppress the evidence found in the vehicle, contending 

that the search took place after an unlawful exit order. A 

judge in the Superior Court denied the defendant's motion 

following an evidentiary hearing, and the defendant filed an 

interlocutory appeal. The Appeals Court reversed the denial in 

Commonwealth v. Barreto, 94 Mass. App. Ct. 337 (2018). We 

granted the Commonwealth's application for further appellate 

review.

As did the Appeals Court, we conclude that based on the 

evidence presented at the suppression hearing, the exit order 

that precipitated the search of the vehicle was unjustified. We 

therefore reverse the order of the motion judge denying the 

defendant's motion to suppress.

Background. The motion judge made the following factual 

findings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 

(2015). Police received a tip from an undisclosed source that a 

green Volvo station wagon containing a "large" amount of 

narcotics would be located near a particular intersection in the 
3

Roxbury neighborhood of Boston.1 As a result, police set up 

surveillance near the intersection indicated by the tipster. 

Soon thereafter, officers observed a green Volvo station wagon 

approach the intersection, turn left without signaling, and park 

approximately fifty feet away.

The defendant, the vehicle's driver and sole occupant, 

leaned down and appeared to reach toward the floor of the 

passenger side of the vehicle. An unidentified pedestrian 

approached the vehicle from a nearby apartment building. When 

the pedestrian reached the driver's window, the two men appeared 

to speak. The pedestrian then leaned toward the vehicle and 

moved his arms "in a manner consistent with the two men 

exchanging something"; however, officers did not observe the 

hands of the two men come together. The interaction lasted 

about thirty seconds, after which the pedestrian returned to the 

apartment building. Police did not observe anything in the 

pedestrian's hands at any time during or after the interaction.

The defendant resumed driving for a short distance until 

officers signaled for him to stop. At this point, at least four 

officers and three police vehicles had arrived. When engaged by 

two of the officers, the defendant avoided making eye contact. 

 

1 As discussed in detail infra, no further information was 

provided during the hearing regarding the reliability or 

veracity of the tipster.
4

Officers observed that the defendant was breathing heavily and 

looking in his rear and side view mirrors at the officers and 

vehicles behind him.

An officer issued an exit order to the defendant. As the 

defendant got out of his vehicle, the officer saw what appeared 

to be a roll of United States currency inside a clear plastic 

bag in the storage compartment of the driver's side door. A 

subsequent patfrisk revealed no weapons or contraband. Officers 

then searched the interior of the vehicle, and a drug-sniffing 

dog alerted for narcotics on the front passenger's seat. Police 

towed the vehicle to a police station, where a search of a box 

hidden inside the front passenger's seat revealed a "large 

amount" of cocaine inside plastic bags and several large stacks 

of cash.

Discussion. Because the search of the defendant's vehicle 

was a direct result of observations police made after stopping 

his vehicle and issuing an exit order, we must examine the 

constitutionality of both the stop and the exit order. See Wong 

Sun v. United States, 371 U.S. 471, 484-488 (1963); Commonwealth

v. Tavares, 482 Mass. 694, 701-702, 706 (2019).

1. The stop. Police may effect a motor vehicle stop based 

on reasonable suspicion of criminal activity, or based on an 

observed civil infraction of the traffic laws. See, e.g.,

Commonwealth v. Buckley, 478 Mass. 861, 872 (2018); Commonwealth
5

v. Alvarado, 423 Mass. 266, 268 (1996). The Commonwealth 

maintains that the informant's tip, together with the 

observations police made of the defendant's interactions with an

unknown pedestrian, provided reasonable suspicion that the 

defendant had engaged in a drug transaction, thereby justifying 

the stop. We are not convinced by the Commonwealth's argument

on this point; however, as discussed infra, we conclude that the 

stop was authorized based on police observation of a motor 

vehicle infraction committed by the defendant.

a. The tip. Although the Commonwealth contends that the 

information provided by the tipster is properly part of the 

reasonable suspicion calculus, this was not the position the 

Commonwealth took at the motion hearing. At that time, the 

prosecutor indicated that the Commonwealth would use the tip 

only for "context" to "explain why the police were there."2

 

2 At the beginning of the hearing on the defendant's motion 

to suppress, the prosecutor stated that she would not seek to 

"establish Aguilar-Spinelli" with the unidentified source's tip. 

See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. 

Texas, 378 U.S. 108 (1964). Rather, the tip would "explain why 

the police were there," and the prosecutor indicated that she 

would object to any questions regarding the source of the tip.

Following up, the motion judge sought to confirm the 

prosecutor's position by asking whether "the Commonwealth will 

not be attempting in any way to rely" on the tip to justify the 

stop, exit order, or search. The prosecutor responded that the 

tip "provides context and stuff can be corroborated," that the 

tip "does not provide any sort of basis on its own for . . . any 

legal justification," and reiterated that she would object to 

questioning on the tip's source.
6

To be sure, it is common for the Commonwealth to withhold

details about a confidential police informant who has provided a 

tip in order to ensure that the identity of the tipster is not 

revealed inadvertently. See, e.g., Commonwealth v. Madigan, 449 

Mass. 702, 705-706 (2007). However, withholding information can 

affect the reasonable suspicion analysis depending upon the 

amount and type of information withheld. See Commonwealth v. 

Costa, 448 Mass. 510, 515 (2007); Alvarado, 423 Mass. at 274;

Commonwealth v. Lyons, 409 Mass. 16, 18-19 (1990).

Here, the Commonwealth presented no information at all 

regarding the basis of knowledge or the reliability of the 

confidential informant. In fact, the prosecutor represented 

that the Commonwealth would use the tip solely for "context," 

would object to any questions regarding the "source" of the tip, 

and would not seek to "establish Aguilar-Spinelli" with the tip.

See Costa, 448 Mass. at 515 & n.9 (articulating "AguilarSpinelli" test). For this reason, the defendant did not 

challenge the reliability of the tip,3 and the motion judge did 

 

Defense counsel indicated that he understood that the 

prosecution would use the tip "for context only," and that the 

tip would not be used "under Aguilar-Spinelli to [support] the 

stop or search." Defense counsel further agreed not to crossexamine any of the Commonwealth's witnesses on the informant's 

identity or the details of the tip.

3 Had the Commonwealth made clear that it would seek to use 

the tip to support the legality of the stop, exit order, and 
7

not consider it in analyzing the justification for the stop, 

exit order, and search. Accordingly, we similarly do not 

consider the tip in the reasonable suspicion analysis on appeal.4

b. The defendant's interaction with the unidentified 

pedestrian. The Commonwealth also points to police observations 

of the defendant interacting with an unidentified pedestrian as 

providing reasonable suspicion of criminal activity and, thus, 

justification for the stop. As mentioned supra, "[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, 391 Mass. 705, 707 (1984), and 

cases cited. However, "[the officer's] suspicion must be based 

 

search, the defendant would have been entitled to cross-examine 

the testifying officers in an attempt to assess the informant's 

basis of knowledge and reliability. See Commonwealth v. 

Bakoian, 412 Mass. 295, 308 (1992).

4 At the end of the motion hearing, the prosecutor stated 

that the tip "could be corroborated," but that "in and of 

itself, [the tip] couldn't have provided any justification." To 

the extent that these statements could be understood to mean 

that the Commonwealth intended to demonstrate the informant's 

reliability and basis of knowledge through independent police 

corroboration of the tip's details, see Commonwealth v. Lyons, 

409 Mass. 16, 19 (1990), this position would be inconsistent 

with the prosecutor's earlier representations. It also would 

have been materially unfair to use the tip to support the stop 

and search on this basis, especially because defense counsel 

relied on the prosecutor's previous representations in not 

cross-examining the Commonwealth's witnesses on the credibility 

of the tip.
8

on specific, articulable facts and reasonable inferences drawn 

therefrom. A hunch will not suffice." Id.

The motion judge found that the police made the following 

observations:

"[The defendant] had stopped his vehicle on a public 

street; a second man immediately left the nearest building 

and walked to the driver's door of [the defendant's] 

vehicle[;] as the second man approached [the defendant] 

leaned down to his right as if he were reaching toward the 

floor by the front passenger seat; [the defendant] sat back 

up and interacted for no more than thirty seconds with the 

second man, who stood immediately outside the driver's door 

of [the defendant's] vehicle; during this interaction the 

second man leaned toward the [vehicle] as if he were 

reaching into the vehicle; and after no more than [thirty] 

seconds [the defendant] drove off and the second man walked 

back into the residential building he had emerged from a 

moment earlier."

We note that, although the motion judge did not consider the 

confidential informant's tip in his analysis of the propriety of 

the stop, he nevertheless concluded that the police observations

provided reasonable suspicion that the defendant had sold 

illegal narcotics to the pedestrian. We disagree.

In this case, neither the defendant nor the pedestrian was

known to the officers conducting surveillance. In addition, the 

area in which the men met was not known for drug activity. 

Compare Commonwealth v. Stewart, 469 Mass. 257, 261 (2014) 

(reasonable suspicion for stop where defendant with prior drug 

arrest was observed huddled with others briefly at site known 

for drug use); Commonwealth v. Levy, 459 Mass. 1010, 1011-1012
9

(2011) (reasonable suspicion for stop after individual made call 

on public telephone used frequently for drug transactions and

driver arrived shortly thereafter to pick up individual,

traveled around block, and then dropped individual off).

We also note that, 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.5

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. Barreto, 94 Mass. App. Ct. at 343-344. See

Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44-45 (2005) (no 

reasonable suspicion for stop where individual in "high drug 

area" left bar, approached defendant, handed "an item" to 

defendant, and then returned to bar as defendant appeared to 

count money); Commonwealth v. Ellis, 12 Mass. App. Ct. 476, 477 

 

5 Although we have not adopted a per se rule that requires 

officers to be able to identify whether anything is exchanged in 

order to have reasonable suspicion to believe that a drug 

transaction has taken place, see Commonwealth v. Stewart, 469 

Mass. 257, 263 (2014), citing Commonwealth v. Kennedy, 426 Mass. 

703, 711 (1998), such an observation would be important in the 

reasonable suspicion analysis, see Kennedy, supra.
10

(1981) (no reasonable suspicion for stop where pedestrian passed 

what officer believed to be money through defendant's vehicle 

window and "something" was returned to pedestrian from inside 

vehicle). In short, the observations made, without more, were 

insufficient for a stop on suspicion of criminal activity.

c. The motor vehicle infraction. Although reasonable 

suspicion of criminal activity did not exist for the stop of the 

defendant's vehicle, the stop was nevertheless within the bounds 

of the law. Prior to pulling the defendant over, police 

observed the defendant make a left turn without using the 

vehicle's directional signal. As police may effect a stop after 

observing a motor vehicle infraction regardless of the officer's 

underlying motivation, the stop here was valid.6 See Buckley, 

478 Mass. at 873; G. L. c. 90, § 14B (failure to signal prior to 

turning). Having determined that the stop was lawful, we turn 

to an analysis of the exit order that followed.

2. The exit order. An exit order is not constitutionally 

justified based solely on a traffic violation. See Commonwealth

v. Amado, 474 Mass. 147, 151 (2016). Thus, to be lawful, the 

 

6 "An appellate court is free to affirm a ruling on grounds 

different from those relied on by the motion judge if the 

correct or preferred basis for affirmance is supported by the 

record and the findings." Commonwealth v. Va Meng Joe, 425 

Mass. 99, 102 (1997).
11

exit order can only be justified based on events or observations 

made by the officers after they stopped the defendant's vehicle.

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.

a. Safety concerns. In determining whether an exit order 

was justified based upon safety concerns, "we ask whether a 

reasonably prudent [person] in the [officer's] position would be 

warranted in the belief that the safety of the police or that of 

other persons was in danger" (quotation and citation omitted). 

Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999). In 

reviewing the facts, we conclude that the answer to that 

question is "no."
12

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,7 complied with 

all requests, and made no movements consistent with reaching for 

a weapon after he was stopped. Compare Commonwealth v. 

Feyenord, 445 Mass. 72, 76 (2005), cert. denied, 546 U.S. 1187 

(2006) (exit order justified where defendant failed to produce 

identification, occupants of vehicle outnumbered officer, and 

defendant was visibly nervous); Commonwealth v. Stampley, 437 

Mass. 323, 326-328 (2002) (exit order justified where occupants 

outnumbered officer and defendant in rear seat repeatedly 

reached beneath seat).

 

7 Before issuing the exit order, an officer asked the 

defendant in English to state his date of birth; the defendant 

responded with a year. When the officer asked for a full date 

of birth, the defendant stated that he did not understand 

English. In closing at the motion to suppress hearing, the 

Commonwealth argued that the fact that the defendant initially 

answered questions in English before stating that he did not 

understand English supported the officers' reasonable suspicion 

and safety concerns. We note that the defendant's behavior was 

consistent with an individual who is not fluent in English 

attempting to cooperate with the police. The fact that the 

defendant attempted but was unable to answer fully police 

questioning due to a language barrier did not, absent more, 

contribute to safety concerns or suspicion of criminal activity.
13

Although "it does not take much for a police officer to 

establish a reasonable basis to justify an exit order or search 

based on safety concerns," Gonsalves, 429 Mass. at 664, the mere 

fact that an officer observes a driver's "nervousness and 

fidgeting," without more, does not warrant a belief that the 

safety of the officers or others is threatened, id. at 668-669. 

Indeed, many would likely be nervous in response to being 

stopped and approached by multiple police vehicles and officers. 

The exit order was not justifiable on the basis that police 

reasonably believed the defendant posed a safety threat. See 

Commonwealth v. Brown, 75 Mass. App. Ct. 528, 534 (2009) 

("nervous or anxious behavior in combination with factors that 

add nothing to the equation will not support a reasonable 

suspicion that an officer's safety may be compromised"); 

Commonwealth v. Williams, 46 Mass. App. Ct. 181, 184-185 (1999) 

(exit order improper where based solely on observation that 

defendant "appeared extremely 'nervous'").

b. Reasonable suspicion of criminal activity. Just as 

police did not have reasonable suspicion of criminal conduct

prior to stopping the defendant, we similarly conclude that the 

defendant's behavior after the stop did not provide the 

requisite suspicion of unlawful activity to justify an exit 

order on that basis. See Amado, 474 Mass. at 151-152. The only 

additional information that police had after executing the stop 
14

that they did not have prior to the stop was the fact that the 

defendant appeared to be nervous and avoided eye contact while 

conversing with police. "It is common, and not necessarily 

indicative of criminality, to appear nervous during even a 

mundane encounter with police . . . ." Commonwealth v. Cruz, 

459 Mass. 459, 468 (2011). 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. See Commonwealth v. Torres, 424 Mass. 

153, 161 (1997) ("Adding up eight innocuous observations --

eight zeros -- does not produce a sum of suspicion that 

justifies . . . an order of persons out of their car . . .").

Conclusion. Because the exit order was not lawfully 

issued, the evidence obtained from the subsequent search should 

have been suppressed as fruit of the poisonous tree. Tavares, 

482 Mass. at 701-702, 706, citing Wong Sun, 371 U.S. at 486-488. 

The order denying the defendant's motion to suppress evidence 

obtained as a result of the searches of his vehicle is reversed.

The matter is remanded to the Superior Court for further 

proceedings consistent with this opinion.

So ordered.