NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-920

COMMONWEALTH

vs.

JASON M. DENISON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a District Court 

judge allowing the defendant's motion to suppress evidence 

seized pursuant to a warrantless arrest. We affirm. 

Background.1 On May 4, 2020, Sergeant Andrew Simmons of the 

New Bedford Police narcotics unit was parked on a public street 

conducting an investigation in the south end of New Bedford. 

While parked, he noticed three cars circle the block three times

-– a black Lexus followed by a grey Mazda and then a white 

Mazda. Simmons followed as the three cars turned down a side 

1 "We reprise the motion judge's findings of fact, 

supplemented, in part, by uncontroverted testimony at the 

hearing on the motion to suppress." Commonwealth v. Agogo, 481 

Mass. 633, 633-634 (2019).
2

street. Simmons saw the following.2 A Black male, later 

identified as the defendant, exited the driver's side of the 

black Lexus and approached the driver of the white Mazda and had 

a conversation at the window. Simmons testified, "It appeared 

that there was an exchange either retrieving something or 

handing something in." Simmons could not see what it was. The 

defendant then walked to the grey Mazda and raised one finger, 

as if signaling to the operator of the grey Mazda to "hold on," 

and returned to the Lexus. Back at the Lexus, the defendant 

opened the trunk and reached into a large plastic bag. He 

removed something from a large plastic bag on the right side of 

the trunk and placed it into a bag in front of him. He then 

twisted something. He put the item in the front pocket of his 

sweatshirt, and closed the trunk. As the defendant walked back 

toward the white Mazda, there appeared to be a bulge in his 

sweatshirt. He got into the white Mazda, which drove off. 

Simmons followed.

After traveling about one block, the white Mazda stopped,

let the defendant out, and drove away. Simmons, believing he 

had just witnessed a drug transaction, radioed to other officers 

to stop the defendant and the white Mazda. Police found "some" 

2 Simmons testified that he was approximately one hundred 

feet from the Lexus and thirty feet from the last of the three 

cars at the time of the observations.
3

marijuana in the white Mazda; the operator denied that it came 

from the defendant and said that the defendant was a "relative 

or something." The location of the marijuana in the car and a 

description of the packaging are not in the record. The 

defendant, who was walking in the direction of the Lexus, was 

stopped by other officers not far from where he exited the 

Mazda. Meanwhile, detectives stopped the defendant, secured him 

in handcuffs, and read him his Miranda rights.

The motion judge granted the defendant's motion to suppress

evidence seized from the defendant and the Lexus and statements 

the defendant made after he was arrested. The motion judge

credited Simmons's testimony and found him to be an experienced 

narcotics officer but concluded that his observations and 

reasonable inferences "therefrom do not arise to the level of 

reasonable suspicion."

Discussion. In reviewing an order on a motion to suppress, 

"we adopt the motion judge's subsidiary findings of fact absent 

clear error, but we independently determine the correctness of 

the judge's application of constitutional principles to the 

facts as found" (citation omitted). Commonwealth v. Buckley, 

478 Mass. 861, 864 (2018). We may affirm the allowance of a 

motion to suppress on any ground supported by the record. 

Commonwealth v. Pridgett, 481 Mass. 437, 438 n.2 (2019). 
4

Here, the Commonwealth correctly concedes that the 

defendant was arrested when he was stopped by the police, placed 

in handcuffs, and read his Miranda rights.3 Commonwealth v. 

Grandison, 433 Mass. 135, 145 (2001), quoting Commonwealth v. 

Cook, 419 Mass. 192, 198 (1994) ("An arrest occurs where there 

is [1] 'an actual or constructive seizure or detention of the 

person, [2] performed with the intention to effect an arrest and 

[3] so understood by the person detained'"). A warrantless 

arrest must be supported by probable cause. See Commonwealth v. 

Frazier, 410 Mass. 235, 241 (1991) (arrest unlawful where no 

probable cause to believe defendant was committing a crime). 

"[P]robable cause exists where, at the moment of arrest, the 

facts and circumstances within the knowledge of the police are 

enough to warrant a prudent person in believing that the 

individual arrested has committed or was committing an offense" 

(citation omitted). Commonwealth v. Santaliz, 413 Mass. 238, 

241 (1992). "Probable cause may be established where the 

'silent movie' observed by an experienced narcotics investigator 

reveals 'a sequence of activity consistent with a drug sale at a 

3 We assume, without deciding, that the officers had 

reasonable suspicion to stop the defendant. See Commonwealth v. 

Paris, 97 Mass. App. Ct. 785, 788 (2020) ("An investigatory stop 

[is] justified if the Commonwealth proved that the police had a 

reasonable suspicion, based on specific, articulable facts and 

reasonable inferences therefrom, that [the defendant] had 

committed, was committing, or was about to commit a crime" 

[quotation and citation omitted]).
5

place notorious for illicit activity in narcotics.'" 

Commonwealth v. Stewart, 469 Mass. 257, 262 (2014), quoting 

Santaliz, supra at 242. Probable cause did not exist here.

In Stewart, 469 Mass. at 259, the Supreme Judicial Court 

held that officers did not have probable cause to arrest a 

defendant where they observed the following: a man that one of 

the officers had previously arrested for the distribution of 

"crack" cocaine was walking down the street followed by two men 

and one woman; the woman was counting currency. The group 

turned down an alley known for drug use, huddled together in a 

doorway briefly, exchanged something, and separated. Id. When 

officers approached Stewart, he lied about where he had just 

been. Id. Similarly, in Commonwealth v. Clark, 65 Mass. App. 

Ct. 39, 41-44 (2005), we held that there was neither reasonable 

suspicion to support a stop nor probable cause to support an 

arrest where an officer conducting surveillance in a high crime, 

high drug area witnessed an unknown male standing outside a bar 

exchange an item for money with a man known to the officer as a

bartender at a different establishment. In Commonwealth v. 

Levy, 459 Mass. 1010, 1011-1012 (2011), officers did not have 

probable cause to search a Pontiac automobile, where they 

observed a man in a Ford automobile exit the vehicle, make a 

call at a public phone, enter a Pontiac automobile minutes 
6

later, ride in the Pontiac for approximately 200 yards, then 

exit and return to the Ford.

The facts of this case fall below the level of suspicion 

present in either Stewart or Clark. Here, the defendant and the 

driver were both unknown to the police. There was no testimony 

that the conduct occurred in a neighborhood known for illegal 

activity of any kind. A brief car ride, without more, does not 

establish probable cause. Whatever was transferred was small 

enough to be held in a hand and unseen by an experienced 

detective. Nor does the manipulation of plastic bags in a trunk 

tip the scales in favor of establishing probable cause, 

especially where small amounts of marijuana, which is often 

packaged in small plastic bags, may be gifted legally in 

Massachusetts. G. L. c. 94G, § 7 (a) (1), (4) (prohibits 

prosecution or punishment for transfer of less than one ounce of 

marijuana to person over age of twenty-one, as long as transfer 

was not for remuneration and was not advertised to public). See 

Commonwealth v. Long, 482 Mass. 804, 811 (2019) ("[a]s a result 

of these changes to the Commonwealth's marijuana laws, to obtain 

a search warrant for an offense involving marijuana, the police 

are required to establish that they are investigating illegal 

marijuana possession or illegal marijuana cultivation, not 
7

merely the possession, consumption, or cultivation of 

marijuana").

Order allowing motion to 

suppress affirmed.

By the Court (Green, C.J., 

Blake & Henry, JJ.4),

Clerk

Entered: August 21, 2024.

4 The panelists are listed in order of seniority.