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, theref ore, 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

- 1219
COMMONWEALTH

vs . SIFED D INE ROGADI . MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The d efendant, Sife d d ine Rogadi, was indicted for murder, possession of a large capacity firearm, and possession of ammunition without a firearms identification card
. Following an evidentiary hearing, a Superior Court judge allowed the defendant's motion to suppress the seizure of a car , and the firearm found therein, but denied it as to statements made by the defendant
. After its motion for reconsideration was denied , t he Commonwealth filed an application for leave to pursue an interlocutory appeal with the s ingle j ustice of the Supreme Judicial Court. The s ingle j ustice ordered the Commonwealth to supplement its application with a statement as to the viability of its case without the suppressed evidence. The Commonwealth filed a response, and t he s ingle j ustice allow ed the2

Commonwealth's application and order ed that the interlocutory appeal proceed in this c ourt. We affirm. 1. Background
. We recite the facts as set forth in the judge's memorandum and order
. On December 29, 2020, Jaden Brito

- White was shot and killed in the area of 10 Bowdoin Street in Malden by two people, who m a witness described as wearing dark clothing
. The police did not know the race or gender of the shooters, nor did they have any o ther specific information other than that the shooters wore dark clothing. I nvestigators collected video recordings (video) from the area in an effort to identify the car that the shooters drove to and from the scene. In addition to video from the immediate area where the victim was killed, investigators collected video that showed a car (suspect car) that investigator s believed was involved in the shooting
. Video show ed that the suspect car drove into a parking lot next to 10 Bowdoin Street , exited the parking lot, and drove onto an inters ecting street. Over the next several days, investigators collect ed additional video s . Based on their review, investigators determined that the suspect car was a "maroon

- purple color," specifically "black cherry metallic ," a color found on only two3

specific Chevrolet models, the Malibu and the Impala
. 1 On January 5, 2021, investigators drafted a public bulletin for distribution to other police departments. The bulletin described the suspect car as "a newer model Chevrolet I mpala or Malibu with a 'black cherry metallic color'
. . . [ and ] no front registration plate." That same day, two investigators were in the field collecting additional videos when they saw a "Chevy Malibu, with no front plate and the distinct fog lights, coming up Gledh ill .
. . on the night of the shooting." Investigators followed the car as it sped through residential neighborhoods , and instructed Malden police to pull it over . P olice officer s pulled over the car , told the driver, later identified as the defendant, that t he y pulled him over for speeding , and asked him to get out of the car
. Investigators noticed that the car had a white transponder box on the windshield and a moon roof, similar to what they observe d in a video of the suspect car. Upon questioning, the defendant told police that his mother rented the car on December 27, 2020, and that only he and his mother used it
. After police wrote a speeding citation, they told the defendant that they were seiz ing the car because t he y "believe[d] [the] vehicle was

1 In a video, a n inves tigator noticed a "Chevrolet emblem" on the car's grill which allowed them to narrow down the manufacturer of the car .4

involved in a very serious incident that happened several days prior. " T he defendant left on foot , the car was seized, and a warrant was later issued to search it
. A semiautomatic firearm

was found i n the car . 2. Discussion
. "In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law" (quotations omitted). Commonwealth v. Jones

- Pannell , 472 Ma ss. 429, 431 (2015). Here, d espite what he described as an exhaustive investigation , the judge conclude d that the police lacked probable cause to seize the car. He did not credit the investigators' testimony about the information they had about the suspe ct car at the time that they stopped the defendant. Specifically, t he judge found that the "distinctions between the draft bulletin and the later testimony during the hearing are difficult to reconcile and certainly create doubt about [whether] the car se en in the vide o was the one seized." The Commonwealth contends this finding was in error . We are not persuaded as "[t] he determination of the weight and credibility of the [ evidence ] is the function and responsibility of the judge who saw and heard the w itnesses, and not of this court ." Commonwealth v. Gonzalez , 487 Mass. 661, 668 (2021) , quoting Commonwealth v. Neves , 474 Mass. 355, 36 0 (2016).5

In determining whether the police have probable cause to conduct a warrantless seizure, " we ask whether 'the information possessed by police, at the time of the proposed warrantless search, provide[d] a substantial basis for the belief that there [was] a timely nexus or connection between criminal activity, a particular person or place to be searched , and particular evidence to be seized.'" Commonwealth v. Dame , 473 Mass. 524, 537 , cert. denied, 580 U.S. 857 (2016) , quoting Commonwealth v. Cataldo , 69 Mass. App. Ct. 465, 470 (2007). In the context of vehicle seizures, probable cause exists "where fa cts indicated that there was a connection between the crime and the vehicle." Dame , 473 Mass. at 537 . See Commonwealth v. Brown , 367 Mass. 24, 33 (1975) (probable cause existed for warrantless search of car as eyewitness described suspects by name , and identified car as yellow Toyota station wagon with roof rack, dented side and loose front license plate). See also Commonwealth v. Gentile , 437 Mass. 569, 573

- 5 74 (2002) (probable cause existed for warrantless s earch of car when it was last known location of victim, and evidence of victim's disappearance might be contained therein ). These cases are notable because the police had unique identifying factor s tying the car or its occupants to the crime. By contrast , here the police had a basic description of the suspect s ' clothing and a broad description of the type of car ( a newer model Chevrolet6

Malibu or Impala), its color (black cherry metallic), and the lack of a front license plate. More was needed as " p robable cause must be based on particularized facts, not 'simply general conclusions.'" Commonwealth v. Perry , 489 Mass. 436, 458 (2022) , qu oting Commonwealth v. Rosetti , 349 Mass. 626, 632 (1965). When the car was seized , investigators did not have particulari zed facts to connect it to the shooting
. Because t he police did not have "a timely nexus or connection between criminal activity" and the car seized by investigators , Dame , 473 Mass. at 537 (quotation omitted) , the evidence derived from the seizure was also properly suppressed
. See Commonwealth v. Fredericq , 482 Mass. 70, 78 (2019 )
. Order allowing in part motion to suppress affirmed
. Order denying motion for reconsideration affirmed
. By the Court (Blake, Massing & Hand, JJ. 2 ),

Clerk

Entered: November 17 , 2023.

2 The panelists are listed in order of seniority.