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

23-P-696

COMMONWEALTH

vs.

KENNETH FLOHR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Kenneth Flohr, was charged in the District 

Court with possession with intent to distribute a class A 

substance and illegal possession of ammunition. The defendant 

filed a motion to suppress evidence obtained from the stop of 

the motor vehicle in which he was a passenger. Following an 

evidentiary hearing, a District Court judge determined that the 

police officers involved in the matter did not have reasonable 

suspicion to justify the stop. The Commonwealth obtained leave 

to file an interlocutory appeal. See Mass. R. Crim. P. 15 (a) 

(2), as amended, 476 Mass. 1501 (2017). We reverse. 

Background. We summarize the facts as found by the motion 

judge, supplemented with uncontested evidence from the record. 

See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). 

On February 3, 2022, Detective Robert Bruner of the Street 
2

Narcotics Enforcement Unit (SNEU) observed a truck with two 

occupants and Maine license plates traveling South on Broadway 

Street in Lawrence around 3 P.M. After running a registry 

query, he discovered that the truck's owner lived an hour and 

one-half away. The truck pulled over to the side of the road 

and remained there for approximately thirty-five minutes. Then 

the truck traveled to a Dunkin' Donuts, "[w]ent through the 

drive-thru," and parked for another twenty minutes. The truck 

then became mobile again and traveled a short distance to a side 

road, where it pulled over and parked. 

After approximately ten minutes, the defendant, who was 

unknown to the officers, got out of the passenger side of the 

truck and walked away from it. A taxicab then drove up and 

parked in front of the truck. A male subject exited the cab

(cab passenger), walked away from it, and stopped in a nearby 

residential driveway. The defendant walked back to the truck 

and stopped at the driver's side. From about 300 to 400 feet 

away, Detective Bruner watched the defendant and the driver of 

the truck appear to exchange something. 

Next, the defendant walked away from the truck. As he did 

so, he was "looking down at and manipulating his cellphone." At 

the same time, the cab passenger was "looking at and . . . 

manipulating his cellphone." The defendant and the cab 

passenger then appeared to acknowledge each other's presence, 
3

both walked toward the truck, and stopped in front of it. From 

about thirty to thirty-five feet away, Detective Jordany Vargas, 

also of the SNEU, observed the defendant and the cab passenger 

appear to exchange something. While "he could not see anything 

'physically exchanged,'" Detective Vargas testified that he 

"could see their hands touch." The defendant then got back into 

the truck and left the scene. The officers believed that they 

had observed a drug transaction, and thus initiated a motor 

vehicle stop of the truck and recovered contraband in connection 

with the stop.

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" (quotation and citation 

omitted). Jones-Pannell, 472 Mass. at 431. Although we give 

the facts found by the judge deference, we "independently 

determine whether the judge correctly applied constitutional 

principles to the facts as found." Commonwealth v. Isaiah I., 

450 Mass. 818, 821 (2008). 

In the present case, the sole question before us is 

whether, at the time of the stop, there was reasonable suspicion 

that the defendant "was committing, had committed, or was about 

to commit a crime." Commonwealth v. Chin-Clarke, 97 Mass. App. 

Ct. 604, 608 (2020), quoting Commonwealth v. Matta, 483 Mass. 
4

357, 365 (2019). In determining whether reasonable suspicion 

exists, we consider "the whole 'silent movie' disclosed to the 

eyes of an experienced narcotics investigator." Commonwealth v. 

Santaliz, 413 Mass. 238, 242 (1992). Reasonable suspicion must 

be based on "specific, articulable facts and reasonable 

inferences [drawn] therefrom" (citation omitted). Commonwealth

v. DePeiza, 449 Mass. 367, 371 (2007). "[A] combination of 

factors that are each innocent of themselves may, when taken 

together, amount to the requisite reasonable belief."1 

Commonwealth v. Phillips, 452 Mass. 617, 626 (2008), quoting 

Commonwealth v. Fraser, 410 Mass. 541, 545 (1991). 

The facts here, taken together, gave the detectives 

reasonable suspicion to believe that the defendant had engaged 

in criminal activity. Specifically, as found by the judge, 

Detectives Bruner and Vargas are experienced narcotics 

investigators. Detective Bruner had been a member of the 

Lawrence Police Department for eight years, a detective in the 

1 In allowing the defendant's motion to suppress, the judge 

stated that "[w]hat is missing is that one 'plus' factor that 

would elevate this suspicious conduct into the realm of 

reasonable suspicion." The judge cites no authority to support 

the proposition that a "plus factor" is required to find 

reasonable suspicion in this analysis. Under our precedent, we 

consider the facts in their totality, without recognizing any

single factor as determinative or dispositive, or requiring any 

"plus factor." See Commonwealth v. Ford, 100 Mass. App. Ct. 

712, 716 (2022) (stating "the basic principle that a court 

considers the totality of the circumstances when assessing 

reasonable suspicion"). 
5

SNEU for two and one-half years, and had made "hundreds of 

narcotics arrests," and while Detective Vargas had been with the 

department for six and one-half years, a detective in the SNEU 

for two years, and had been involved in "over a hundred" 

narcotics investigations and arrests. See Commonwealth v. Santa 

Maria, 97 Mass. App. Ct. 490, 494 (2020); Santaliz, 413 Mass. at

241. The truck in which the defendant was a passenger had an 

out-of-State license plate2 and had traveled to an area in which 

both detectives "had made a number of narcotics related 

arrests." See Commonwealth v. Evelyn, 485 Mass. 691, 709 (2020) 

("high crime" area factor may be considered where "high crime"

nature of area has a "direct connection with the specific 

location and activity being investigated" [citation omitted]).

Furthermore, the truck in the present case drove around a 

small geographic area for approximately an hour in a manner 

consistent with a planned meeting. See Alvarado, 93 Mass. App. 

Ct. at 471 (observation of suspiciously short drive after which 

2 The defendant argues that his "presence in Lawrence from 

Maine deserves no weight because the officers offered minimal 

concrete testimony of how frequent drug transactions stem from 

Maine visitors" and consideration of this factor would "penalize 

[the defendant] for exercising his fundamental right to travel." 

Were we to view this factor in isolation, we might agree. 

However, our case law holds that, when accompanied by other 

evidence of a drug transaction, an out-of-State vehicle in an 

area known for drug activity may be considered in the totality 

of circumstances analysis. See, e.g., Commonwealth v. Alvarado, 

93 Mass. App. Ct. 469, 471 (2018); Commonwealth v. Cabrera, 76 

Mass. App. Ct. 341, 346 (2010). 
6

one person exits car may be considered as circumstantial 

evidence in context of drug sale investigation); Commonwealth v. 

St. George, 89 Mass. App. Ct. 764, 767-768, 768 n.7 (2016) 

("short trip," while "not dispositive of criminal activity, 

standing alone" was of "suspicious nature . . . when combined 

with the other attendant circumstances present"). While the 

truck's strange driving and parking pattern alone "is not 

dispositive of criminal activity," in the totality of the 

circumstances it can be indicative of a drug transaction. Id. 

at 768 n.7. 

Most importantly, the defendant engaged in an unusual 

transaction suggestive of criminal behavior. See Santaliz, 413 

Mass. at 241 ("the unusual nature of the transaction . . . [and] 

the furtive actions of the participants" indicate that defendant 

was committing crime). Here, the defendant, after having been 

inside the parked truck for ten minutes on a side road, exited 

the passenger's side of the truck and began to walk away from 

it; a cab then parked in front of the truck; the cab passenger 

exited the cab, walked away, and stopped in a residential 

driveway; the defendant walked back to the truck, stopped at the 

driver's side, and exchanged something with the driver of the 

truck; the defendant "then walked away from the truck again and 

was looking down at and manipulating his cellphone" while, "[a]t 

the same time," the cab passenger was looking at and 
7

manipulating his cellphone; the defendant and cab passenger then 

acknowledged each other's presence, moved toward each other, 

walked toward the truck, stopped in front of it, touched hands,

and appeared to be exchanging something. The defendant then reentered the truck which left the scene. "[T]he quickness of the 

interaction . . . reasonably could be interpreted by the 

officer[s] as suspicious conduct" (citation omitted).3 Santa 

Maria, 97 Mass. App. Ct. at 495. See Alvarado, 93 Mass. App. 

Ct. at 471 (noting that "the brevity of the interaction between 

the defendant and the vehicle's driver" was, among other facts, 

a factor that "pointed to a drug transaction"). 

While it is conceivable that the defendant and cab 

passenger could have been engaging in lawful activity, the 

detectives' aforementioned observations, combined with their 

experience, training, knowledge of incidents in the area, and 

all the other factors and indicia discussed herein, provided 

more than enough specific articulable facts to satisfy the 

3 The defendant contends that his actions were not "furtive" 

because they were not done "in stealth or secrecy," as they 

occurred during the day and the officers were able to observe 

all his movements. See Commonwealth v. Torres-Pagan, 484 Mass. 

34, 39-40 (2020). This contention is unavailing. When 

considered with the other evidence of suspicious behavior here, 

the brevity and hurried nature of the exchange suggests that the 

transaction was intended to be done in stealth. Furthermore, 

the defendant cites no authority indicating that an action 

cannot be "furtive" if it is conducted during the day or in the 

presence of others. 
8

reasonable suspicion standard. See Terry v. Ohio, 392 U.S. 1, 

22 (1968) (threshold inquiry proper where "a series of acts, 

each of them perhaps innocent in itself, but which taken 

together warranted further investigation").4 Accordingly, the 

motor vehicle stop was constitutionally permissible. 

Order allowing motion to 

suppress reversed.

By the Court (Neyman, 

Hershfang & Hodgens, JJ.5),

Clerk

Entered: July 31, 2024.

4 We are not persuaded by the defendant's contention that 

the absence of testimony that the detectives observed an actual 

object being exchanged "detracts from any conclusion that a drug 

transaction occurred." See Santa Maria, 97 Mass. App. Ct. at 

494 ("given the easily-concealed nature of small packages of 

drugs, an officer need not actually see an object exchanged in 

order to have probable cause," or in the same vein, reasonable 

suspicion); Commonwealth v. Sanders, 90 Mass. App. Ct. 660, 667 

(2016) ("there are a myriad of factual scenarios in which such 

an inference [of a drug transaction] is reasonable despite the 

absence of any direct observation of an exchange").

5 The panelists are listed in order of seniority.