NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

17-P-1045 Appeals Court

COMMONWEALTH vs. ONAXIS BARRETO.

No. 17-P-1045.

Suffolk. May 11, 2018. - October 29, 2018.

Present: Milkey, Hanlon, & Singh, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress. 

Constitutional Law, Search and seizure, Investigatory stop, 

Reasonable suspicion. Search and Seizure, Motor vehicle, 

Reasonable suspicion. Evidence, Anonymous statement, 

Corroborative evidence.

Indictment found and returned in the Superior Court 

Department on August 28, 2014. 

A pretrial motion to 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 Geraldine S. Hines, J., in the Supreme 

Judicial Court for the county of Suffolk, and the appeal was 

reported by her to the Appeals Court.

Eduardo Masferrer for the defendant.

Kathleen Celio, Assistant District Attorney, for the 

Commonwealth.
2

MILKEY, J. In August, 2014, a grand jury indicted the 

defendant for trafficking in 200 grams or more of cocaine. 

G. L. c. 94C, § 32E (b) (4). The charge was based on evidence 

found during a warrantless search of the defendant's motor 

vehicle. Following an evidentiary hearing, a Superior Court 

judge denied the defendant's motion to suppress that evidence.1 

On the defendant's interlocutory appeal, we reverse. 

Standard of review. "When reviewing a decision on a motion 

to suppress, we accept the judge's findings of fact absent clear 

error, but make an independent determination whether the judge 

correctly applied constitutional principles to the facts as 

found." Commonwealth v. Evans, 87 Mass. App. Ct. 687, 688 

(2015). The judge made careful, detailed findings, all of which 

are supported by the record and therefore are binding on us. 

Notably, the judge rejected some of the police witnesses' claims 

about what they were able to observe from a distance, and the 

specific factual claims that the judge did credit were 

qualified. The factual recitation that follows is drawn from 

the judge's findings.2

 

1 The defendant filed a motion to reconsider that ruling, 

which also was denied. 

2 In reciting an interchange between the judge and counsel 

at the motion hearing, we of necessity rely on the transcript of 

that hearing.
3

Background. 1. The tip provided to police. The Boston 

police focused on the defendant's vehicle because of a tip they 

had received from an undisclosed source. Specifically, on or 

before June 9, 2014, the police received information that a 

green Volvo station wagon containing a "large" amount of drugs

would be near a certain intersection in the Roxbury section of 

Boston. No other information regarding the tip was provided at 

the evidentiary hearing.3 Thus, for example, there was no 

evidence that the tipster provided the license plate number of 

the vehicle, what time it would arrive, or any information 

whatsoever about the vehicle's occupants, if any. Similarly, 

there was no evidence about who the tipster was, how he or she 

purportedly came into possession of the alleged information, how 

that information was passed along to police, or whether the 

police had any reason to trust it. 

It was not happenstance that so little evidence was 

presented about the tip, and none about the tipster. At the 

beginning of the evidentiary hearing, the prosecutor made it 

clear that she did not intend to go into such issues because she 

 

3 The record does not contain any recording of the tip, or 

other memorialization of what words the informant used to convey 

his or her thoughts. Instead, one of the testifying officers 

simply stated that the police had "received information from a 

source that a green Volvo station wagon that had a large amount 

of narcotics was in [the] area of [three streets in Roxbury]."
4

did not want to risk identifying the informant.4 Thus, in an 

effort to head off any inquiry into the tip, the prosecutor 

expressly disavowed trying to establish the tip's reliability 

pursuant to applicable case law, and she made it clear that she 

would be "objecting to any sort of [cross-examination] questions 

regarding the . . . source of that information that the police 

had." Defense counsel responded that he was content with this 

arrangement based on his understanding of how the informant's 

alleged information would be treated. Specifically, he stated 

as follows: "It's a statement for context only that's not being 

used because it doesn't satisfy [the standard set forth in 

Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United 

States, 393 U.S. 410 (1969)]. For those purposes, I've agreed 

to not go into the -- who the source is, how is it that it came 

about, what were the exact details of the tip because we're 

[sic] not using it under Aguilar-Spinelli to suppor[t] the stop 

or search." The judge responded by stating, "Okay. Fair 

enough." The prosecutor made no effort to disabuse defense 

counsel of his understanding.

2. Police observations. Upon receiving the tip, four 

police officers set up surveillance at the intersection

 

4 At one point, the prosecutor -- when pressed by the judge 

on whether she would be "attempting in any way to rely upon 

information from th[e] confidential source" -- hedged slightly 

by stating her view that "stuff can be corroborated." 
5

mentioned by the informant. At about 5:15 P.M. on June 9, 2014,

they saw a green Volvo station wagon turn at the intersection 

without the driver using his turn signal. The vehicle then 

parked approximately fifty feet away. Shortly thereafter, one 

of the officers observed the vehicle's operator, subsequently 

identified as the defendant, lean down toward his right side "as 

if he [were] reaching toward the floor of the passenger side 

with both hands." According to the judge's findings, the 

officer could not see the defendant's hands or what the 

defendant might have been doing with them. Observing from a 

distance, the officers saw a man approach the parked vehicle 

from an adjacent building and interact with the defendant at the 

driver's side window for approximately half a minute. While the 

judge found that the police observed the unidentified man who

had approached the defendant's vehicle lean toward it "in a 

manner consistent with that man placing his hands on the Volvo 

door or reaching inside the Volvo," he also found that the 

police did not observe the defendant and the unidentified man

actually "reach their hands toward each other, bring their hands 

together, or exchange any object." Furthermore, the judge found 

that the police did not see anything in the pedestrian's hands 

as he was walking away from the vehicle, nor did they see him 

put anything into his pocket, or move his arm in a manner 

suggesting that he had just put anything there. Despite the 
6

absence of any observation of an item being exchanged between 

the men, the judge found that their interaction was "consistent 

with the two men exchanging something." 

After the man walked away, the defendant drove his vehicle 

to an adjacent street, where the police pulled his vehicle over. 

Although the defendant appeared nervous, he produced his 

driver's license and vehicle registration when requested to do 

so. At this point, there were at least four officers at the 

scene, and one of them ordered the defendant out of the vehicle. 

As the defendant was stepping out of the vehicle, the officer 

saw a roll of cash in a clear plastic bag on the inside of the 

driver's door. After further questioning of the defendant 

proved fruitless5 and a patfrisk of him revealed nothing, the 

police initiated a thorough search of the vehicle, subsequently 

aided by a drug-sniffing dog. They eventually uncovered a metal 

box underneath the passenger seat, inside of which was a large 

amount of cocaine and additional cash. 

The defendant moved to suppress all the evidence the police 

collected pursuant to the stop and search of his vehicle, 

including the cocaine, its packaging, the money (which totaled

$11,050), the defendant's cellular telephones, and a magnet that 

 

5 The police questioned the defendant in English. Although 

the defendant supplied his license and registration, he told the

police that he did not speak English and therefore did not 

understand their further inquiries. 
7

police believed was used to access a "hide" inside the vehicle. 

The judge ruled in the Commonwealth's favor. In doing so, he 

did not rely on the informant's tip in any fashion. In fact, 

with regard to that tip, the judge found that "[t]he 

Commonwealth did not present any evidence to demonstrate the 

basis for the informant's knowledge, that the police had any 

reason to believe that the informant was truthful, or that the 

police had corroborated the source's information that the 

[defendant's vehicle] would contain illegal drugs." Instead, 

the judge concluded that the police had reasonable suspicion to 

stop the vehicle and to order the defendant out of it based on 

the brief interaction that the police had observed between the 

defendant and the unidentified man who had approached his 

vehicle. Then, according to the judge, once the police observed 

the wad of bills in the driver's door while the exit order was 

being executed, they gained probable cause that justified their

subsequent search of the vehicle. 

Discussion. 1. Introduction. The dispute before us is 

relatively narrow. It is uncontested that the police found the 

cocaine and other incriminating evidence during an investigatory 

search of the defendant's vehicle. It follows that this search 

was valid only if the Commonwealth at that point had probable 

cause to conduct the search. Commonwealth v. Eggleston, 453 
8

Mass. 554, 557 (2009).6 Moreover, the Commonwealth acknowledges 

that its claim that it had probable cause depends on the police 

having observed the roll of bills in the door of the vehicle

while they were executing the exit order. Therefore, if the 

exit order was not valid, the Commonwealth's claim that it had 

probable cause to search the vehicle falls short.

While the police could have stopped the vehicle for the 

civil traffic violation they observed,7 this would not have 

justified the exit order that led to the discovery of the roll 

of bills.8 Rather, in the particular circumstances of this case, 

the validity of the exit order -- and hence the Commonwealth's 

claim that it obtained probable cause once it found the wad of 

 

6 Because of the so-called "automobile exception," a warrant 

was not required so long as the police had probable cause. See 

Commonwealth v. Eggleston, 453 Mass. at 557, quoting 

Commonwealth v. Cast, 407 Mass. 891, 901 (1990) ("[A] warrant is 

not required to search an automobile 'when police have probable 

cause to believe that a motor vehicle on a public way contains 

contraband or evidence of a crime, and exigent circumstances 

make obtaining a warrant impracticable'").

7 The fact that the traffic violation was not the actual 

reason the police stopped the defendant's vehicle would not 

matter. See Commonwealth v. Buckley, 478 Mass. 861, 872-873 

(2018). For purposes of our review, we have assumed that the 

length of time between the observed traffic violation and the 

stop was short enough that the initial stop could be justified 

on this basis.

8 The defendant cooperated with the police after the stop, 

and the Commonwealth makes no claim that the exit order 

independently was justified for safety reasons. See 

Commonwealth v. Gonsalves, 429 Mass. 658, 665 n.5, 666-668 

(1999). 
9

bills -- depends on the police having gained reasonable 

suspicion that the defendant was engaged in illegal drug 

activity. See Commonwealth v. Bostock, 450 Mass. 616, 621-622 

(2008) (exit order justified when police have reasonable 

suspicion that operator engaged in criminal activity). The key 

question, then, is whether, by the time the police ordered the 

defendant out of his vehicle, they had "reasonable suspicion, 

based on specific, articulable facts and reasonable inferences 

therefrom, that an occupant of the . . . motor vehicle had 

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

Commonwealth v. Anderson, 461 Mass. 616, 621, cert. denied, 568 

U.S. 946 (2012), quoting Commonwealth v. Alvarado, 423 Mass.

266, 268 (1996). We turn to that question and begin by 

examining the grounds on which the judge relied. 

2. Reasonable suspicion. a. Police observations. The 

motion judge found, without referring to the tip, that the 

police had reasonable suspicion to believe the defendant was 

selling illegal drugs based on the defendant's brief interaction 

with the unidentified pedestrian (after the defendant stopped 

his vehicle on a public street and reached toward the floor of 

the vehicle). We disagree. 

As noted, the police did not observe any item being 

exchanged between the defendant and the person who approached 

and leaned toward his vehicle. As the Commonwealth highlights,
10

testimony of an observed hand-to-hand exchange in some 

circumstances can establish the requisite degree of suspicion 

that an illegal narcotics sale has occurred even where the 

police do not "actually see an object exchanged." Commonwealth

v. Kennedy, 426 Mass. 703, 710 (1998).9 However, in those 

narcotics sale cases in which reasonable suspicion has been 

found in the absence of police observing an item being 

exchanged, there were significantly more suspicious 

circumstances than those encountered here. For example, in 

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

found reasonable suspicion for police to stop the defendant 

where -- knowing that he previously had been arrested for drug 

dealing -- they observed that "three persons followed [him] down 

a narrow street often used by drug users, with [a] woman

counting currency as she walked, and then all four huddled 

briefly together in a doorway, before they dispersed." See 

Commonwealth v. Gomes, 453 Mass. 506, 511-512 (2009); 

Commonwealth v. Moses, 408 Mass. 136, 140 (1990).10

 

9 Kennedy involved probable cause. Ipso facto, there is no 

per se rule requiring that police see an object exchanged in 

cases where, as here, the less rigorous standard of reasonable 

suspicion applies.

10 In Commonwealth v. Gomes, the court held that the police 

officer had reasonable suspicion to stop the defendant in a high 

crime area at around 4 A.M., where the defendant was known to 

previously have been arrested on drug charges and was observed 

"displaying items in his hand[, which the officers could not 
11

Here, as a police witness acknowledged, neither the 

defendant nor the putative buyer was known to the police.11 

Furthermore, the judge found that the police had no reason, 

based on past experience, to expect a drug transaction to occur 

in this particular area, which was made up of "relatively quiet 

residential streets."12 All the police observed was an unknown 

 

see,] and then appearing to swallow those items as the [police]

approached." 453 Mass. at 511. In Commonwealth v. Moses, the 

court held that the police officer "had reason to suspect that a 

drug transaction was taking place" where he saw four individuals 

who were "standing near an automobile parked next to the 

sidewalk with its motor running [and] appeared to be interacting 

in some way with three . . . men who sat in the automobile[, and 

then, o]n making eye contact with [the officer,] all four [men 

on the sidewalk] quickly dispersed in two different directions[, 

and] [o]ne of the occupants of the automobile, on making eye 

contact with [the officer], immediately ducked under the 

dashboard, completely out of [the officer's]'s sight." 408 

Mass. at 140.

11 In its appellate brief, the Commonwealth repeatedly 

refers to the person who approached the vehicle as "Hispanic," 

even though his ethnicity has no relevance here. We point this 

out only to alert the parties to the issue of implicit bias, 

from which no one is immune. See Commonwealth v. Buckley, 478 

Mass. at 878 n.4 (Budd, J., concurring) (discussing implicit 

bias). We acknowledge that in their testimony, the witnesses 

described the pedestrian they had observed as Hispanic, and that 

the Commonwealth's appellate counsel apparently borrowed such 

references in their brief. It is not difficult, however, to 

avoid unnecessary references that may implicate such bias

whether it be present or not. The motion judge did so in this 

case. Relying on the same testimony as appellate counsel, the 

judge referred to the unknown parties by their roles (the 

pedestrian and the driver) and thereby focused his analysis on 

the relevant facts, the conduct of the individuals.

12 Our dissenting colleague highlights that the judge 

credited the testimony of a police witness that over a ten-year 

period, "he ha[d] made numerous arrests for possession or 
12

driver stop his vehicle in a residential neighborhood, lean down 

toward the passenger-side floor, and subsequently have a brief 

interaction with an unknown pedestrian during which the 

pedestrian leaned toward the vehicle (as if to place his hands 

on or in it). As far as it goes, the judge's finding that what 

the police saw was "consistent with" a hand-to-hand exchange of 

illegal drugs is unassailable. However, the defendant's 

observed actions would also be "consistent with" a broad range 

of other interactions. These would include, as mere examples, 

the driver's saying a quick hello to an acquaintance he passed 

on the street, the driver's asking for directions after looking 

for a map, or the driver's stopping to drop off tickets to a 

sporting event or another item to a friend he had arranged to 

meet. Even if there were sufficient evidence to establish 

reasonable suspicion that an exchange had taken place, there was

not enough to establish that the exchange was of illegal drugs. 

 

distribution of illegal narcotics in [that] general 

neighborhood." Post at . In our view, such general background 

information added little, if anything, to the reasonable 

suspicion calculus. See Commonwealth v. Johnson, 454 Mass. 159, 

163 (2009) (urging that judges consider presence in a high crime 

area "with caution" given "that so-called high crime areas are 

inhabited and frequented by many law-abiding citizens who are 

entitled to be protected against being stopped and frisked just 

because of the neighborhood where they live, work, or visit"). 

"The term 'high crime area' is itself a general and conclusory 

term that should not be used to justify a stop or a frisk, or 

both, without requiring the articulation of specific facts 

demonstrating the reasonableness of the intrusion." Ibid.
13

Put otherwise, if the looming presence of the unsubstantiated 

tip is truly disregarded, then the specific actions that the 

police observed -- even when seen through the eyes of 

experienced officers -- created at most a "hunch" that a drug 

transaction had just occurred. As the Supreme Judicial Court 

has long held, a "mere 'hunch' is not enough" to establish 

reasonable suspicion. Commonwealth v. Silva, 366 Mass. 402, 406

(1974).13 

The Commonwealth seeks to justify the stop by having us add 

to the mix the undisclosed informant's tip about a green Volvo 

station wagon containing drugs.14 Although the judge himself 

placed no reliance on the tip, it is plain from one of the 

arresting officer's testimony that, unsurprisingly, such 

information played a major part in leading him "to believe that 

a possible drug transaction [had] occurred." Because we can 

 

13 To be sure, as our dissenting colleague accurately points 

out, the police observed the defendant exhibit nervous behavior 

once they pulled over his vehicle. However, the fact that 

someone became anxious after being stopped by at least four 

armed police officers has negligible force (particularly to the 

extent that the defendant did not speak English, a factual issue 

the judge did not resolve). See Commonwealth v. Cruz, 459 Mass. 

459, 468 (2011) ("It is common, and not necessarily indicative 

of criminality, to appear nervous during even a mundane 

encounter with police").

14 The defendant has not argued that the statements the 

prosecutor made at the evidentiary hearing should estop the 

Commonwealth from trying to rely on the tip on appeal. We 

assume arguendo that the Commonwealth's arguments based on the 

tip are properly before us. 
14

affirm the denial of the motion to suppress on any ground fairly 

supported by the record, see Commonwealth v. Va Meng Joe, 425 

Mass. 99, 102 (1997), we must evaluate whether considering the 

tip here makes a difference.

b. The import of the tip. The Supreme Judicial Court has 

made it clear that the Commonwealth cannot rely on an 

informant's tip unless the reliability of that tip has been 

demonstrated pursuant to the two-pronged Aguilar-Spinelli test

(in which courts are to assess the extent to which the 

informant's veracity and basis of knowledge have been shown). 

See Commonwealth v. Upton, 394 Mass. 363, 375 (1985), citing 

Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United 

States, 393 U.S. 410 (1969). In continuing to adhere to the 

Aguilar-Spinelli test in the context of challenges brought 

pursuant to art. 14 of the Massachusetts Declaration of Rights, 

the court on multiple occasions has rejected calls that it adopt 

the less demanding "totality of the circumstances" test employed 

by the United States Supreme Court in challenges brought 

pursuant to the Fourth Amendment to the United States

Constitution. See Upton, 394 Mass. at 371-375 (rejecting the 

rule adopted in Illinois v. Gates, 462 U.S. 213 [1983]). See 

also Commonwealth v. Lyons, 409 Mass. 16, 18 (1990) (declining 

to follow the rule stated in Alabama v. White, 496 U.S. 325, 328 

[1990]); Commonwealth v. Mubdi, 456 Mass. 385, 395-396 (2010). 
15

In its brief, the Commonwealth appears to maintain that

where, as here, the tip is not the sole basis for the police 

action, the Aguilar-Spinelli test does not apply. Rather, the 

Commonwealth seems to suggest, the information received from the 

informant can be considered as one factor among others that 

collectively tip the scales. In this manner, the Commonwealth 

effectively advocates for a "totality of the circumstances" test 

that the Supreme Judicial Court has time and again rejected. 

Under existing case law, if the requisite level of suspicion 

depends on an informant's tip, that tip must satisfy AguilarSpinelli.

Here, nothing in the record establishes the informant's 

basis of knowledge or his or her veracity. Indeed, although the 

Commonwealth refers to the information the undisclosed informant 

provided as an "anonymous tip," this actually overstates its 

force. An anonymous tip -- such as one made by an unidentified 

caller to 911 -- typically includes some information that is 

helpful to assessing the caller's basis of knowledge or 

reliability. See Commonwealth v. Depiero, 473 Mass. 450, 452-

453 (2016) (anonymous 911 caller reported seeing drunk driving 

in Cambridge, with the vehicle "swerving all over the road"). 

The Commonwealth not only failed to make any evidentiary showing 
16

with regard to these issues, but also expressly foreswore 

attempting to do so when the evidentiary hearing began.15

That said, the cases have long recognized that while the 

Commonwealth will need to demonstrate a tip's reliability based 

on "the informant's reliability and his or her basis of 

knowledge[, i]ndependent police corroboration may make up for 

deficiencies in one or both of these factors." Commonwealth v. 

Lyons, supra at 19. Thus, while the Aguilar-Spinelli test must 

be satisfied, there is more than one way of doing so. Moreover, 

in the context of reasonable suspicion, the demonstrated 

reliability of an informant's tip need not be as robust as what 

is needed to demonstrate probable cause. Lyons, supra. The 

question then is whether the observations the police made at the 

scene provided sufficient corroboration of the tip to establish 

its reliability for purposes of assessing reasonable suspicion.

At most, the police observations corroborated the 

unexceptional fact that at some undisclosed point in time, a 

green Volvo station wagon would be in the identified 

 

15 The fact that the record does not even memorialize what 

words the informant allegedly spoke itself impedes the 

Commonwealth's efforts to establish the indicia of reliability 

of information the police received. See Commonwealth v. Mubdi, 

456 Mass. at 396 ("By failing to introduce the 911 call in 

evidence, the Commonwealth has made difficult what otherwise 

might have been a straightforward assessment of the caller's 

source of information").
17

neighborhood.16 As the Supreme Judicial Court recently observed, 

"Corroboration of purely innocent details that are observable by 

any bystander, such as the description of a vehicle and its 

location, provides only limited enhancement to the reasonable 

suspicion determination." Commonwealth v. Pinto, 476 Mass. 361, 

365 (2017). To the extent the Commonwealth argues that the 

brief curbside interaction between the defendant and the 

unidentified pedestrian corroborated the tip that there were 

drugs inside of a green Volvo station wagon, we are 

unpersuaded.17 See Commonwealth v. Mubdi, 456 Mass. at 387, 398-

399 (fact that a person was observed interacting with defendant 

and other occupant of defendant's vehicle and started to walk 

away from the vehicle after seeing approaching police officers

held insufficient to corroborate informant's tip about a 

 

16 As noted, the informant provided no information about the 

vehicle's registration number or about the vehicle's occupants, 

if any. It is far from clear that the informant's tip satisfied 

the separate particularity requirement. Compare Commonwealth v. 

Lopes, 455 Mass. 147, 155, 157–158 (2009). We do not resolve 

this issue, as the defendant has not raised it and we reverse on 

other grounds.

17 In this regard, we note that it stands to reason that the 

extent to which police corroboration can fill in the gaps of 

demonstrating an informant's basis of knowledge and veracity 

will vary depending on how great those gaps are. If the 

evidence regarding the tip itself comes close to meeting the 

Aguilar-Spinelli test on its own, then presumably a lesser 

amount of corroboration is needed. Where, however, as here, 

there has been no direct showing of the informant's veracity and 

basis of knowledge, significant corroboration of that tip would 

be needed.
18

purportedly illegal sale of a firearm). Compare Commonwealth v.

Dasilva, 66 Mass. App. Ct. 556, 560 (2006) (anonymous tip that 

defendant illegally possessed a firearm was corroborated by 

police observations that, "[a]fter looking directly at the 

marked police cruiser, the defendant moved his right hand toward 

his waistband, fled up the stairs of the building where he was 

standing, and continued to flee even after [a police officer] 

ordered him to stop"). Without a sufficient showing that the 

informant's tip should be considered reliable, it cannot be 

relied upon to demonstrate reasonable suspicion.18 

Conclusion. The judge was correct not to rely on the 

informant's tip. However, without such reliance, his ruling 

that the police had reasonable suspicion to order the defendant 

out of his vehicle cannot stand. In turn, without a valid exit 

order, the police cannot rely on their discovery of the wad of 

 

18 Contrary to the suggestion made by our dissenting 

colleague, there are no cases that hold that a tip as 

unsubstantiated and uncorroborated as the one before us can be 

relied upon -- in whole or in part -- to establish reasonable 

suspicion. Indeed, it is difficult to find examples in the case 

law of where the Commonwealth put forward so little evidence to 

try to establish that a tip was reliable. Of course, it is 

possible that the actual circumstances of the tip provided 

police solid grounds for believing that the defendant was 

engaged in illegal drug activities (with or without the 

subsequent observations that police made). But in the context 

of a motion to suppress, the Commonwealth can rely only on what 

it puts in evidence. While the Commonwealth has substantial 

leeway to protect its confidential sources, see Commonwealth v. 

D.M., 480 Mass. 1004, 1005 (2018), and cases cited, it must live 

with the litigation risks of doing so.
2

money in the driver's door, and the police therefore lacked 

probable cause to search his vehicle. "Because the evidence in 

issue was traceable to . . . the illegal order[] that the 

defendant[] leave the car, it must in these circumstances be 

suppressed as the 'fruit of the poisonous tree.'" Commonwealth

v. Loughlin, 385 Mass. 60, 63 (1982). The order denying the 

defendant's motion to suppress is reversed.

So ordered.
HANLON, J. (dissenting). I agree with much of the 

majority's thoughtful decision. Respectfully, however, I 

dissent on the crucial issue -- whether, at the time that the 

officers told the defendant to get out of the vehicle, they had 

a reasonable suspicion to believe that he had engaged in an 

illegal drug transaction. The stop itself clearly was justified 

by the earlier traffic violation, a conclusion that the 

defendant does not really dispute. The motion judge explicitly 

credited the officers' testimony "that [the defendant] made [a] 

turn [from Copeland Street through the intersection at Warren 

Street and onto Waverly Street] without using any turn signal."1

Background. As the majority notes, the judge's findings 

were careful and thorough. First, he found that, at the time of 

the encounter, the two lead officers, Fabiano and Gero, "were 

both experienced narcotics investigators." They were assisted 

by officers from the District B-2 anti-crime unit. "That 

afternoon they were looking to intercept and stop a green Volvo 

station wagon because an unidentified informant had told Fabiano

that he could find such a vehicle in the area of Waverly and 

 

1 "[T]he authority to conduct a traffic stop where a traffic 

violation has occurred is not limited by '[t]he fact that the 

[police] may have believed that the [driver was] engaging in 

illegal drug activity.'" Commonwealth v. Buckley, 478 Mass. 

861, 866 (2018), quoting Commonwealth v. Santana, 420 Mass. 205, 

208 (1995).
2

Copeland Streets in Boston and that the vehicle would contain a 

large amount of illegal narcotics." 

When the officers stopped the defendant driving a green 

Volvo station wagon, they knew: first, the defendant had 

stopped his vehicle on Waverly Street, in front of the first 

building on the left, "a residential building." Second, "a

second man immediately left the nearest building and walked to 

the driver's door of [the defendant's] vehicle[. A]s the second 

man approached[, the defendant] leaned down to his right as if 

he were reaching toward the floor by the front passenger seat,"

using both hands. Third, the defendant then 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 placing his hands on the 

vehicle's door or reaching into the vehicle; he "was moving one

or both of his arms while he was standing next to the Volvo and 

facing [the defendant], in a manner consistent with the two men 

exchanging something." Fourth, after approximately thirty 

seconds, the defendant drove away and the second man walked back 

into the building he had emerged from a moment earlier. The 

motion judge found that, "[b]ased on their training and 

experience with hand-to-hand drug transactions, [the officers] 
3

both suspected that the pedestrian had purchased some kind of 

illegal drugs from [the defendant]." 

At the time that the officers ordered the defendant out of 

the vehicle, they had some additional information. They had 

asked for his license and registration, noting that the 

defendant "seemed to be nervous . . . [and] that [he] seemed to 

be breathing heavily, was looking in his rear view and side view 

mirrors at the various police officers and vehicles that had 

pulled up behind him, and was not making eye contact" with 

either of the officers who were speaking with him. Finally, 

while the judge declined to use the talismanic words "high crime 

area" and, in fact, specifically found that, as of this date, 

"the Boston police had no reason based on past experience to 

expect to see a drug transaction take place on Waverly Street or 

Copeland Street, which are both relatively quiet residential 

streets," he also "credit[ed] Of[ficer] Gero's testimony that 

over the years he ha[d] made numerous arrests for possession or 

distribution of illegal narcotics in this general neighborhood."2

Discussion. 1. Exit order. The law is clear that a 

police officer may order a driver to get out of a vehicle when 

 

2 Specifically, Gero testified, "In that specific area of 

Warren and Copeland is a -- Warren Garden is across the street. 

That area -- I've participated in numerous search warrants of 

the surrounding streets. I've made firearm arrests, drug 

arrests, arrests for breaking and [entering,] warrant arrests in 

that general area of the past [ten] years." 
4

he has a reasonable suspicion that the driver has committed a 

crime. See Commonwealth v. Bostock, 450 Mass. 616, 621-622

(2008). Therefore, as noted, the issue is whether the officer 

had reasonable suspicion when he ordered the defendant out of 

the vehicle. 

"[R]easonable suspicion is a lower standard than probable 

cause." Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998). 

See Commonwealth v. Hill, 49 Mass. App. Ct. 58, 63 (2000): 

"The specific facts on which the police based their 

stop of the defendant have been described as follows: 

'(1) a vehicle pulled up and an interaction occurred 

between someone in the vehicle and someone [in the 

parking lot], who apparently retrieved something 

before concluding the interaction with the vehicle's 

occupant; (2) [the interaction occurred] in a place 

known by the police officer[s] as a place of high 

incidence of drug traffic; and (3) [the interaction 

was] witnessed by an experienced officer, who had made 

numerous drug arrests [although not necessarily in the 

neighborhood] and considered the event as [suggesting] 

a drug sale.' Commonwealth v. Kennedy, 426 Mass. 

[703], 708 [1998]. Moreover, 'the quickness of the 

interaction between [the other party and the 

defendant] reasonably could be interpreted by the 

officer as suspicious conduct, similar to the 

suspicious conduct of the "furtive" transaction 

observed in [Commonwealth v. Santaliz, 413 Mass. 238, 

241 (1992)].' Commonwealth v. Kennedy, supra at 708-

709. We are mindful that in Kennedy the seller had 

been arrested previously for narcotics sales and was 

the subject of complaints from people in the 

neighborhood, id. at 704; that in Santaliz, there was 

an obvious exchange of an object and money, supra at 

240; and that in both Kennedy and Santaliz the 

officers had had considerable experience with drug 

transactions in the same location. However, in each 

of those cases the facts were deemed sufficient to 

establish probable cause for arrest. If the facts set 

out in Kennedy and Santaliz were sufficient to support 
5

a finding of probable cause, the facts established 

here were sufficient to establish reasonable 

suspicion" (emphasis supplied). 

See also Commonwealth v. Santiago, 470 Mass. 574, 579 (2015) 

("Although [the officer] did not see any item actually 

exchanged, the defendant's extended arm and [the recipient's]

corresponding gesture in relation to his shirt pocket provided 

some basis for [the officer's] belief that a drug transaction 

between the two men had just taken place").

I also suggest that art. 14 of the Massachusetts 

Declaration of Rights does not require us to ignore completely 

the fact that the officers made their observations after 

receiving a tip that a green Volvo station wagon containing a 

"large" amount of drugs would be in the area of Waverly and 

Copeland Streets. Certainly, the tip by itself did not satisfy 

either prong required by the teaching of Aguilar-Spinelli.3 

However, viewing the tip as one of a number of factors 

contributing to reasonable suspicion does not, as the majority 

fears, impermissibly weaken the standard to a mere "totality of 

the circumstances." See Commonwealth v. Depiero, 473 Mass. 450, 

452 (2016) ("[T]he information gleaned from the anonymous call 

in the present case, corroborated by other information, was 

sufficiently reliable to warrant a finding that the officer had 

 

3 See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. 

United States, 393 U.S. 410 (1969).
6

reasonable suspicion to stop the defendant's vehicle"). In this 

case, the tip was corroborated by the fact that someone driving 

a green Volvo station wagon engaged in what the officers 

reasonably suspected was a drug transaction some fifty feet up 

Waverly Street from the intersection of Waverly, Copeland, and 

Warren Streets. 

The majority does not cite to any case holding that such a 

tip must be disregarded completely, and there are a number of 

other cases that hold otherwise. See, e.g., Commonwealth v. 

Anderson, 461 Mass. 616, 623, cert. denied, 568 U.S. 946 (2012)

("Where the caller is anonymous, there are at least two ways to 

establish the caller's reliability. The first is through 

independent corroboration by police observation or investigation 

of the details of the information provided by the caller. See 

. . . Florida v. J.L., 529 U.S. 266, 270 [2000], quoting Alabama

v. White, 496 U.S. 325, 327 [1990] [anonymous tip, suitably 

corroborated, may exhibit 'sufficient indicia of reliability to 

provide reasonable suspicion to make the investigatory stop']");

Commonwealth v. Wilson, 441 Mass. 390, 395-396 (2004)

("Independent police corroboration of the details in the 

telephone call by [the t]rooper . . . when he arrived at the 

location identified by the caller and saw a group of nine men 

establishes that the caller's information was also reliable.

Commonwealth v. Willis, 415 Mass. 814, 819 [1993]").
7

Finally, the fact that the tip predicted a future event 

(the Volvo would arrive at the particular intersection 

containing drugs) also buttresses its credibility. See 

Commonwealth v. Va Meng Joe, 425 Mass. 99, 104 (1997) 

("Corroboration of future behavior, which goes beyond 'readily 

available information,' has a special significance when 

determining the reliability of an informant").

"For more than seventy-five years, we have avoided an

overly formulaic approach to the determination of whether there 

is [reasonable suspicion to detain] a person who is suspected of 

participation in a street-level drug transaction." Commonwealth

v. Sanders, 90 Mass. App. Ct. 660, 660 (2016). "'A police 

officer may make an investigatory stop "where suspicious conduct 

gives the officer reasonable ground to suspect that a person is 

committing, has committed, or is about to commit a crime." . . . 

The action of the officer "must be based on specific and 

articulable facts and reasonable inferences therefrom, in light 

of the officer's experience."' Commonwealth v. Gomes, 453 Mass. 

506, 510-511 (2009), quoting Commonwealth v. Wilson, 441 Mass. 

[at] 394." Commonwealth v. Stewart, 469 Mass. 257, 261 (2014). 

While certainly, as the majority observes, there are many 

possible explanations for each of the facts individually (yes, 

the defendant could have been dropping off Celtics tickets, and 

yes, the defendant likely was nervous because there were several 
8

police officers), police officers do "not have to exclude all 

the possible innocent explanations for the facts in order to 

form a reasonable suspicion." Commonwealth v. Isaiah I., 450 

Mass. 818, 823 (2008). "Although nervous or furtive movements 

do not supply reasonable suspicion when considered in isolation, 

they are properly considered together with other details to find 

reasonable suspicion." Commonwealth v. DePeiza, 449 Mass. 367, 

372 (2007). "We view the 'facts and inferences underlying the 

officer's suspicion . . . as a whole when assessing the 

reasonableness of his acts.' Commonwealth v. Thibeau, 384 Mass. 

762, 764 (1981). 'Seemingly innocent activities taken together 

can give rise to reasonable suspicion justifying a threshold 

inquiry.' Commonwealth v. Watson, 430 Mass. 725, 729 (2000)." 

Commonwealth v. Gomes, 453 Mass. at 511. "We do not examine 

each fact known to [police] at the time of the stop in 

isolation; instead we view the 'facts and inferences underlying 

the officer's suspicion . . . as a whole when assessing the 

reasonableness of his acts.'" Commonwealth v. Isaiah I., supra, 

quoting Commonwealth v. Thibeau, supra. I am satisfied that, in 

the case before us, all the facts together support the judge's 

conclusion that the exit order was properly grounded in 

reasonable suspicion. 

2. Search. After the defendant got out of the Volvo, one 

of the police officers observed in plain view a roll of money 
9

packaged in a clear plastic bag and tucked into the compartment 

on the inside of the driver's door. This observation -- a large 

sum of cash -- together with the officers' reasonable suspicion

that the defendant had just engaged in a drug transaction gave 

them probable cause to believe that the vehicle would contain 

evidence of the drug transaction, as well as evidence that the 

defendant was in possession of illegal drugs, intending to 

distribute them. Compare Commonwealth v. Stephens, 451 Mass. 

370, 385 (2008). The police could then search the Volvo without 

a warrant under the motor vehicle exception. See Commonwealth

v. Johnson, 461 Mass. 44, 49-50 (2011). 

I believe that the judge's order denying the motion to 

suppress should be affirmed.