COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss. SUPERIOR COURT ACTION NO, 14-1018, 14-1019 COMMONWEALTH we ANTHONY PEREZ WILMARIE HERNANDEZ MEMORANDUM OF DECISION AND ORDER ON MEF] NTS’ MOT) TO SS NCI Defendants Anthony Perez (“Pere2") and Wilmarie Hemander (“Hernandez”) are charged with trafficking heroin, doing so in a school zone and several counts related to the illegal possession of firearms and ammunition. Perez is also charged with resisting arrest, assault and battery on a police officer and receiving stolen property, As to Perez, on the firearms charges, the Commonwealth seeks sentencing enhancement as a subsequent offender. The case is before me on Perez’s Motion to Suppress Evidence in which Hemandez joins. Specifically he contends that the police lacked reasonable suspicion to stop the vehicle, Hemande2’s arrest was without probable cause and the subsequent search oF her vehicle was not justified by any exception to the warrant requirement. For the following reasons, I conclude that the motions must be ALLOWED. FINDINGS OF FACT ‘After an evidentiary hearing on July 27, 2015, I find the relevant, credible facts as follows: At approximately 6:53 p.m. on August 28, 2014, the Holyoke Police Department received several calls related to gunshots fired in the area of Farnum Drive and Tokeneke Road in Holyoke, ‘The unidentified callers described shots fired from a vehicle. Two callers described the vehicle as a blue Jeep, possibly a Jeep Cherokee. Another caller described the vehicle as a 1“black car.” They further stated that the vehicle sped off in the direction of K-Mart, One caller described the occupants as “two Spanish guys.” Holyoke Police Officer Michael Everett heard the police dispatch report of the incident and, at approximately 6:58 p.m., observed a vehicle matching the description traveling north on Main Street from his position southbound on Main Street. This location was approximately one and one half miles from the intersection of Tokeneke Road and Famum Drive, He observed the vehicle pull to the side of Main Street und stop as he approached {rom the opposite direction. Officer Everett made a u-turn, pulled behind the blue Jeep Cherokee without activating his overhead lights and reported by radio his position and situation. He could see that the operator of the blue Cherokee was an Hispanic female, later identified as Hetnandez. He observed the passenger, ater identified as Perez, exit the Cherokee and begin walking south on the sidewalk . He made no effort to stop the passenger. Officer Everett approached the Cherokee and made contact with the driver, Hernandez. He asked whence she came, She responded by asking if she had done something wrong. He asked her to tum the vehicle off and repeated his question. She responded “what did 1 do vwarong?” As he engaged the driver, Officer Everett observed glassine bags in plain view in the driver's door storage area. He knew that glassine bags were common in the drug trade, but acknowledged that he could sec the bags were empty. He asked Hernandez to exit the car, placed her in handcuffs and moved her to the rear of his cruiser. In the process, she stated that she was “an addict.” Shortly after Officer Everett pulled behind the Jeep Cherokee, members of the Western Massachusetts Gang Task Force who were working in Holyoke on unrelated matters, pulled beside him in an unmarked police vehicle and asked if he needed help. Before approaching the Jeep Cherokee, Officer Everett asked them to stop the passenger who exited and walked south on the sidewalk, The Task Force Agents quickly puiled beside Perez in their vehicle. ChicopeePolice Officer Robert Lockett, a member of the Task Force, exited his vehicle, made eye contact with Perez, and said “don’t doit.” Perez then fled. Officer Lockett gave chase and caught Perez from behind as he attempted to scale a fence. Meanwhile, back at the Jeep Cherokee, Officer Everett conducted what he described as an “inventory search” of the vehicle. That search revealed a blue bag under the driver's seat Partially obscured trom view. The bag was full of packaged heroin. He also found a firearm on the floor in the area between the passenger seat and the passenger door. Following his arrest Perez was interviewed at the Holyoke Police Department, He was advised of his rights pursuant to Miranda, acknowledged he understood them and voluntarily waived them. He admitted to being present with his aunt, Hernandez, when the shots were fired, ‘but implicated a third, unnamed person as the shooter. He explained that they were protecting ‘themselves from others who had threatened him, He denied knowing there were drugs in the car. After a review of the audio and video recorded statement (Exhibit 2), | find beyond a reasonable doubt that these statements were voluntary. SON! FLAW Asa threshold matter, Hemandez and Perez have automatic standing to challenge the search of the vehicle because they are charged with possessing contraband scized from that vehicle. See Commonwealth v, Mubdi, 456 Mass. 385, 390 (2010). The Commonwealth does not suggest otherwise. ‘The standard for justifying a stop is reasonable suspicion that the person stopped is committing, has committed or is about to commit a crime. Commonwealth v, Silva, 366 Mass. 402 (1974). The reasonable suspicion must be based on specific and articulable facts, T conclude that the report of shots fired from a blue Jeep Cherokee five minutes earlier and the sighting ofa blue Jeep Cherokee within one and one half miles of that location provided a reasonable basis to stop the vehicle and make inquiry of the oceupants.Probable cause to arrest, however, requires more. An arrest requires probable cause, based on particularized facts, to reasonably believe the individual arrested has committed a crime. Here, Officer Everett testified that the reason he placed Hernandez under attest was his observation of drug paraphemalia, glassine bags, in the driver's side door which, to his credit, he admitted he observed were empty, The presence of empty glassine bags in plain view may well have added to Officer Everett’s suspicion, but without more, this observation does not tip the scales in favor of probable cause to arrest Hernandez for controlled substance or firearms offenses {In an effort to salvage the evidence seized incident to that arrest, the Commonwealth argued that under the totality of circumstances Officer Everett had probable cause to arrest Hemandez for the shooting incident at Tokeneke Road and Farnum Avenue. Iam not persuaded. At the time Officer Everett placed Hemandez under arrest he possessed the following information: (1) a dark vehicle, possibly a blue Jeep Cherokee was reported to have been involved in a shooting incident; (2) two Hispanic males were reported to have been. involved; (3) Hernandez was observed driving a blue Jeep Cherokee one and one half miles away approximately five minutes later; (4) she pulled the vehicle to the curb without police involvement; (5) the passenger exited the vehicle and walked away; (6) Hemandez asked what she had done wrong; and (7) empty glassine bags were in plain view in a compartment on the driver’s side door. In my judgment, these facts alone do not establish probable cause to arrest ‘Hernandez for controlled substance or firearms offenses. Accordingly, whether the subsequent ‘warrantless search of the vehicle was incident to that arrest or, as Officer Everett suggested, pursuant fo the Holyoke Police Department inventory policy for towed vehicles, the fruits of the vehicle search must be suppressed, as cach theory is dependent upon a lawful arrest ' The Commonwealth did not argue or offer evidence in support of any other exception 1 the warrant requirement. Nor did it argue that discovery ofthe contraband was inevitable or had un independent source. 4Accordingly, as to the physical evidence seized from the blue Jeep Cherokee, the motions to ‘suppress are ALLOWED. Perez claims that his statements to police officers should be suppressed as fruit of the poisonous tree. In other words, according to Perez, his statements should be excluded because they were the direct product of the illegal arrest and vehicle search. Because Perez's interrogation focused, in large part, on the contraband seized ftom the car, find there is a sufficient causal connection between the illegal seizures andl the subsequent statements ta warrant application of the exclusionary rule. See Commonwealth v. Borges, 395 Mass. 788, 795 (1985). Accordingly, the motion to suppress Perez’s statements is also ALLOWED. ORDER For all the foregoing reasons, the defendants’ motions to suppress evidence are ALLOWED. com ider| Associate Justice of the Superior Court DATED: July 28, 2015