Providence County No. P2/12-1962ASuperior Court Associate Justice William E. Carnes, Jr. Judge
For State: Jane M. McSoley Department of Attorney General
For Defendant: Angela M. Yingling Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
The defendant, Ray Burgess, stands convicted of one count of possession of cocaine. On appeal, he argues that the trial justice erred in denying his motion to suppress physical evidence seized and statements he made following an unlawful arrest. We agree and, therefore, vacate his conviction.
Facts and Travel
On October 26, 2011, during the course of a traffic stop, Rhode Island State Police Officer Brian Macera (Det. Macera) discovered that the passenger of the stopped vehicle was the subject of an outstanding warrant. We shall refer to this passenger as the confidential informant. Before the traffic stop, the confidential informant was unknown to Det. Macera. In the hopes of avoiding arrest, the confidential informant told Det. Macera that a clean-shaven African American male with short-cropped hair and a thin build was distributing crack cocaine in the vicinity of Providence and Cranston. The confidential informant identified this drug dealer only by his nickname, "CJ." Detective Macera also was informed that CJ drove a blue Mercury vehicle with unknown Rhode Island registration plates. Finally, the confidential informant told Det. Macera that CJ either was at or would soon arrive at the Royal Buffet restaurant in Cranston, where he would be found in possession of crack cocaine. Armed with this information, Det. Macera contacted his supervisor, who, in turn, contacted the Rhode Island State Police High Intensity Drug Trafficking Area Task Force (task force).
Later that day, Det. Macera, the confidential informant, and several members of the task force proceeded to a Cranston shopping plaza in which the Royal Buffet is located. Detective Macera testified at the suppression hearing that "surveillance was set up at the Royal Buffet, " but it is evident from his testimony that the "surveillance" consisted of nothing more than establishing a police perimeter around the shopping plaza and waiting for CJ to emerge. No attempt was made to locate a blue Mercury vehicle in the shopping plaza's parking lot because of the "large amount of vehicles" in the plaza.
When defendant-who Det. Macera testified matched the physical description of CJ provided by the confidential informant-exited the Royal Buffet, the confidential informant identified him as CJ. The defendant immediately was taken into custody. According to Det. Macera, he and his colleagues "surrounded" defendant,  had him place his hands on a vehicle, and conducted a pat-down search. During the course of the pat-down of defendant's outer clothing for weapons, Det. Macera felt a "bulge" in defendant's front pocket; Det. Macera reached into defendant's pocket to remove the material, which turned out to be $62 in cash. Detective Macera read defendant his Miranda rights and explained that he was suspected of selling drugs. At first, defendant told the officers that he was not in possession of any drugs.
During this encounter, after he had been "surrounded" by police officers, defendant "appeared [to Det. Macera] to be very nervous"; "his body was trembling, " and he "would not make eye contact" with the officer. When Det. Macera asked defendant about the odor of burnt marijuana that he detected, defendant admitted that he had smoked that substance earlier that day. Detective Macera informed defendant that a State Police K-9 unit was en route to the scene. Faced with this prospect, defendant lowered his head and said, "It's in my pocket." A search of the waistband of defendant's jacket revealed two bags of suspected crack cocaine. After the discovery of the contraband, defendant identified his vehicle: a blue Chevrolet Impala with Rhode Island license plates. Detective Macera testified that defendant's vehicle is similar to the vehicle described by the confidential informant. In consideration of the assistance provided to law enforcement, the confidential informant was not charged with any crime, and the record is silent about what, if anything, happened with respect to the outstanding warrant or why it was issued.
The defendant, on the other hand, was charged with one count of possession of cocaine. He moved to suppress the two bags of crack cocaine and his statements to Det. Macera, arguing that he was arrested without probable cause and that the subsequent search of his jacket violated the state and federal constitutions. After a suppression hearing, the trial justice denied the motion, concluding that police had probable cause to arrest defendant. In reaching his probable-cause determination, the trial justice relied on the following evidence from the suppression hearing: Det. Macera's testimony that he smelled the odor of burnt marijuana when questioning defendant; defendant's nervous behavior and incriminating statement that "[i]t's in my pocket"; the "surveillance" that occurred at the Royal Buffet before defendant was apprehended; and the match between defendant's appearance and the description given by the confidential informant.
After trial, a jury convicted defendant of the charged offense, and the trial justice sentenced him to two years of ...