Summary
In Burgos, the other case cited by the government, the Court found it critical that the police "had probable cause to believe that securing the apartment was necessary to prevent the destruction of evidence."
Summary of this case from U.S. v. DessesaureOpinion
No. 99-2419-2421
July 14, 2000
Introduction
The defendant Alexis Burgos ("Burgos") was indicted by an Essex County Grand Jury on charges of Trafficking a Class B Substance over 14 grams, Distribution of a Class B Substance and Conspiracy, allegedly occurring on August 9, 1999 in Lynn. Burgos now seeks to suppress all evidence seized by the police, without a search warrant, from his person and from the gold Honda motor vehicle in which he was a passenger at the time of his arrest on August 9. Burgos asserts that the search of his person and the vehicle in which he was a passenger violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. Burgos also seeks to suppress evidence seized by police upon a subsequent search of 53 Smith Street, #3 ("53 Smith Street") pursuant to a search warrant.
Each of Burgos's co-defendants are charged in identical indictments as joint venturers with him. Each co-defendant has raised a similar motion or moved to join in the motion(s) of his co-defendants.
Burgos and Alejandro Moreno ("Moreno") occupied the gold Honda at the time of the stop and arrest. Amado Roman ("Roman"), Thomas Toribio ("Toribio") and Camilo Leon ("Leon") were present at 53 Smith Street at the time the police sought to secure the premises preparatory to obtaining the search warrant. All of the individuals stand charged similarly as co-defendants. The motions before the court concern a warrantless stop of a gold Honda motor vehicle on Lawton Street in Lynn and the search and seizure of the vehicle and its occupants (Burgos and Moreno); a subsequent warrantless search and seizure of certain individuals (Roman, Toribio, and Leon) at 53 Smith Street during the course of police attempts to secure that apartment prior to obtaining a search warrant for the premises; and the search of the apartment itself pursuant to the search warrant obtained.
The issues raised by the motions and the hearing held
1. The warrantless searches of the motor vehicle and the individual defendants
Each defendant filed, or sought to join in, a motion to suppress evidence obtained pursuant to the warrantless searches, as well as evidence obtained pursuant to the search warrant for the premises at 53 Smith Street. In reviewing the motions and supporting affidavits, the court concluded that the warrantless search of the motor vehicle in which Burgos and Moreno were stopped, and the warrantless searches of Roman, Toribio, and Leon at 53 Smith Street required an evidentiary hearing. Moreover, while not required for purposes of the Distribution indictment or the Conspiracy indictment, the court also allowed each co-defendant to participate in the motions with respect to the warrantless searches of the other co-defendants, notwithstanding that automatic standing is limited only to those instances in which possession at the time of the contested search is an essential element of the crime. Commonwealth v. Amendola, 406 Mass. 592, 601 (1990). 2. The search warrant for 53 Smith Street
Neither Distribution of cocaine, nor Conspiracy to Distribute cocaine is a possessory offense triggering automatic standing.
The motions challenging the search of 53 Smith Street pursuant to a search warrant stand on different footing. After review of the motions and supporting affidavits, and after offering each defendant the opportunity to supplement the supporting affidavits, the court concluded that the defendants have not properly raised a challenge as to the search of 53 Smith Street. Notwithstanding that the defendants are charged as co-defendants with a possessory offense (Trafficking), because no defendant has satisfied his burden of demonstrating that he had a reasonable expectation of privacy in the premises at 53 Smith Street, a search in the constitutional sense did not take place for purposes of either the Fourth Amendment, Commonwealth v. D'Onofrio, 396 Mass. 711, 715 (1986) or art. 14, Commonwealth v. Carter, 424 Mass. 409, 411-412.
Not one of the defendants has demonstrated a reasonable expectation of privacy in 53 Smith Street. Not one of the co-defendants has asserted by affidavit that he was a tenant, a lawful occupant, or even an overnight guest of a lawful occupant. Commonwealth v. Midi, 46 Mass. App. Ct. 591, 593 (1999). See Minnesota v. Carter, 119 S.Ct. 469, 473 (1998). Since no defendant has demonstrated an expectation of privacy, no co-defendant may not avail himself of the limited exception to the requirement that each defendant have an expectation of privacy in the place searched. Commonwealth v. Frazier, 410 Mass. 235, 243 (1991). Commonwealth v. Carter, supra. Consequently, the cocaine seized upon execution of the search warrant for 53 Smith Street need not be suppressed because the search and seizure of the cocaine at 53 Smith Street was not a search in the constitutional sense. Accordingly, the motions to suppress evidence seized pursuant to that search warrant are DENIED .
Contrary to Burgos' argument on this point, requiring a defendant to assert an interest in the premises for purposes of raising an expectation of privacy does not encroach upon his Fifth Amendment right to remain silent. Commonwealth v. Rivera, 425 Mass. 633, 639 (1998).
The evidentiary hearing
On June 27 and July 11, 2000, the court held an evidentiary hearing on the warrantless searches and seizures at issue After hearing, and for the reasons set forth below, the court DENIES Burgos' and Moreno's motions to suppress evidence from the warrantless search of their respective persons and from the motor vehicle; DENIES Toribio's and Roman's motions to suppress evidence seized from the warrantless search of their respective persons at 53 Smith Street; and ALLOWS Leon's motion to suppress evidence seized during the warrantless search of his person at 53 Smith Street and any subsequent search at the police station following his arrest.
FINDINGS OF FACT
At the hearing on the motion, the court heard testimony from several police witnesses. On June 27, the Commonwealth called Lynn police officers Kenneth Estes ("Estes") and Lawrence T. Wentzell ("Wentzell"), and Massachusetts State Police trooper Timothy F. Leeman ("Leeman"). On July 11, the defendants Burgos and Moreno called State Police Sergeant Alan Zani ("Zani"). I found all of the witnesses credible in all respects, although some had greater recall of the facts.
A defendant clearly has the right to present evidence in support of a motion to suppress evidence. Also beyond dispute is the obligation of defense counsel to represent a client zealously and within the bounds of the law. However, the calling of Zani by the defendants appears to have been for purposes of discovery rather than for the presentation of evidence in support of the motions founded upon a good faith basis that such evidence would defeat, or make less likely, the Commonwealth's proof.
That a motion to suppress has ancillary discovery value is clear. Nevertheless, a motion to suppress evidence is not the equivalent of a civil deposition. Counsel had not interviewed Zani and possessed no reasonable basis to conclude that Zani would provide testimony favorable to their positions. The court frowns on such tactics.
Based upon the credible evidence, I find the following facts:
On August 9, 1999, officers Estes, Wentzell and other Lynn police officers were working on a drug investigation in conjunction with State police, including Leeman and Jack Foster ("Foster"), under Zani's supervision. Based upon information developed, the police decided to call a pager number and set-up an undercover purchase of cocaine by Estes, using identifiable money for which the serial numbers had been recorded. At about 5:00 p.m. Wentzell and Zani called the pager number they had obtained (617-579-6115), and shortly thereafter received a return telephone call on Wentzell's cell phone. Zani fielded the return call and because of language difficulties, spoke with three different individuals, two Hispanic males and a female who spoke English well. He arranged for a purchase of cocaine to be concluded at a location in the vicinity of a convenience store and video store at 114 Washington Street in Lynn, near the intersection with Laighton Street. Police were told to look for a gold Honda to make the delivery.
The police went to the area to set up surveillance. Estes, who was in plain clothes on Washington Street, was to be the buyer. Wentzell and Zani were parked in an unmarked minivan across the street and in sight of Estes. Leeman was alone in an unmarked vehicle around the corner on Laighton Street. Takedown or marked police units were nearby and out of sight. The police were able to communicate with each other throughout the operation by use of Nextel devices with two way radio features. All the participants had the Nextel on continuously, except Estes, who had it off at various points for safety reasons.
After police were in position, a gold Honda appeared on Washington Street, travelling slowly. The first time the gold Honda passed by on Washington Street, Estes did not see it, nor did the motor vehicle stop. Wentzell and Zani saw the vehicle pass by slowly and turn onto Laighton Street where Leeman saw it. The vehicle had four occupants who appeared to be Hispanic males. Two were in front; two in the rear. A couple of minutes later, the gold Honda made a second pass on Washington, again travelling slowly, again not stopping, and again turning onto Laighton Street. This time Estes also saw it pass. Estes communicated with Zani who told him that this might be the vehicle.
Meanwhile, Leeman had noted the registration number of the gold Honda for purposes of determining the registered owner and communicated it to Zani. Zani called for a listing and received information which he passed on to the group via the Nextel that the vehicle was registered to Alejandro Moreno of 53 Smith Street, Lynn. After the second pass of the gold Honda without stopping, Zani directed Leeman to follow the Honda. Without ever losing sight of the vehicle, Leeman followed and observed the Honda pull up to 53 Smith Street, about five minutes away. Leeman then saw four Hispanic males alight and enter 53 Smith Street, a three story multi-family dwelling having a common entry.
Zani ordered Leeman to wait at that location while a second call was made to the pager number. Wentzell then dialed the same pager number and received a return telephone call which Zani answered. After speaking with the caller, Zani told Wentzell, Leeman, and the others that the individuals would be returning to Washington Street to make the sale.
Leeman then observed two of the four individuals who had originally entered 53 Smith Street return and enter the Honda. At the hearing, Leeman identified these individuals as Burgos and Moreno. Leeman followed the Honda back to Washington Street. There, Estes who was standing in the parking lot of the convenience store near the sidewalk, saw the Honda passing slowly. Estes saw the passenger, whom he later identified as Burgos, waive or motion for him to "come here", as the vehicle driven by Moreno continued slowly around the corner onto Laighton Street.
Estes walked around the corner where he walked up to the passenger side of the Honda and leaned inside. Estes handed Burgos $100 in bills (the serial numbers having previously been recorded) and requested "Two" or two twists of cocaine, telling Burgos to hurry. Burgos counted the money and spit from his mouth two plastic twists containing what Estes believed to be cocaine. After he gave these to Estes, the vehicle drove away. As Estes walked back toward the convenience store, he took off the hat he was wearing as a pre-arranged signal to the others that the deal had been consummated. He also turned on his Nextel and communicated orally that the deal was complete.
At this point, Zani and Wentzell, who had observed Estes' interactions with the passenger of the Honda from a distance, gave the signal to surveillance and the marked units to stop the vehicle. Uniformed officers in a marked unit stopped the Honda a short distance away where it had turned onto Lawton Avenue. There, Wentzell, Zani, and the uniformed officers arrested and cuffed Burgos and Moreno, seizing from Burgos $129 in cash which they determined included the photocopied bills supplied by Estes. They also seized Moreno's drivers license and the keys which were in the ignition to the vehicle after determining that the key ring had what appeared to be a house key. The police also found a pager which they examined to determine if Wentzell's cell phone number appeared in the memory. It did not, giving rise to the belief that the pager to which they had placed the calls for a purchase was elsewhere, probably at 53 Smith Street.
While Burgos and Moreno were being taken to the station by the uniformed officers, Zani, Wentzell, Leeman, and Foster headed towards 53 Smith Street for the purpose of securing the premises prior to applying for a search warrant. Zani and Wentzell were armed with the key seized from the ignition and Moreno's driver's license. I infer that they were concerned that cocaine and other evidence at that location would be removed when Burgos and Moreno failed to reappear. Upon arriving at 53 Smith Street, Zani and Wentzell spoke with an occupant of a first floor apartment, showing him Moreno's driver's license, to determine which unit he might live in. They were directed to the second floor left apartment, unit #3.
Upon arriving at apartment number three, Wentzell placed a key from Moreno's key ring into the door lock to determine whether it would work the mechanism. It did. Thereupon, Wentzell removed the key and knocked on the door. Standing next to and behind Wentzell were Leeman and Zani. All were in plain clothes, but on a chain around their necks wore badges identifying them as police.
Toribio answered the door. Standing behind him was an Hispanic female, later determined to be a juvenile named Muniz. Upon seeing Toribio, Leeman confirmed to the others that Toribio was one of the four who had entered Smith Street from the gold Honda after he had followed it from Washington Street. At that point Leeman also recognized Toribio from a prior case. Upon seeing the police at the door, Toribio made a motion with his right hand, going to his right pocket and then to his mouth as if to swallow something. Zani seized Toribio and tried to determine what, if anything was in his mouth. Nothing was found.
At that point, without invitation from anyone, Leeman and Wentzell entered the apartment. They entered for the purpose of securing the apartment and any occupants while a search warrant was applied for to search for cocaine, and other evidence of distribution, including the pager used to set up the controlled buy. Upon entry, Leeman went to the right toward two bedrooms. Zani followed, leaving Toribio with Wentzell and Foster in the main room which was a combined living room and kitchen. Roman, who was seated on a couch in the living room, made no attempt to get up or to flee upon entry by the police. Leeman later identified Roman as one of the four individuals (along with Burgos, Moreno and Toribio) who had first occupied the gold Honda.
Upon entering one of the rear bedrooms Leeman observed a man, later identified as Leon, lying on a bed talking on a cellular phone in Spanish. Leon made no attempt to flee or to confront Leeman. Leeman ordered Leon to get out of the bed and come toward him. At no point was there any objective reason to believe that Leon possessed any weapon with which he might harm Leeman. Leeman then brought Leon into the main living room where Toribio and Roman were.
In the kitchen, the police observed a half-consumed cigarette which appeared to be marijuana. There was no indication how long the item had been there or who had deposited it there. In the living room on the floor next to the couch on which Roman was sitting, a uniformed officer named Wojewodzic observed a small amount of residue of what appeared to be marijuana. Nowhere in the house was there present any odor of marijuana or of smoke.
While Leeman and Foster remained in the living room with Roman, Toribio and Leon, Zani and Wentzell went into the hallway to speak privately with the female juvenile. The juvenile told Zani that she was the individual who had spoken with him the first time in response to the first page. She told Zani that she had told "them" (without specification to whom she was referring) the location where the controlled buy was to take place. She also told Zani that she had asked them not to go the rendezvous because she was a juvenile and didn't want to get in trouble. At that point, Zani returned inside the apartment and directed that Roman, Toribio, and Leon be arrested for possession of marijuana, as well as for distribution of cocaine and conspiracy.
Memories diverged as to who conducted the searches of the persons of Roman, Toribio, and Leon. Whether the searches occurred before or after they were formally placed under arrest is unclear. It is beyond dispute, however, that the police did search the persons of each of them in the main living room at 53 Smith Street. It is also beyond dispute that prior to their arrest, there was no objective basis upon which police might have reason to pat-frisk any of the defendants for weapons. The focus of the police searches of the persons was for evidence of a crime-either the crime of possession of marijuana (which Zani directed that they be arrested for), or the crimes of distribution of cocaine or conspiracy to distribute cocaine or both, as Wentzell remembered (including the pager to which the call had been placed).
In the search incident to the arrest of each, the police found a set of keys on each, which they tried on the door lock to 53 Smith Street. Leon's keys fit the lock and were seized. Toribio's and Roman's did not and were returned.
Also seized from Toribio was a pager, a cell phone and some currency, although whether at the scene or later is unclear. In looking at the memory display for the phone, the police were able to confirm that this phone had not been used to return the page from Wentzell and Zani. Taken from Roman was a small amount of currency.
Subsequent to the arrests, Roman, Toribio, and Leon were taken from the apartment. Officers remained at the premises until the arrival of the search warrant. The police did not conduct a search of the premises until the warrant authorizing them to do so arrived.
RULINGS OF LAW
The search of the Burgos and Moreno and the Gold Honda
The warrantless stop and search of Burgos and Moreno and the gold Honda on Lawton street was constitutionally proper. At the time police stopped the vehicle there was probable cause to believe that the occupants had just distributed cocaine to Estes, a felony. Commonwealth v. Lussier, 333 Mass. 83, 92 (1955). Accordingly, the stop of the vehicle and the search of the occupants and of the motor vehicle was permissible, both as a search incident to a lawful arrest, Commonwealth v. Madera, 402 Mass. 156 (1988), and as a motor vehicle search based upon probable cause. Commonwealth v. Motta, 424 Mass. 117, 122 (1997). The money found on Burgos and the keys on the key ring in the ignition were properly seized as evidence of the crime. The police had probable cause to believe that the defendants stored their cocaine at 53 Smith Street and that the house key on the key ring and Moreno's license would provide them with evidence as to the particular apartment and the defendants' connection to the apartment.
The search of Toribio and Roman at 53 Smith Street
Based upon all the police observations, there was probable cause to believe that evidence of the crimes of distribution, conspiracy, and possession with intent to distribute (or Trafficking) would be present at 53 Smith Street. The individuals who had sold the cocaine to Estes were linked to that location and to at least two other individuals who had returned to that location following the first (unsuccessful) attempt at a sale. Rather than conducting a search of the premises based upon probable cause and arguably exigent circumstances, see Commonwealth v. Olivares, 30 Mass. App. Ct. 596, 599 (1991), the police commendably exhibited constitutionally appropriate restraint in seeking to secure the premises while obtaining authorization to search in the form of a search warrant. Commonwealth v. Blake, 413 Mass. 823, 829 n. 8 (1992). Commonwealth v. Alvarez, 422 Mass. 198, 210 (1996):
Securing a dwelling, on the basis of probable cause, to prevent the destruction of evidence while a search warrant is being sought is not of itself an unreasonable seizure of the dwelling or its contents. While this might have been accomplished by merely securing the perimeter of the apartment, it was reasonable for the officer to enter the apartment to determine whether it was occupied, to prevent the destruction of evidence, and to protect the safety of the officers and residents of the apartment building.
See Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990) (police may secure an area to be searched before a warrant is procured and until the police arrive at the area with the warrant. Commonwealth v. Ortiz, 376 Mass. 349, 357, n. 9 (1978). See Commonwealth v. Martino, 412 Mass. 267, 275-276 (1992) (posting of a guard while obtaining a search warrant). Securing the premises to obtain a warrant is permissible and preferable to search of a residence based upon probable cause and exigent circumstances. Here, as in Alvarez, the police had probable cause to believe that securing the apartment was necessary to prevent the destruction of evidence. Upon the failure of Burgos and Moreno to return from the sale, their accomplices would undoubtedly be alerted to the likelihood of capture and take steps to destroy or conceal the evidence.
Putting the key seized from Moreno into the lock tumbler to Unit #3, accessible from a common hallway, is arguably a search but not one implicating the Fourth Amendment or art. 14 . Commonwealth v. Alvarez, 422 Mass. 198, 208, 210 (1996). Moreover, entering the apartment to sweep the premises and secure it while obtaining a search warrant is permissible, provided that a search is not conducted. Here, the police did not use the entry and sweep as a subterfuge to search, but as a measured manner of preventing the destruction of evidence prior to arrival of a search warrant. As found, the police did not search the premises prior to obtaining the search warrant.
The search of the persons of Toribio, Roman, and Leon is different from securing the apartment. The police possessed neither probable cause nor reasonable suspicion to believe that any of these individuals might be armed. So a search of their persons for protective reasons is not permissible upon the facts found. However, the police did have probable cause to believe that Toribio and Roman were accomplices to Burgos and Moreno, justifying their arrest as joint venturers in the distribution of cocaine to Estes and in a conspiracy to do so. Leeman had observed all four inside the gold Honda in the first (unsuccessful) attempt at sale and had followed them back to Smith Street. Moreover, Muniz had told Zani that after setting up the sale in the first telephone call she had told them not to go. Inferentially this could reasonably be taken to mean the four individuals who went to the first rendezvous. Accordingly, police permissibly could search their persons for weapons and evidence of the crime for which they were chargeable, distribution and conspiracy, including the pager and other evidence of those crimes.
The search of Leon
The search of Leon was not proper, as it was not founded upon probable cause to believe he had committed either the distribution or conspiracy with Burgos, Moreno, Roman, and Toribio. Leon was never observed in the gold Honda by Leeman or anyone else at any time on that day-including the first (unsuccessful) attempt at sale. He was not identified specifically by Zani as one of the individuals with whom he had spoken or by Muniz as having been one of "them". At the time the police conducted the protective sweep, Leon was in the bedroom talking on a telephone. Neither did anything connect Leon to the half-smoked marijuana cigarette in the kitchen or the marijuana residue on the floor next to Roman. Accordingly, the police had no basis to arrest Leon for possession of the marijuana they observed in plain view.
As noted, the police lacked even reasonable suspicion to believe that Leon posed a danger justifying a protective frisk. A frisk is permissible when a police officer has reason to believe, based on specific and articulable facts, that the defendant is armed and dangerous. Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314-315 (1992); Commonwealth v. Silva, 366 Mass. 402, 405 (1974). On the facts of this case, the police had no reasonable grounds to believe that Leon was armed or dangerous. As to Leon, the keys seized from his person which were found to fit the door to Unit #3 must be suppressed. Similarly, the items taken from Leon at booking must be suppressed as "fruits of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 486 (1963). Article Fourteen of the Massachusetts Declaration of Rights and the Fourth Amendment of the United States Constitution bar the use of evidence seized through an illegal search and seizure. Commonwealth v. Ford, 394 Mass. 421, 426-427 (1985). As the police lacked probable cause to arrest Leon at the time they did, any evidence seized as a result of that unlawful arrest must be suppressed. This includes the keys seized from him at the scene, as well an any items taken from him during booking. Commonwealth v. Pietrass, 392 Mass. 892, 900-901 (1984).
The Commonwealth's contention that inevitable discovery applies to the items taken from Leon is unavailing. The determination of the inevitability of discovery by lawful means is a demanding test. Commonwealth v. Perrot, 407 Mass. 539, 548 (1990). The nature of the inevitability must be such that discovery by lawful means is "certain as a practical matter," Commonwealth v. O'Connor, 406 Mass. 112, 117 (1989), that is, "virtually certain." Commonwealth v. Perrot, 407 Mass. at 546-48. That the police would have located these items on Leon at some time subsequent to execution of the search warrant is speculative at best. Apart from securing the apartment itself, at the time of his arrest and search, the police had no basis upon which to detain Leon himself pending the obtaining of the search warrant and the search. Compare Commonwealth v. Taylor, 426 Mass. 189, 195 (1997) (detention of defendant pending obtaining a search warrant for his clothing was permissible as police had reason to believe his clothing and sneakers harbored traces of an accelerant). Prior to obtaining the search warrant and finding a large amount of cocaine on the premises, the police possessed neither probable cause nor even reasonable suspicion to believe Leon had committed a crime. Upon the facts found, the Commonwealth has not come close to satisfying its burden of proving that discovery of the evidence found upon Leon was inevitable as a practical matter. Commonwealth v. O'Connor, 406 Mass. at 114. Thus, the argument that discovery of a large amount of cocaine would have provided a basis to arrest and search Leon is unavailing.
ORDER
For the foregoing reasons, this court ORDERS : Defendant Alexis Burgos' motions to suppress be DENIED ; Defendant Alejandro Moreno's motions to suppress be DENIED ; Defendant Amado Roman's motions to suppress be DENIED ; Defendant Thomas Toribio's motions to suppress be DENIED ; and Defendant Camilo Leon's motion to suppress be DENIED as to the search pursuant to search warrant and ALLOWED as to the searches of his person and the fruits thereof.
_________________________ Joseph A. Grasso, Jr., Justice of the Superior Court.
DATED: July 14, 2000