Opinion
16-P-974
07-27-2017
COMMONWEALTH v. Francisco GONZALEZ (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Miguel Betances and Francisco Gonzalez, were indicted for trafficking cocaine. This is their interlocutory appeal from a Superior Court judge's order denying their respective motions to suppress evidence. They claim that the judge erred in ruling that: (1) probable cause existed to stop them and search their motor vehicle, and (2) the details of the search warrant affidavit were sufficient to justify the issuance of the warrant to search the warehouse at issue in the case. We affirm.
Background. The following facts are drawn from the motion judge's extensive findings, which the defendants do not challenge as clearly erroneous.
Special Agent Langille is a "highly experienced" investigator from the Department of Homeland Security narcotics division, tasked with, inter alia, investigating narcotics trafficking in Massachusetts. On May 29, 2014, Langille was made aware by Customs and Border Protection in Fort Lauderdale, Florida, that a shipment of produce from the Dominican Republic, destined for Mayas Wholesale at One Broadway in Lawrence, Massachusetts, "care of Miguel Betances," contained an estimated ten to twenty kilograms of cocaine. According to United States customs officials, the packets of cocaine were "wrapped in blue and silver foil paper," and stowed "between the outer and inner cardboard walls of some of the boxes."
Langille works with a team of officers "in conjunction with the DEA [Drug Enforcement Administration], ATF [Bureau of Alcohol, Tobacco, and Firearms], U.S. Marshal Service, and local law enforcement officials."
Langille participated in a controlled delivery of the produce shipment, whereby an undercover officer took possession of the boxes and transported them by truck from Fort Lauderdale to Lawrence. A different officer confirmed with Betances via telephone that the delivery was intended for him, and advised him that the shipment would be arriving on May 31, 2014.
On May 31, 2014, the delivery took place as arranged at approximately 10:30 A.M. Langille and ten to fifteen officers surveilled the delivery. They observed approximately five individuals unload the produce boxes over the course of sixty to ninety minutes. They saw the defendants direct the off-loading and open one or two boxes from each pallet. The undercover officer also reported to Langille that Betances felt the sides of several boxes, which, the judge found, "was significant in that agents knew that wrapped packets of cocaine were concealed within the glued-together cardboard sides of a number of the boxes, and could be felt through resulting bulging of the box wall sides."
During the course of the delivery, the undercover officer gained access to the warehouse and observed two well-dressed Hispanic men seated in an office. Langille also observed the men outside and believed, based on their appearance and conduct, that they were overseeing the cocaine delivery. One to two hours after the truck had been unloaded and the undercover agent had left, officers observed Gonzalez drive the two well-dressed Hispanic men away from the warehouse in a Toyota Highlander. The men did not take any produce boxes with them. That same afternoon, an undercover officer visited the warehouse and observed boxes of produce inside. At some point the officers learned that the warehouse "would be closed the next day, a Sunday."
The officers applied for a search warrant for the warehouse and maintained surveillance of the warehouse "for the remainder of the afternoon and overnight." During this time "they did not observe anyone removing any of the [produce] boxes." The following morning, both defendants returned to the warehouse in the Highlander. They entered the building, remained inside for approximately forty-five minutes to an hour, and loaded several produce boxes into the vehicle. The boxes were consistent in appearance with those delivered to the warehouse on the previous day.
The defendants entered the Highlander and began driving away. The officers stopped the vehicle and arrested them. The officers searched the car and found approximately eight kilograms of cocaine, wrapped in blue and silver foil paper, at the bottom of the produce boxes. Thereafter, the officers executed the search warrant for the warehouse and found an additional three kilograms of cocaine.
Analysis. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of [the judge's] ultimate findings and conclusions of law.' " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
1. Probable cause for stop and search of motor vehicle. The defendants argue that the police did not have probable cause to arrest them, and thus the subsequent search of the Highlander was invalid. We disagree. "Probable cause to arrest exists where the facts and circumstances in the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed." Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 168 (2017), quoting from Commonwealth v. Williams, 422 Mass. 111, 119 n.11 (1996).
Here, Betances was the intended recipient of the produce shipment, laden with cocaine, and he arranged for its delivery. During the delivery, both defendants directed the offloading of the produce boxes and Betances was seen manipulating the sides of the boxes, indicating an awareness of the cocaine. The following morning, the defendants were seen loading the Highlander with several produce boxes consistent with those used to conceal the cocaine. Between the time of the unloading of the boxes and the motor vehicle stop, the officers maintained surveillance and did not observe any boxes removed from the warehouse. The totality of these circumstances provided probable cause to believe that the defendants were involved in drug trafficking and that cocaine would be found in the Highlander. Consequently, the officers lawfully stopped the Highlander, arrested the defendants, and searched the Highlander incident to that arrest. See Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 796 (2011) (search of vehicle incident to defendant's arrest constitutional where officers had probable cause to believe evidence relevant to arresting offense would be contained in vehicle). Alternatively, because there was probable cause to believe that the defendants were engaged in drug trafficking and that contraband related to that crime would be found in the vehicle, the search of the vehicle was justified pursuant to the motor vehicle exception to the warrant requirement. See generally Commonwealth v. Johnson, 461 Mass. 44, 49–50 (2011). The judge properly denied the defendants' motions to suppress.
See note 5, infra.
2. Warehouse search warrant. The defendants argue that the affidavit in support of the warehouse search warrant application was "insufficient" to establish probable cause. They also argue that the warrant was lacking in particularity and stale at the time it was executed.
We conduct a de novo review of the judge's determination that the affidavit demonstrated probable cause. Commonwealth v. Tapia, 463 Mass. 721, 725 (2012).
We agree with the judge, substantially for the reasons delineated in her rulings of law, that the facts contained in the affidavit and the reasonable inferences drawn therefrom supported a finding of probable cause. See Commonwealth v. Dorelas, 473 Mass. 496, 500-501 (2016). According to the affidavit, officers had participated in the controlled delivery of approximately ten to twenty kilograms of cocaine to the warehouse and closely surveilled the warehouse thereafter. Their surveillance supported their conclusion that no cocaine had left the building. We are satisfied that the affidavit provided a "substantial basis" for concluding that cocaine and other evidence connected to drug-related activity would be found at the warehouse. See Commonwealth v. Tapia, 463 Mass. 721, 726 (2012).
Within a few hours of the delivery, a truck arrived and took a portion of the produce shipment for distribution. Officers stopped the truck and verified that the produce boxes did not contain cocaine.
We are not persuaded by the defendants' argument that the search warrant was lacking in particularity because it allowed the officers to search the entire warehouse. Generally, "police need not particularize a warrant application to search a property beyond providing a specific address, in part because it would be unrealistic to expect them to be equipped, beforehand, to identify which specific room, closet, drawer, or container within a home will contain the objects of their search." Dorelas, supra at 501. The permissible scope of such a search "generally extends to the entire area in which the object of the search may be found." Ibid. The officers had probable cause to believe that cocaine would be found inside the warehouse—that the officers did not know exactly where in the warehouse the cocaine would be found is inconsequential.
Likewise, the defendants' argument that the warrant was stale at the time it was executed is unpersuasive. The warrant was applied for on the same day the controlled delivery took place, and executed the following morning. The warehouse was under constant surveillance between the controlled delivery and the search. The observations of the officers in that time gave them reason to believe that cocaine would be inside the warehouse at the time they executed the warrant. Further, the seizing of approximately eight kilograms of cocaine in the Highlander bolstered the officers' belief that more drugs or evidence of drug-related activity would be found inside the warehouse.
For the aforementioned reasons, we conclude that denial of the defendants' motions to suppress was appropriate.
"Other points, relied on by the defendants but not discussed in this [decision], have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Order denying motions to suppress affirmed.