Opinion
14-P-908
06-19-2015
COMMONWEALTH v. IRVIN OLIVERO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals, pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), from the allowance of the defendant's motion to suppress drug evidence. The drugs at issue were obtained after police officers executed a search warrant that authorized placement of a global positioning system (GPS) tracking device on the defendant's car. We affirm.
Background. The motion judge found the following facts. The defendant was the target of an investigation of the Federal Bureau of Investigation Southeastern Massachusetts Gang Task Force. Based on the information obtained during the investigation and on information obtained from two confidential informants, officers applied for, and were issued, a search warrant to place a GPS tracking device on the defendant's car. As a result of information obtained from the GPS device, officers tracked the defendant to an address in New Bedford and continued their surveillance. When officers arrived at the scene, they saw the defendant emerge from a residence. As the officers approached the defendant from two directions, he started to run, removed a package of white powder from his waistband so that it was visible to the police, and subsequently discarded it. The defendant was arrested and indicted for trafficking in cocaine.
The defendant filed two motions to suppress the evidence seized, arguing that the search warrant for the GPS device lacked probable cause, and that the seizure of the drugs was therefore fruit of the illegal seizure of the defendant's car. He asserted, as well, that officers lacked probable cause to stop him even if the search warrant had been proper. The motion judge heard both motions on the same day and later, in a written memorandum, suppressed the cocaine evidence, finding that the search warrant for the GPS device lacked probable cause and that the cocaine seized was the fruit of that illegal search. The Commonwealth filed an application to proceed with an interlocutory appeal, and this appeal ensued.
Discussion. "In reviewing a ruling on a motion to suppress, we accept the [motion] judge's . . . findings of fact absent clear error," but independently review the application of the law to those facts. Commonwealth v. Kolodziej, 69 Mass. App. Ct. 199, 201-202 (2007), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). The Commonwealth concedes that the search warrant for the GPS device lacked probable cause but argues on appeal, as it did in the trial court, that the defendant's intervening and independent acts removed the taint of any illegality of the search warrant.
"To determine 'whether the connection between the evidence and the improper conduct has become so attenuated as to dissipate the taint, the facts of each case must be examined in light of three factors: the temporal proximity of the arrest to the obtaining of the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the misconduct.'" Commonwealth v. Manning, 44 Mass. App. Ct. 695, 698 (1998), quoting from Commonwealth v. Fredette, 396 Mass. 455, 460 1985). See Brown v. Illinois, 42 U.S. 590, 603-604 (1975).
The motion judge concluded that the seizure occurred at the time officers placed the GPS device on the defendant's vehicle See Commonwealth v. Connolly, 454 Mass. 808, 817 (2009). We consider the time relevant to the attenuation analysis to have commenced when the officers received the GPS signal and determined the defendant's location on the evening of the arrest.
The Commonwealth contends that the defendant's flight and disposal of the cocaine were sufficient to dissipate the taint of the illegality of the seizure. The judge found that the defendant fled from the police and displayed the cocaine only after the police had tracked the defendant to his location using the GPS device, made their presence known, and "converged" on the defendant. "[A]ttempted disposal of evidence [does not] constitute an independent, intervening act sufficient to justify a subsequent arrest where the disposal is in direct and immediate response to the illegal police action." Commonwealth v. Borges, 395 Mass. 788, 796 (1985). Under the circumstances of this case, demonstrating possession of cocaine cannot be considered an intervening act; this was not a "new crime" but rather the same crime for which the officers began investigating the defendant. Compare Commonwealth v. Mock, 54 Mass. App. Ct. 276, 284 (2002) (The defendant, who could have "dropped [contraband] and continued running" without committing an intervening act, instead engaged in an unprovoked attack on the pursuing officer).
This description, used by one of the officers who testified to the circumstances of the arrest at the hearing on the defendant's motion to suppress, was adopted by the judge in his findings.
The purpose of the search warrant was to provide evidence of the defendant's drug dealing activities. The officers were in place solely to observe the defendant's suspected drug-related criminality at a location provided to them by the improperly issued search warrant.
In his thorough and well-reasoned memorandum of decision, the motion judge concluded correctly that the actions of the defendant, namely fleeing and discarding illegal drugs, do not support the Commonwealth's claim of attenuation. As the motion judge made plain with reference to the cocaine, "[t]he police obtained what they were seeking through the unlawful GPS tracking."
Order allowing motion to suppress affirmed.
By the Court (Cypher, Vuono & Grainger, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 19, 2015.