Opinion
No. 14–P–766.
10-11-2016
COMMONWEALTH v. Justin DEMATOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a consolidated appeal from the judgments on the defendant's convictions of trafficking in oxycodone (two counts) and the order denying his motion for a new trial. In his direct appeal, the defendant argues that the suppression judge erred in denying his motion to suppress physical evidence primarily consisting of oxycodone pills seized by the police from his person and his vehicle, and text messages that he sent to a confidential informant. He also contends the suppression judge erred in not suppressing a statement he made to police after he was detained. In his motion for a new trial (and on appeal), the defendant again claims that the text messages should have been suppressed but on grounds different than those he advanced in support of his pretrial motion to suppress. We affirm.
The defendant raises additional arguments, for the first time, in his reply brief that we are not obligated to consider. See Commonwealth v. Stewart, 460 Mass. 817, 831 (2011). Nevertheless, we have reviewed them and determined them to be without merit.
1. The motions to suppress. We summarize the facts as found by the suppression judge after an evidentiary hearing, all of which are amply supported by the record. On the morning of November 1, 2010, Sergeant Detective Scott Allen of the East Bridgewater police department and other members of a law enforcement regional task force arrested an individual for distributing oxycodone. The individual agreed to cooperate and identified the defendant as his supplier. The informant described the defendant's physical appearance and told the officers that he drove a Toyota Camry and used the Camry to make deliveries of oxycodone. The informant also identified a photograph of the defendant, which the police obtained from the Registry of Motor Vehicles. In addition, the police learned that a Toyota Camry was registered to a business located at the defendant's address.
The defendant filed two motions to suppress which were adjudicated together.
Our use of masculine pronouns should not be considered any indication of the informant's gender.
Regarding the defendant's drug distribution scheme, the informant stated that he purchased oxycodone pills (200 pills at a time) from the defendant on forty to fifty occasions over the previous three to four months. At the time of his arrest, the informant had $4,700 on his person, most of which he owed to the defendant for pills he had previously purchased. The informant further reported that he had plans to meet the defendant to pay him and to buy additional pills the following morning in Boston. The informant then showed the police recent text messages that he had received on his cellular telephone (cell phone) from the defendant confirming those arrangements.
Under the supervision of Sergeant Allen, the informant attempted to change the location of the meeting to the informant's home in Bridgewater. He was unsuccessful and ultimately agreed to meet the defendant that day at the South Bay Mall (mall) in Boston. This information was immediately communicated to other law enforcement agents who went to the mall to wait for the defendant's arrival.
Before long, the officers observed a Toyota Camry driven by a woman, later identified as Molly Howard, enter the parking lot. The defendant was in the front passenger seat. The couple entered the Olive Garden restaurant. One of the officers, Trooper Scott Holland, followed the couple into the restaurant, confirmed where they were seated, and radioed this information to the other officers. Thereafter, it became clear that the defendant intended for the informant to meet him inside the restaurant. Trooper Holland and two other officers then entered the restaurant to escort the defendant outside.
Trooper Holland was the first officer to approach the defendant and Howard. Trooper Holland identified himself and asked the defendant to come outside. The defendant complied. As they were walking out of the restaurant, Trooper Holland placed his hand on the defendant's arm and said, “Don't do anything crazy or this will get ugly.” The other two officers walked on either side of the defendant.
Once outside, Trooper Holland asked the defendant whether he had anything on him that he should not have. The defendant responded, “Yeah,” and grabbed his pocket. Trooper Holland reached into the pocket and retrieved a sunglasses case that contained suspected oxycodone pills. The defendant was then arrested and advised of his Miranda rights.
The police then spoke to Howard, who eventually gave them the keys to the Camry and told the officers that she had seen a sunglasses case containing oxycodone in the vehicle earlier that day. The officers searched the vehicle and found the sunglasses case and the defendant's operator's license in the center console. In the trunk of the car, the officers found a black bag containing marijuana, more pills, and $10,000. A more thorough inventory search was conducted after the vehicle was towed to the State police barracks during which three cell phones and a laptop computer were seized. The police later obtained a search warrant to search the cell phones found in the car and two additional cell phones taken from the defendant during the booking process.
On the basis of these facts, the suppression judge concluded that the defendant was not in custody at the time he was questioned by Trooper Holland while walking outside of the restaurant. Consequently, she ruled that Miranda warnings were not required and the defendant's affirmative response to the trooper's question about whether he had anything was deemed admissible. The judge also concluded that the police had probable cause to arrest (and to search) the defendant for possession of oxycodone when they approached him in the restaurant based on the detailed information provided by the informant and the officers' corroboration of that information. She further ruled that the search of the defendant's vehicle also was supported by probable cause and, in addition, was justified as a lawful inventory search. Lastly, she concluded that the defendant had no expectation of privacy in the text messages he sent to the informant.
“In reviewing a denial of 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. Washington, 449 Mass. 476, 480 (2007).
The defendant first argues that his motions to suppress should have been allowed because the police lacked probable cause to arrest him when they entered the Olive Garden, rendering the subsequent warrantless seizures of oxycodone from his person and vehicle unlawful. We disagree.
Here, the information the police obtained and corroborated satisfied both prongs (basis of knowledge and veracity) of the Aguilar–Spinelli test. See Aguilar v. Texas, 378 U.S. 108 (1964) ; Spinelli v. United States, 393 U.S. 410 (1969). As the suppression judge found, the informant had firsthand knowledge of the details he provided which included an accurate description of the defendant and his vehicle. Additionally, the informant was in direct communication with the defendant. When arrangements were made to meet the defendant for a delivery of oxycodone, the “events unfolded precisely as predicted by the informant,” confirming his basis of knowledge. Commonwealth v. Va Meng Joe, 425 Mass. 99, 104 (1997).
There was also sufficient indication of the informant's reliability to meet the veracity prong of the test. Although there was no evidence of previous circumstances establishing reliability, the informant was not an anonymous informant and, as a result, the information he provided is accorded more weight. See Commonwealth v. Alfonso A., 438 Mass. 372, 375–376 (2003). Moreover, as we have noted, the informant was in contact with the defendant and police verified this contact by reading text messages and supervising communication between the informant and the defendant. See Commonwealth v. Zuluaga, 43 Mass.App.Ct. 629, 635–636 (1997). The informant's willingness to personally arrange a drug purchase provided another reason to believe him. Finally, the informant's credibility was bolstered by the fact that he provided information against his penal interest. See Commonwealth v. Alvarez, 422 Mass. 198, 204–205 (1996). Thus, there was no error in the judge's conclusion that the police had sufficient knowledge of suspected criminal behavior to support a finding of probable cause. See Commonwealth v. Cruz, 53 Mass.App.Ct. 24, 30 (2001).
That the text messages did not specifically mention illegal substances is of no consequence where, as here, the context of the communications supported the inference that a drug transaction was being planned.
The defendant next argues that “a reasonable person in [his] position would have believed that he was in custody” when the police escorted him out of the restaurant. Commonwealth v. Hilton, 443 Mass. 597, 609 (2005). Therefore, he contends, Trooper Holland's interrogation constituted a violation of his Miranda rights requiring suppression of the oxycodone found on his person and subsequently in his vehicle.
We need not pause long on this argument because even if we were to agree with the defendant, it was inevitable that the police would find and seize the oxycodone in the defendant's pocket during a search incident to an arrest. See Commonwealth v. Phifer, 463 Mass. 790, 793–794 (2012). Regarding the items found in the defendant's vehicle, not only did the police have probable cause to search the vehicle based on information from the informant and the defendant's companion but, as the judge properly found, those items would have been discovered during the subsequent inventory search. Furthermore, assuming for purposes of our discussion that the defendant's affirmative response, “Yeah,” and the pointing to his pocket erroneously were admitted in evidence, the defendant is not entitled to reversal because the error did not create a substantial risk of a miscarriage of justice.
Because the defendant did not preserve this issue by objecting to Trooper Holland's testimony at trial, our review is limited to whether there is error and, if so, whether it created a substantial risk of a miscarriage of justice, which means reversal is warranted only “if the evidence and the case as a whole ... [leaves] us with a serious doubt that the [defendant's] guilt [has] been fairly adjudicated [citations omitted]” Commonwealth v. Vasquez, 456 Mass. 350, 356 (2010) (quotation omitted).
The defendant's final claim, that the suppression judge erroneously concluded that he had no expectation of privacy in the text messages that were received by the informant, has been considered and rejected by our case law. See e.g., Commonwealth v. Eason, 427 Mass. 595, 600 (1998).
2. The motion for a new trial. Approximately one year after the defendant was convicted, in the case of Riley v. California, 134 S.Ct. 2473 (2014), the United States Supreme Court considered the question whether the Fourth Amendment to the United States Constitution imposed limitations on the warrantless search of a cell phone incident to a lawful arrest. The Court concluded: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Id. at 2495. Relying on Riley, the defendant filed a motion for a new trial claiming that the police searched his cell phone without probable cause in violation of his Fourth Amendment rights. The motion judge, who had been the trial judge, denied the motion without a hearing.
The decision to deny a motion for a new trial, as well as the decision to decide the motion without a hearing, is within the sound discretion of the motion judge, especially where, as here, the motion judge also was the trial judge. See Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996). There was no abuse of discretion. In a well-reasoned memorandum of decision, the judge observed, correctly, that Riley does not apply in the circumstances of this case for the simple reason that before searching the defendant's cell phone, the police did, in fact, obtain a search warrant.