Opinion
No. 06-861, 862.
June 6, 2007.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS
INTRODUCTION
The defendants are charged with narcotics violations, based on events on September 7, 2006, in Weymouth and Braintree. Before the Court are both defendants' motions to suppress evidence seized as a result of a series of warrantless searches. Based on the following findings and rulings, the motions will be denied.
FINDINGS OF FACT
From the credible evidence presented at the hearing, the Court finds the following facts. Beginning in approximately June of 2006, Braintree Police detectives Brian Cahoon and Jeffrey Jernigan were investigating suspected drug dealing by defendant Daniel Edwards. They learned that Edwards's mother lived at 140A Joseph Fern Court, a townhouse within a Weymouth Housing Authority complex, and that he often stayed with his girlfriend, Katelyn Nadeau, who lived with her father, Peter Nadeau, Peter Nadeau's father, and a cousin, in a single family house at 359 Union Street, Braintree, owned by Peter Nadeau's father. During surveillance that began in June and continued intermittently into September, the detectives observed Edwards operating several vehicles, including a black Mazda, a maroon Honda, and a red Plymouth Breeze. The detectives noted the license plate numbers of each of those vehicles, and determined that each was registered to Edwards. The detectives also at times observed Edwards operating another vehicle using the license plate from the Plymouth. They also at times observed Nadeau getting in and out of the Plymouth at her home on Union Street, and observed her driving the Honda. The Mazda, Honda, and Plymouth were regularly kept in the driveway to the left of 359 Union Street. Peter Nadeau regularly parked his pick-up truck on the street outside the house, and Katelyn's grandfather and cousin regularly parked their vehicles in the driveway to the right of the house.
Five witnesses testified at the hearing, four police detectives and defendant Edwards's girlfriend, Katelyn Nadeau. Based on their demeanor, the consistency among their testimony, and the inherent plausibility of it, I credit generally the testimony of each of the four detectives. As to Nadeau, I credit those portions that are reflected in these findings, but do not credit the bulk of her testimony, for reasons that include her relationship with Edwards and the inherent implausibility of significant aspects of her testimony, particularly her claim to have been shocked and surprised to learn that police suspected Edwards of selling drugs.
In early September 2006, the Braintree detectives alerted Weymouth detectives to their investigation, and enlisted their participation in surveillance. On September 7, 2006, beginning in the late afternoon, detectives from both departments conducted surveillance in coordination, with each regularly communicating his observations to all the other participants by radio. All of the participating detectives had substantial training and experience in narcotics investigations. All wore plain clothes and drove unmarked vehicles. Weymouth Sergeant Richard Fuller drove a Crown Victoria, likely to be recognizable as a police vehicle; the others all drove undercover cars.
During the late afternoon hours on that date, Detective Cahoon saw Edwards and Katelyn Nadeau move Edwards's three vehicles around in the driveway of 359 Union Street, and move various belongings, including an infant car seat, from the Plymouth to the Honda. At about 7:30 p.m., Edwards left that address in the Mazda. Cahoon followed him to 140A Joseph Fern Court, and saw him park the Mazda, get out, and go into his mother's home at that address. The street is a cul-de-sac, and number 140A is at its end. At about 9:45 p.m., Cahoon saw Edwards leave his mother's home with a young black man whom Cahoon did not then recognize, but who has since been identified as co-defendant Kenton Wright. The two got into the Mazda, Edwards driving and Wright in the front passenger seat. Cahoon followed them to the DB Mart, a convenience store in Weymouth about two or three miles from Joseph Fern Court. Cahoon positioned himself some 200 feet away and observed as the Mazda parked next to a green Pontiac with four occupants. Cahoon saw a man get out of the rear seat of the Pontiac, get into the rear passenger seat of the Mazda, and quickly leave the Mazda, after which both cars left the parking lot, with Cahoon following the Mazda.
Police were aware that Nadeau had recently given birth.
Detective Jernigan had also been following the Mazda on its errand to the DB Mart. He parked his minivan in the store's parking lot, two spaces to the right of where the Mazda parked. From that position he was able to see into the Mazda. After the man from the Pontiac got into the back of the Mazda, he saw Edwards lean between the front seats toward the man in the back, and observed what appeared to be an exchange between the two. He could not see the men's hands or the objects exchanged. Based on his training and experience, he believed that a drug transaction had occurred. Jernigan followed the Pontiac, while Cahoon followed the Mazda.
The Pontiac went to a nearby McDonald's restaurant and parked in its lot. Two men got out, one from the front passenger side and one from the rear, and went into the restaurant. Left in the car were a female driver and a man in the rear. Jernigan and Braintree Detective Sherrick followed the two men into the restaurant, and saw that both went into the mens' room. They followed, and found a room with a single stall. They forced the stall door open and saw the two men assembling a syringe and preparing to put cocaine in it. In response to questions from the detectives, the men reported that they had just bought the cocaine from "Danny" at the DB Mart, that they had bought three bags for $75, and that one of them had fronted the money, while the other had made the transaction. The detectives arrested the two men, arranged for them to be transported to the police station, and then went back to Joseph Fern Court.
Meanwhile, outside the McDonalds', Weymouth Detective Joseph Partsch approached the Pontiac, and saw that the passenger in the rear seat had a book on his lap, on which Partsch saw white powder and a rolled up dollar bill. The man was using a Blockbuster card to form the powder into lines. Partsch opened the car door, identified himself, told the man not to move, and told the female driver to turn off the car. The two obeyed. In response to questions, the driver said that she was just driving the others around and was not involved, while the man in the back said that one of the other men had bought the cocaine from "Danny", having arranged the purchase earlier, and that the driver was not involved. Partsch arrested the passenger, and allowed the driver to leave.
Meanwhile, Cahoon, who had followed the Mazda from the DB Mart, saw it drive back toward Joseph Fern Court, making a brief stop around the corner on Lake Street, where Wright got out. The Mazda then drove down Joseph Fern Court and parked, and Edwards got out and went into his mother's home. Cahoon, after seeing Edwards go into the house, drove back to Lake Street, where he saw Wright — whose identity he still did not know — talking with a group of others on Lake Street. Cahoon watched as Wright went onto a porch of a house on Memorial Drive and argued with a woman there. The woman threw trash bags of clothing at Wright. As Cahoon watched Wright, Weymouth Sergeant Richard Fuller arrived in the area, parked his Crown Victoria out of sight, and got into Cahoon's car. Cahoon pointed out Wright and told Fuller that he was the person who had been the passenger in the Mazda with Edwards. Fuller, who was acquainted with Wright through Wright's prior contacts with Weymouth police and through his general familiarity with residents of the neighborhood, identified him as Kenton Wright.
Cahoon and Fuller watched as Wright put the trash bags that had been thrown at him down on the lawn of the house where he had argued with the woman, and picked up a red shoe box. Wright then walked down Joseph Fern Court carrying the red shoe box. Jernigan, who was situated on Joseph Fern Court at that time, saw Wright get into the maroon Honda, which at that point was parked there next to the black Mazda. The trunk popped open, and Wright got out of the car, put the red shoe box in the trunk, and then closed the trunk. Wright then got into the black Mazda and began to drive out of Joseph Fern Court.
Fuller was aware from previous interactions with Wright that Wright's driver's license was revoked. He called into the Weymouth dispatcher to confirm that information, and received prompt confirmation. The detectives followed as Wright drove out of Joseph Fern Court, onto Lake Street, and onto Memorial Drive, and stopped outside the same house where he had earlier argued with a woman and left the trash bags of clothing. The detectives then positioned their vehicles so as to block him in, Cahoon in front, Jernigan to the rear, and Sherrick to the right rear of the Mazda. Fuller and Jernigan approached Wright and told him he was under arrest. As Wright got out of the car, a cigar packed with marijuana — known as a "blunt" — fell from his person onto the ground. The detectives smelled marijuana. Fuller picked up the blunt, hand cuffed Wright, and conducted a brief search of the car. Jernigan conducted a pat-frisk of Wright, finding some $500 in cash and a bag of marijuana on his person. Sherrick searched the Mazda and found a small portable scale on the front passenger seat, and two cans with false bottoms, one on the front passenger seat and one on the floor on the passenger side. Multiple bags of white powder were found in the compartments inside the cans; subsequent testing determined the powder to be some 56 grams of cocaine.
Leaving Wright with other officers, the detectives returned to Joseph Fern Court and went to the defendant's mother's house. They knocked on the side door, and a girl said "come on in." They entered and identified themselves to thirteen year old Courtney Rello, defendant Edwards's sister, who was holding the infant daughter of Edwards and Nadeau. The detectives asked for Edwards; the girl said he was upstairs and "you can go get him." The detectives stood at the bottom of the stairs and called Edwards's name. Edwards responded, "who is it," and then came out of the bathroom door at the top of the stairs. Katelyn Nadeau and Christine Dyer followed him out of the bathroom. The detectives told Edwards that he was under arrest. Edwards tossed something out of his hand; Cahoon went part way up the stairs and found percocet pills on the floor of the stairway.
After the detectives had secured Edwards and turned him over to other officers who had arrived, they interviewed Nadeau and Dyer, giving each Miranda warnings. The detectives were not threatening toward Nadeau, but were stern. Nadeau turned over to police a plastic bag of percocet pills that had been on top of her purse. The detectives told her that if she cooperated with them she would not be arrested that evening, although she might be charged at a later time. They also pointed out to her the possible implications of the situation for her infant; Detective Jernigan said "you cooperate, you keep your baby." Nadeau agreed to cooperate. She did so voluntarily and intelligently, based on her rational evaluation of her own interests.
Nadeau told the detectives that she was aware of Edwards's past drug dealing but thought he had stopped. In response to a question as to what the three had been doing in the bathroom, she said that Christine Dyer was getting percocets for a friend who had been injured. In response to further questions, Nadeau said that she had driven there from Braintree in the maroon Honda, and that Edwards had bought that car for her use. Asked if anything illegal was in the Honda, Nadeau said no, and gave the detectives the keys to the Honda. Cahoon took the keys, went to the unlocked car, popped the trunk open from inside the passenger compartment, and saw the red box. Inside the box, he found stacks of cash wrapped in bands, amounting to some $4,000. A bag of marijuana was found in the front console. Cahoon showed the marijuana and the contents of the box to Nadeau, who denied knowledge of them and expressed anger at Edwards for putting her in the middle of his drug dealing.
Nadeau told the detectives that Edwards and Wright had used an apartment on Middle Street in Weymouth. Leaving the baby with Edwards's mother, who had arrived home, Nadeau led the detectives to that apartment in Detective Jernigan's minivan. A woman who identified herself as the owner of that apartment reported that Edwards and Wright had stayed there off and on, but that she had kicked them out, and the apartment was now vacant. She showed them the empty apartment, where they saw a small safe that appeared to have been pried open. Nadeau said that the safe had been in her house in Braintree. The detectives also found packaging materials in the apartment, but no drugs.
In response to the detectives' request, Nadeau agreed to allow them to conduct a search of her home at 359 Union Street in Braintree, and accompanied them there, where other officers were waiting. The Plymouth Breeze was in the driveway, locked, with no license plate; detectives had observed that the plate containing the vehicle identification number that normally appears visible at the base of the windshield had been removed, so that no vehicle identification number was visible from outside the car. A check of Registry of Motor Vehicles records confirmed that the registration plate that police had seen on that car on other occasions was still active, identified to that car, in Edwards's name.
At the house, the detectives presented a form for Katelyn Nadeau to sign to give consent to search. The form authorized police to conduct "a complete search of the premises and property, including all buildings and vehicles, both inside and outside of the property" and to remove any evidence found. While the police were talking with her there, her father arrived home. In response to the detectives' explanation of their presence, he expressed anger at Edwards's conduct and its effect on his daughter. Police asked him to sign the consent form as well. He asked what would happen if he did not; the detectives responded that they would remove all persons from the house and secure it while awaiting a search warrant. Both father and daughter signed the form at approximately 11:10 p.m. . The detectives then searched the house, particularly Katelyn's bedroom and the basement. They found plastic bags with cut corners, but no drugs.
The detectives then turned their attention to the Plymouth. Katelyn produced a key to the Plymouth from her bedroom. She said she did not drive the Plymouth because it had standard transmission, and also that the Plymouth had been disabled by an oil problem, leading her to move her belongings to the Honda. The detectives used the key to open the trunk, where they found a silver colored box. Inside the box was a quantity of white powder, later determined to be some 106 grams of cocaine, and some four to five thousand dollars in cash. The license plate for the Plymouth was also in the trunk.
I do not credit Nadeau's testimony that Edwards had only one key to the Plymouth, and kept it on the same key ring as his key to the Mazda, so that she could not have provided a key to police. Aside from Nadeau's general lack of credibility, as noted supra, this contention is inconsistent with the sequence of events. The police saw Edwards and Nadeau moving the vehicles in the driveway, and Nadeau removing belongings from the Plymouth, that afternoon; thus either Edwards or Nadeau, or both, must have had a key to the Plymouth. That evening, police saw Edwards driving the Mazda, with Wright as his passenger. They then saw Edwards drop Wright off and go inside his mother's home. Wright then walked to the Mazda and drove it, without further access to Edwards, before police stopped and arrested Wright. Thus, both Edwards and Wright must have had keys to the Mazda. If police took a key ring from the Mazda when they arrested Wright, they would have obtained Wright's key ring, not Edwards's. It would make no sense for Wright to have had the sole key to the Plymouth, which was registered to Edwards, and which Edwards and Nadeau had been in that afternoon, when Wright was not observed to be present.
DISCUSSION
The facts present a series of police actions requiring justification: (1) the stop and arrest of Wright; (2) the search of the Mazda; (3) the arrest of Edwards; (4) the search of the Honda; (5) the search of the Middle Street apartment; (6) the search of the Union Street house; and (7) the search of the Plymouth. In the Court's view, the justification for each of these actions except the last is plainly apparent from the facts. The search of the Plymouth presents a closer question, but the Court concludes that it was lawful as well.
At the time the detectives stopped and arrested Wright, they knew that he was operating the Mazda with a revoked driver's license. That alone was enough to warrant his stop and arrest. The police also had strong reason to suspect that he had acted as a joint venturer with Edwards in the sale of cocaine to the occupants of the Pontiac. That suspicion was obviously the subjective motivation for his stop and arrest. But subjective motivation is of no consequence where probable cause exists, as it did here based on driving with a revoked license. That being the case, the Court has no occasion to determine whether police observations with respect to the drug transaction amounted to probable cause on that basis. See Commonwealth v. Santana, 420 Mass. 205, 208 (1995); Commonwealth v. Moses, 408 Mass. 136, 140 (1990). When Wright got out of the Mazda, he dropped a marijuana blunt, and the detectives smelled marijuana. That gave rise to probable cause to believe that contraband — at least marijuana — would be found in the Mazda, and therefore warranted the search of the Mazda. See Commonwealth v. Motta, 424 Mass. 117, 120 (1997); Commonwealth v. Kitchings, 40 Mass. App. Ct. 591, 596, and n. 8 (1996). The stop and arrest of Wright, and search of the Mazda, were therefore lawful.
By the time of Edwards's arrest, the detectives had observed him make what reasonably appeared to be a drug sale, had confirmed that impression through the statements of the occupants of the Pontiac, and had found a substantial quantity of cocaine in the Mazda, which was registered to him and which he had operated shortly before. That was more than enough for probable cause. See Commonwealth v. Motta, 424 Mass. at 120; Commonwealth v. Cast, 407 Mass. 891, 895 (1990), quoting Commonwealth v. Gullick, 386 Mass. 278, 283 (1982). Although they had no warrant when they knocked on the door of his mother's home, his teenage sister invited them in; her invitation sufficed to authorize their entry. See United States v. Matlock, 415 U.S. 164, 170-171 (1971); Commonwealth v. Maloney, 399 Mass. 785, 787-788 (1987); Commonwealth v. Deeran, 364 Mass. 193, 195-196 (1973); Commonwealth v. Martin, 358 Mass. 282, 287-289 (1970). His arrest was therefore lawful.
Upon the arrest of Edwards, the detectives solicited Katelyn Nadeau's cooperation, pointing out to her that she could thereby avoid her own immediate arrest, along with its potential consequences for her child. As Nadeau herself testified — despite her obvious loyalty to Edwards and interest in not being perceived as having assisted the police against him — the detectives were stern but not threatening. They told her the truth: they had legitimate ground to arrest her, but did not. Their statements pointed out the reasons that cooperation would serve her interests. With that accurate information, she evaluated her interests rationally, and decided to cooperate. That is the essence of voluntariness.
At the detectives' request, Nadeau consented to a search of the Honda. She had authority to do so, based on her control of it; she had driven it that evening, she had the keys, and, according to her statement, which was consistent with the detectives' observations over the course of their surveillance, Edwards had bought it for her use. See Commonwealth v. Martin, 358 Mass. 282, 288-289 n. 3 (1970) (parties having "equal authority over the premises" have equal authority to consent to a search); Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 362 (1999) (any occupant of a home may consent in his own right to a search and the other occupant assumes the risk of a such a search). Since Nadeau did not limit her consent in any way, the detectives were entitled to construe it as encompassing the red shoe box found in the trunk. The search of the Honda, and of the box inside it, were lawful.
The apartment on Middle Street involved no search in the constitutional sense, since nothing in the facts indicates that either of these defendants had any legitimate expectation of privacy in that location, and the defendants are not charged with any possessory offense based on the items found there. See Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 336-337 (individuals who were neither residents nor overnight guests had no cognizable expectation of privacy). In any event, the owner of the building consented to the detectives' entry. No violation of any rights of the defendants occurred with respect to that apartment.
As to the union street house, both Katelyn Nadeau and her father, Peter Nadeau, consented to the search. Their authority to do so is beyond serious question; although neither owned it, both lived there, and had common control of it. See United States v. Matlock, 415 U.S. at 171 n. 7; Commonwealth v. Deeran, 364 Mass. at 195-196; Commonwealth v. Martin, 358 Mass. at 287-289. For the reasons already discussed, the Court has found Katelyn Nadeau's consent voluntary and intelligent. No reason appears to question the voluntariness of her father's consent; nothing suggests any coercion or incapacity. The search of the house was lawful.
I credit Katelyn Nadeau's testimony regarding the police response to her father's inquiry as to the alternative to his consent, because the testimony on this point is entirely plausible, and the response attributed to the detectives is precisely correct. If Peter Nadeau had refused consent to a search of his home, the proper course of action for the police would have been to secure the house, removing its occupants, and to apply for a warrant. The detectives violated no rights by giving him accurate information on this subject. Nor did his weighing of this information undermine the voluntariness of his choice. See Commonwealth v. Hinds, 437 Mass. 54, 56-58 n. 1 (2002); Commonwealth v. Harmond, 376 Mass. 557, 561 (1978); Commonwealth v. Deeran, 364 Mass. 193, 196 (1973).
As to the Plymouth, again Katelyn and her father gave voluntary consent. The difficult question is whether they had authority to do so. Edwards was the registered owner, and Katelyn Nadeau was not a regular driver of it, as she was of the Honda. Nothing indicates that Peter Nadeau had ever driven it. On the other hand, however, Katelyn had the key to it, had been seen getting in and out of it regularly, and had kept her belongings in it as recently as that afternoon, and Edwards kept it in the driveway of the Nadeau family home.
A warrantless search is lawful if it is authorized by consent given by a person with common authority over the place or thing to be searched. See United States v. Matlock, 415 U.S. 164, 171 (1974); Commonwealth v. Wahlstrom, 375 Mass. 115, 117-118 (1978) ("consent may be given by a third person who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected") (emphasis in original) (quotation and citation omitted). Apparent authority may suffice, even in the absence of actual authority. See id. A person may have apparent authority to consent to a search if, based on the facts known to the police at the time of the search, a person of reasonable caution would believe that the consenting party had authority over the premises. See Illinois v. Rodriguez, 497 U.S. 177, 187-189 (1990). Authority to consent rests not on the law of property, but rather on mutual use by persons generally having joint access and control. See United States v. Matlock, 415 U.S. at 171 n. 7; Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 363 (1999) (defendant's girlfriend who lived in apartment with defendant, had key, and kept clothes and effects there could consent to search); Commonwealth v. Ploude, 44 Mass. App. Ct. 137, 141 (1998) (third party who had key and "free reign of the building" exercised sufficient control to consent to search). Here, the observations of the detectives were such as to support a reasonable belief that Katelyn Nadeau had shared access to and control over the Plymouth with Edwards. She and Edwards lived as a couple, and were the parents of a child. She had been seen getting in and out of the Plymouth on multiple occasions, and moving items from it that very afternoon, including equipment for the care of their child. See Commonwealth v. Noonan, 48 Mass. App. Ct. at 363 (girlfriend kept her personal belongings on the premises). She had access to a key, kept in her bedroom. The Plymouth was consistently parked in the driveway of her home, and thus available to her at will. See Id.; Commonwealth v. Ploude, 44 Mass. App. Ct. at 141. The Court therefore concludes that Katelyn Nadeau had at least apparent authority to consent to the search of the Plymouth. That search therefore violated no rights of the defendants.
CONCLUSION AND ORDER
For the reasons stated, the Defendants' Motion to Suppress is DENIED .