Opinion
No. 16–P–30.
12-16-2016
COMMONWEALTH v. Steven MARCELIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a Superior Court jury convicted the defendant of trafficking in a Class B substance over 100 grams, he pleaded guilty to the related charge of conspiring to violate drug laws. Both convictions were based on a bag of oxycodone pills found by police in the defendant's possession after the car in which he was riding was stopped. On appeal, the defendant argues that his motion to suppress the pills should have been allowed. We affirm.
Background. The factual recitations that follow are drawn from the motion judge's largely uncontested findings, supplemented by the testimony of witnesses that the judge explicitly or implicitly credited. Commonwealth v. Jones–Pannell, 472 Mass. 429, 436 (2015). To the extent that the defendant claims the findings were clearly erroneous, the relevant points of contention are highlighted.
In October of 2011, United States Postal Service Inspector Michael McCarren noticed a package that he believed might contain illegal narcotics. What aroused his suspicion was the following: the package was mailed from Las Vegas (known as a source city for illegal pills), the identified sender of the package did not appear in the postal service database associated with the return address, and, similarly, the addressee of the package (Dominique Reyes) did not appear in the same database as being associated with the address to which the package was being sent (10 Prospect Avenue in Woburn). McCarren contacted the Woburn police department, which confirmed that it also had no record of a Dominique Reyes living at 10 Prospect Avenue in its own internal database. McCarren contacted the Woburn police again on November 2, 2011, when he learned that another such package was due for delivery at the same address by about noon that day.
A police witness acknowledged that this, by itself, was of limited import, since the police database included only those who, through traffic accidents, prior calls to the residence, and the like, previously had come to the police's attention.
He also relayed that his review of postal service records revealed that four packages had been sent to the same address over the previous two months, although the record reveals little detail about these.
Working with McCarren and members of the South Middlesex Regional Drug Task Force, the Woburn police set up a controlled delivery of the package. At about 10:15 A.M. that day, five members of the Woburn and Stoneham police departments using unmarked cars set up surveillance of 10 Prospect Avenue from different locations. They spotted two men, including the defendant, in a parked car who appeared to be conducting their own surveillance of the address. For example, when, by coincidence, another postal carrier showed up to deliver mail, the defendant got out of the car "to observe what the postal carrier was doing." The two men also "continuously were looking around as if conducting counter-surveillance."
These observations were made by Officer Piazza, not—as the judge stated—by Captain Rufo. However, the fact that the judge attributed the observations to the wrong witness is of no import.
Once McCarren, posing as a postal carrier, delivered the package to the porch of 10 Prospect Avenue, the car with the two men backed up so that it was directly in front of that address, stayed there for a few minutes, drove away for a minute or two (during which it made a loop), and returned to the same location. At this point, the police saw a woman clothed in pajama bottoms and a coat standing in the front yard at 10 Prospect Avenue. They then observed the woman approach the men in the car, appear to converse with them, go up to the porch, open the box, and hold its contents up for the men in the car to observe. She then put the contents back in the box, left the box on the porch, and went inside the building. The defendant then retrieved the box from the porch, got back in the car, and the men drove off.
Shortly thereafter, the police stopped the car. Woburn police Captain Robert Rufo was the first to approach it. He went first to the driver's side and then, after he was joined by another officer, he went to the passenger's side. There, looking down through the windshield of the car, he observed a clear plastic bag of blue pills lying between the defendant's feet. He recognized the pills as thirty milligram oxycodone pills, known by the street term "blueberries." It is now undisputed that Captain Rufo gave both occupants in the car their Miranda warnings at the scene of the stop . The precise timing of this remains in dispute, and we reserve it for later discussion.
In his affidavit submitted in support of his motion to suppress, the defendant averred that he had not been given his Miranda rights at the scene. He has abandoned this claim, and now seeks to make use of the giving of such rights.
Discussion. To stop the car in which the defendant was riding, the police needed reasonable suspicion that its occupants were engaged in criminal activity. Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996). We agree with the motion judge that even though the police did not know the contents of the package when they stopped the car, the combination of what they learned from the postal inspector and the highly suspicious behavior that the defendant exhibited with respect to the package's delivery rose to the level of reasonable suspicion. See, e.g., Commonwealth v.. St. George, 89 Mass.App.Ct. 764, 767–768 (2016) (reasonable suspicion developed after experienced officers saw defendant pick up associate who had just made a telephone call, take "short and suspicious drive around the block," and drop off associate, who was now holding a bag, about 100 yards away from pick-up location in high crime area). Simply put, even if the postal inspector's suspicions that the package contained illegal pills could be characterized as a mere hunch, that hunch ripened into reasonable suspicion when the police observed the defendant's behavior during the controlled delivery.
The defendant attempts to make much of the fact that the woman in the pajama bottoms likely lived at 10 Prospect Avenue, and it is possible that she was in fact Dominique Reyes (to whom the package was addressed). Although these points cut in the defendant's favor, in our view they do not materially reduce the degree of concern to a level below the reasonable suspicion threshold.
The motion judge credited Captain Rufo's testimony that he observed the pills in plain view while he was outside the car. Although the defendant expresses skepticism about Rufo's testimony on this point, he has not argued, much less shown, that the judge's finding is clearly erroneous. Instead, the defendant argues that he already was under arrest by the time Captain Rufo observed the pills, and that when the police placed him under arrest, they lacked probable cause to do so. Central to this argument is his claim that the testimony unequivocally demonstrated that Captain Rufo administered the Miranda warnings before he discovered the pills, and that the judge's contrary finding on that point is clearly erroneous.
The defendant does argue that there is clear error in the judge's finding that Captain Rufo recognized the pills as thirty milligram oxycodone pills "from their distinctive color, shape and size." Although it is true that in discussing his identification of the pills, Rufo highlighted the pills' color, and did not specifically refer to their "shape and size," it is a reasonable inference that Rufo relied in part on those factors given his reference to the street name "blueberries," and his claimed ability to recognize the dosage of the pills. In any event, once Rufo spotted the large bag of blue pills on the floor, there was certainly an adequate basis for him to make a closer examination of the pills.
We agree with the defendant that the judge's finding on the timing of the Miranda warnings is clearly erroneous. We also agree that, as a consequence, the defendant's argument that he effectively had been placed under arrest before Captain Rufo spotted the pills may have some force. Nevertheless, even if we assume arguendo that the defendant was arrested—and not merely stopped—before the pills were discovered, this ultimately would not aid the defendant's cause.
On direct examination, Rufo testified that "[w]hen [he] approached the car, [he] immediately read [the occupants] the Miranda warnings." Nevertheless, the judge found that Rufo read such warnings after he went over to the passenger's side and observed the pills lying at the defendant's feet. The Commonwealth suggests that this finding is not clearly erroneous on the following theory: Captain Rufo's reference to "[w]hen he approached the car" can be understood as referring to his initially approaching the car, or alternatively as his later approaching the passenger's side of the car. The problem with this argument is that it ignores testimony that Captain Rufo gave on cross-examination in which he made it clear that he gave the Miranda warnings when he first approached the car. That testimony was as follows:
Q: "Okay. And after you pulled the vehicle over, you testified that you went to the driver's side initially?"
A: "Yes."
Q: "And at that point you read him his Miranda?" A: "I read both passages of Miranda."
Q: "And then the other officer arrives, and that's when you went around to the other side of the car?"
A: "Yes."
The giving of Miranda warnings may be a factor to be considered in determining whether one has been arrested. See Commonwealth v. Griffin, 79 Mass.App.Ct. 124, 128 (2011) (stop was converted to arrest when suspect was handcuffed, Mirandized, and transported to police station). However, especially given that the early administration of Miranda warnings is to be encouraged, see Commonwealth v. Raymond, 424 Mass. 382, 393 n. 9 (1997), the giving of such warnings is not determinative on whether the detained person has been arrested.
This is not a case where the evidence at issue was discovered through a search done incident to arrest, in which case there would need to be a lawful arrest supported by probable cause. See Commonwealth v. Bottari, 395 Mass. 777, 783 (1985). Instead, Captain Rufo found the pills in plain view during the traffic stop. The plain view doctrine permits an inherently incriminating object discovered without a warrant to be admitted when it is spotted in plain view by an officer who is "lawfully in a position to view the object." Commonwealth v. Sliech–Brodeur, 457 Mass. 300, 306 (2010). Here, Captain Rufo had reasonable suspicion to stop the car, and thus legally was in a position to see the pills through the windshield of the vehicle after approaching it. Regardless of whether the defendant in effect was arrested before the discovery of the pills, that discovery cannot reasonably be said to have been the fruit of an improper arrest. Therefore, the defendant's argument that the pills had to be suppressed unless there was probable cause to arrest the defendant at the time the Miranda warnings were given fails as a matter of law.
In sum, we agree with the motion judge that, under the totality of the circumstances, the police had reasonable suspicion to stop the car to conduct a threshold inquiry and that during that inquiry they observed the pills in plain view. Under the facts of this case, whether the defendant in effect had been arrested in the interim is ultimately beside the point.
In explaining why they stopped the car, the police focused on their belief that the defendant was engaged in the trafficking of narcotics. In her ruling, the motion judge offered a second potential theory under which the stopping of the car might have been justified: reasonable suspicion to believe that the defendant was involved in the theft of a package from the porch. Although the defendant is correct that the police never sought to explain their actions on this basis, the presence or absence of such grounds is to be viewed objectively. Commonwealth v. Avellar, 70 Mass.App.Ct. 608, 613 (2007) ("[O]fficers' motive for stopping the vehicle is irrelevant"). Because we conclude that the police in any event had reasonable suspicion to stop the car based on the theory that the police put forward, we need not address the viability of the alternative theory that the judge posited.
--------
Judgments affirmed.