Opinion
16-P-1033
08-21-2017
COMMONWEALTH v. Jovanni MARRERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial by a Superior Court judge, the defendant, Jovanni Marrero, was convicted of possession of a class A substance (heroin) with intent to distribute and possession of a class B substance (oxycodone). On appeal, the defendant argues that the motion judge erred in denying his motion to suppress drugs seized from his person and in the vehicle in which he was a passenger. We affirm.
1. Background. We adopt the subsidiary findings of fact of the motion judge, which we accept absent clear error, reserving for independent review his ultimate findings and his conclusions of law. See Commonwealth v. Anderson, 461 Mass. 616, 619 (2012) ; Commonwealth v. Charley, 91 Mass. App. Ct. 223, 224 (2017). In September of 2014, the Springfield police department received a tip from a confidential informant (CI) that the CI had overheard a conversation in which Omar Marrero (Omar), the defendant's brother, made plans to sell a large quantity of heroin between 5:00 P.M. and 6:00 P.M. at the Eastfield Mall in Springfield (mall). This CI had given the police information in the past that had resulted in seizures of controlled substances, arrests, and convictions. Acting on the tip, the police confirmed the identity of Omar by showing a Registry of Motor Vehicles (RMV) photograph to the CI, and distributed that photograph to police officers dispatched to the mall.
At approximately 5:30 P.M. , officers observed Omar arrive at the mall in a vehicle with a passenger later identified as the defendant. Omar exited the vehicle and entered the mall. Shortly thereafter, Omar exited the mall from the opposite side of the building, whereupon officers detained him and searched him to no avail for narcotics.
Meanwhile, the defendant, who had remained in the vehicle, exited the vehicle, walked around the vehicle, talked on his cellular telephone, opened the vehicle's trunk, looked around the area, and eventually returned to sitting in the front passenger seat. After Omar was detained, officers were ordered to secure the vehicle and the defendant. As the officers approached the vehicle, one officer observed the defendant quickly reaching under the front passenger seat. An officer removed the defendant from the vehicle and searched under the front passenger seat where he found a bag that contained approximately 970 bags of heroin. At the same time, another officer searched the defendant and found oxycodone and additional heroin on his person.
2. Motion to suppress. The defendant argues that the motion judged erred in denying his motion to suppress because the police lacked probable cause to search the vehicle and to arrest and search his person. We disagree.
"Where an unnamed informant's tip is relied on by the police as supplying probable cause to arrest and to search, art. 14 [of the Massachusetts Declaration of Rights] requires that the information satisfy the two-pronged standard set forth in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969)." Commonwealth v. Gonzalez, 90 Mass. App. Ct. 100, 103 (2016), quoting from Commonwealth v. Welch, 420 Mass. 646, 650 (1995). The Commonwealth "must (1) demonstrate the basis of the informant's information and (2) put forward sufficient indicia of veracity to justify probable cause." Gonzalez, 90 Mass. App. Ct. at 103, quoting from Commonwealth v. Crawford, 410 Mass. 75, 78 (1991).
Here, the facts found by the motion judge establish that the police had probable cause to search the vehicle and, upon finding the drugs under the front passenger seat, to arrest the defendant. The information the police obtained from the CI and corroborated through their observations at the mall satisfied both prongs (basis of knowledge and veracity) of the Aguilar–Spinelli test. The CI informed the police that he overheard a conversation that Omar was planning to conduct a drug transaction between 5:00 P.M. and 6:00 P.M. at the mall. The CI provided Omar's name and his anticipated location during a specific time frame and identified Omar from an RMV photograph. That information was confirmed by police observation of Omar and the defendant arriving at the mall at 5:30 P.M. , Omar's quick trip through the mall, the defendant's suspicious behavior while waiting in the vehicle, and the defendant's furtive movement when the police approached the vehicle. The basis of knowledge prong was satisfied. See Gonzalez, 90 Mass. App. Ct. at 104.
The defendant contends that the motion judge erred in concluding that Omar "entered and exited the mall without stopping as if looking for someone." The motion judge, however, is permitted to make reasonable inferences from the evidence. See Commonwealth v. Cast, 407 Mass. 891, 896, 897 (1990) ; Commonwealth v. Tapia, 463 Mass. 721, 725, 727 (2012). It was reasonable to infer that Omar's brief time spent in the mall, in conjunction with his entering at one location and exiting at another, was for a purpose other than shopping. In addition, it was permissible for the judge to consider that inference in unison with the evidence that confirmed the CI's tip.
Furthermore, the Commonwealth introduced sufficient evidence of the CI's reliability to satisfy the veracity prong. The CI had provided reliable and accurate information in the past leading to arrests and seizures of narcotics. See Gonzalez, 90 Mass. App. Ct. at 104, quoting from Crawford, 410 Mass. at 79 (CI's credibility may be "established by showing that information provided in the past by this informant has proved to be accurate"). Moreover, the CI's veracity was confirmed by independent police corroboration through observations made at the mall. See Commonwealth v. Mendes, 463 Mass. 353, 365-366 (2012).
Finally, the defendant argues that the motion judge erred in concluding that the search of his person was a patfrisk instead of a search incident to a lawful arrest. He asserts that the police lacked probable cause to justify a search incident to a lawful arrest and contends that, if the police had only reasonable suspicion for a protective search for weapons on his person, the discovery of the drugs must be suppressed.
As discussed above, when the police approached the defendant's vehicle they had already established probable cause, that is, knowledge of "facts and circumstances ... to warrant a person of reasonable caution in believing" that the vehicle had drugs in it. Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 168 (2017), quoting from Commonwealth v. Williams, 422 Mass. 111, 119 n.11 (1996). As a result, the police were justified in searching the vehicle. See Commonwealth v. Eggleston, 453 Mass. 554, 554 (2009), quoting from Commonwealth v. Motta, 424 Mass. 117, 124 (1997) ("[W]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 [of the Massachusetts Declaration of Rights] beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle"). As the defendant's furtive movement was observed as the police approached the vehicle, they were justified in removing the defendant from the vehicle and conducting a patfrisk of his person. See Commonwealth v. Johnson, 454 Mass. 159, 162-164 (2009). Once the drugs were discovered under the passenger seat, there was probable cause to arrest and search the defendant. There was no error in denying the motion to suppress.
Although the evidence from the suppression hearing is ambiguous as to when precisely the drugs were seized from the defendant (before or after the drugs were discovered under the front passenger seat), it ultimately is of no consequence given the facts of this case. Once the police discovered the drugs in the vehicle, they had probable cause to arrest and search the defendant, which inevitably would have led to the discovery of the drugs on his person. See Commonwealth v. Ubilez, 88 Mass. App. Ct. 814, 817-819 (2016). Accordingly, we need not determine whether there was probable cause to arrest or search the defendant prior to the discovery of the drugs in the vehicle.
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Judgment affirmed.