Opinion
Nos. 10-0986, 10-0987, 10-0988.
September 6, 2011.
MEMORANDUM OF DECISION AND ORDER ON MOTIONS TO SUPPRESS
A Norfolk County grand jury returned indictments against the defendants, Nicholas Vacca, Evangelos Nomikos, and Brian Packard charging them, variously, with trafficking in Oxycodone, forgery and falsification of prescriptions to obtain the Oxycodone, and conspiracy to commit these crimes. The defendants have each moved to suppress evidence seized from the car in which they were traveling when it was stopped by the police on July 1, 2009, just prior to their arrest. They also seek to suppress evidence seized upon execution of search warrants for the person of Nomikos and his residence. Additionally, the defendants Packard and Vacca have moved to suppress statements that they made immediately following the vehicle stop and later when they were interviewed at the Dedham Police Station following their arrests. A hearing was convened on August 12, 2011. The Commonwealth presented the testimony of three witnesses: Officer Dana Barrett of the Boston Police Department; Sargent Detective Phillipe Colon of the Boston Police Department; and Detective Robert Walsh of the Dedham Police Department. Six exhibits were admitted in evidence. The parties thereafter each submitted post-hearing memoranda. In consideration of the evidence, exhibits, and memoranda, the motions are DENIED.
FACTS
During the period March 2008 through February 2011, Officer Barrett was assigned to the drug control unit in West Roxbury. Part of his work for this unit involved coordinating investigations of the illegal sale of drugs, including prescription drugs, with police officers from other towns and municipalities, including Dedham, where he worked with Det. Walsh and other Dedham officers.
In the late Winter or early Spring of 2009, Officer Barrett learned from various sources about an individual known as "Lucky" who was selling Oxycodone in West Roxbury and Dedham, as well as other locations. Through a "carded" confidential informant that Officer Barrett referred to as "Doc," who had previously supplied Officer Barrett with information leading to the seizure of drugs and convictions of drug offenders, Officer Barrett was able to identify Lucky as defendant Nomikos. Doc told Officer Barrett that Lucky lived in an apartment above a family business located at 531 High Street in Dedham, and that he sold 30 mg. Oxycodone pills from that location. Doc also told Officer Barrett that Lucky worked at Children's Hospital and provided him with Nomikos' business card which described Nomikos as being a "clinical coordinator" for a physician practice at Children's Hospital. Based on general information that Officer Barrett had concerning the job responsibilities of a clinical coordinator, he believed that Nomikos' job working for a physician group would provide him with access to prescription pads.
A pseudonym that was not intended to identify the gender or any other characteristics of the informant.
Officer Barrett arranged for Doc to make three controlled buys of Oxycodone pills from Nomikos over a six month period — the last was within seventy-two hours of June 26, 2009, the day on which Officer Barrett applied for the search warrants here in issue. Each of the controlled buys occurred pursuant to the standard procedure for such transactions. On each occasion, Doc was searched to confirm that he had neither any money nor contraband on him. He was given money with which to purchase drugs and was observed as he telephoned Lucky to arrange a meeting. Doc was kept under surveillance as he traveled to 531 High Street, which is a dry cleaning business on the first floor and has an apartment upstairs. Doc was observed as he entered the building through a side door, exited a few minutes later, and traveled to a location where he was met by Officer Barrett and other officers who recovered pills from Doc. Doc told the officers that these were pills that he purchased from Lucky; the pills appeared to the officers to be Oxycodone.
On Friday, June 26, 2009, Officer Barrett accompanied by Det. Walsh applied for and obtained search warrants to search Nomikos' person and his residence at 531 High Street. Officer Barrett was responsible for coordinating the Boston and Dedham police officers who would assist in executing the search warrants. Det. Walsh was off the week end following the issuance of the warrants and arrangements were made to execute the warrants on Wednesday, July 1, 2009. On that day, Officer Barrett briefed a group of Boston and Dedham officers assembled to execute the warrants regarding his investigation. Sgt. Det. Colon, of the Boston Police Department, was the senior, supervising officer of the group. Det. Cogavin, of the Boston Police Department, who had previously been a member of the Dedham Police Department and frequently worked with Det. Walsh, was another participant, as was Det. Walsh. Detectives Cogavin and Walsh were assigned to the same vehicle, an unmarked Ford Explorer.
Officer Barrett informed the group that he had information that Nomikos was going to engage in a "script run," i.e., an attempt to acquire Oxycodone with a forged prescription, that evening. Officer Barrett decided that the officers would delay execution of the warrants and wait to see if Nomikos engaged in such a script run. Some time prior to 6:00 PM, the officers set up surveillance of 531 High Street.
At approximately 6:15 PM, Officer Barrett and his partner that evening, Officer John Dineen, were parked about two hundred yards from the parking area adjacent to 531 High Street. They were in plain clothes and driving an unmarked car. As Officer Barrett watched the area with binoculars he observed Nomikos exit the side door and walk several yards to his car, an Oldsmobile four door sedan, accompanied by a woman later identified as Jessica Squires. The two were observed as they drove to a near-by bank and Nomikos walked to an ATM. They then returned to High Street. Nomikos walked normally, without favoring either leg during this excursion.
At 7:00, Nomikos and Squires again exited 531 High Street and walked to the sedan. They were kept under surveillance as they drove to a Rite-Aid pharmacy in Norwood. Nomikos got out of the car and this time hopped to its trunk where he removed a pair of aluminum crutches and used them in a manner suggesting an injured foot or leg to enter the pharmacy. Officer Dineen followed Nomikos into the pharmacy and observed him speaking to the pharmacist and then leaving the store. After Nomikos returned to his car (while using the crutches), Officers Barrett and Dineen spoke to the pharmacist. They explained that they were police officers conducting an investigation. The pharmacist told them that Nomikos had tried to fill a prescription for Oxycodone. His insurance carrier declined to pay for the drugs, and Nomikos had then attempted to pay for them with cash. The pharmacist was, however, suspicious and refused to fill the prescription. Other Officers maintained surveillance of Nomikos and Squires as they returned to 531 High Street.
At 9:40, the Officers observed Nomikos again leaving 531 High Street, this time accompanied by two other white males, later identified as co-defendants Brian Packard and Nicholas Vacca. The three walked without any appearance of leg or foot injury to the sedan and got in: Vacca in the front passenger seat, Packard in the rear, and Nomikos driving. The Officers again maintained surveillance. This time the men drove to a CVS pharmacy in Waltham. When they arrived, Packard got out of the car and retrieved the crutches from the back seat. Once again, using the crutches in a manner suggesting an injured foot or leg, Packard entered the CVS; Officer Barrett followed him. Packard hopped to the pharmacy area, spoke to a pharmacist, waited in the waiting area, and, after five or ten minutes, was handed a prescription drug bag and left the CVS. When he was gone, Officers Barrett and Dineen, approached the pharmacist and explained their mission. The pharmacist told them that she had just filled an Oxycodone prescription for Packard. She gave the Officers a photo-copy of the prescription. It was written on a Children's Hospital prescription slip and signed by a Dr. Sanchez Sampur. Officers Barrett and Dineen communicated the information they learned from the pharmacist to the other officers who were continuing surveillance of the three defendants in the sedan, including Sgt. Det. Colon, Det. Walsh, and Det. Cogavin.
A factual dispute was raised during the hearing concerning when Officer Barrett learned that Dr. Sampur was a member of the practice for which Nomikos worked — was it before or after July 1, 2009. Her name does not appear in the affidavit Officer Barrett submitted in support of the application for the search warrant and the practice was not audited until after the defendants' arrests. Officer Barrett, however, testified that he had learned of her association with the practice before July 1st. Sgt. Det. Colon's testimony provided some corroboration of this. The court, however, does not find it necessary to decide whether Officer Barrett was mistaken about when he learned of Dr. Sampur. Officer Barrett knew that Nomikos worked for a physician group at Children's Hospital prior to July 1st, he understood that Nomikos would have access to Children's Hospital prescription pads through his work, and the Oxycodone prescription was written on a Children's Hospital prescription form. He had observed three controlled buys of Oxycodone from Nomikos before July 1st. Based on his observations to this point, he had probable cause to believe that Nomikos and Packard were engaging in a fraudulent enterprise to acquire Oxycodone, regardless of when he learned that Dr. Sanchez Sampura was a member of the physician group for which Nomikos worked.
The sedan was observed as it stopped briefly at a Walgreen's in Waltham. When Sgt. Det. Colon, who was supervising the detail, learned of the information provided Officers Barrett and Dineen by the CVS pharmacist, he decided that the sedan would be stopped when it returned to Dedham. Det. Walsh placed a called to arrange for a marked Dedham cruiser to wait for the sedan along its expected route of travel. After the sedan had entered Dedham, the cruiser pulled behind it and activated its overhead lights. The unmarked SUV in which Detectives Walsh and Cagovin were driving fell in behind the cruiser. The unmarked SUV in which Sgt. Det. Colon was a passenger was also nearby.
After the cruiser activated its lights, the sedan quickly pulled to the side of the road and stopped. Det. Walsh pulled to the side of the cruiser and stopped. He and Det. Cogavin exited their car. As Det. Walsh was exiting, he saw Vacca, seated in the front passenger seat, lean forward and bend down. These actions were of concern to Det. Walsh, and he and Det. Cagovin immediately removed Vacca from the car holding his arms as they did so. They did not have their firearms drawn. The two detectives walked Vacca away from the car and read him his Miranda warnings. Vacca was compliant with all of the Detectives' commands. Det. Walsh has no memory of questioning Vacca at the scene of the stop or of Vacca's saying anything at that time.
Sgt. Det. Colon was also observing the sedan as it pulled over. Through the rear window of the sedan, he saw the rear passenger, Packard lean forward. Sgt. Det. Colon heard someone yell "movement" as he opened the door of his unmarked vehicle, and he then also called out "movement." Sgt. Det. Colon approached the rear door of the sedan, as Detectives Walsh and Cagovin were opening Vacca's door. Sg. Det. Colon told Packard to step out of the sedan and Packard complied. He controlled Packard's hands and walked him to the rear and away from the car. Sgt. Det. Colon then told Packard that the police were conducting a drug investigation, had a search warrant for Nomikos, had observed the defendants through the night, and believed that they were engaged in a "drug scam." He gave Packard Miranda warnings and asked where the pills were. Packard responded: "in the car." The car was searched. The prescription pill bottle with Packard's name on it was found under the front seat of the car and a bag with some pills in it was found between the front seats. The prescription was for 120 pills. It was later determined that 112 (pills were found in the car. After the pills were found, the defendants were arrested and transported to the Dedham police station for booking.
Another officer removed Nomikos from the car. No evidence was offered that Nomikos received Miranda warnings at the time of his arrest or that he said anything either at the scene of the vehicle stop or later in the police station.
Before booking, both Packard and Vacca were interviewed separately by Detectives Walsh and Cagovin in the police station. Each signed a Miranda warnings form on which he noted that he had received warnings and wished to talk to the police. They also both agreed to have their respective interviews electronically recorded. Packard's electronic recording form was signed on July 2, 2009 at 12:20 AM and Vacca's at 1:10 AM. The Packard interview lasted approximately twelve minutes and the Vacca seventeen minutes. Both of the recordings are audio only and barely audible, particularly the recording of the Vacca interview.
To the extent that the recording of the Packard interview can be understood, it is conversational in tone and Packard appears to be cooperative and forthcoming, even anxious to answer the Detective's questions. In particular, his answers appeared intended to demonstrate his limited involvement with Nomikos. During the latter part of the interview, Packard admits to having an Oxycodone habit of one to two pills a day and to having swallowed one of the pills obtained from the CVS before the sedan was stopped. The court finds that Packard made a knowing, intelligent and voluntary waiver of his Miranda rights and answered his interrogators' questions with a purpose of explaining his limited relationship to Nomikos.
The recording of Vacca's interview is of even poorer quality than the Packard interview and very difficult to follow. However, from what can be followed, it is conversational in tone and Vacca's comments are intended to be exculpatory. As the court interprets Vacca's comments, he denies taking a pill before the sedan was stopped or any involvement in the script run other than as a passenger who wanted to buy Oxycodon — at some point. There is no evidence that Vacca's will was ever overborne by any police conduct, which was quite low key. The court finds that Vacca made a knowing, intelligent and voluntary waiver of his Miranda rights and answered his interrogators' questions voluntarily and in what Vacca intended as an exculpatory manner.
No evidence that Nomikos received Miranda warnings or that he said anything to the police was presented.
DISCUSSION
A. Brian Packard
Packard, like the other defendants, argues that the police unreasonably delayed the execution of the search warrant authorizing the search of Nomikos and his apartment to the evening of July 1, 2009 and therefore the fruits of the search of the sedan must be suppressed. Packard also argues that statements that he made after the allegedly unlawful stop of the sedan were the poisoned fruits of this unlawful stop and subsequent arrest and, in consequence, must also be suppressed. All of the defendants arguments premised on the putative delay in the execution of the warrant to search Nomikos' person are misplaced. In the abstract, a delay in the execution of the warrant to search Nomikos of several days, coupled with a decision to execute it when Nomikos was in his sedan with other individuals not identified in the warrant, by stopping the vehicle on the road with a display of force, might create issues for the court's consideration. However, in this case, the police unquestionably had probable cause to arrest Nomikos and Packard at the time of the stop, based on their observations of the defendants' activities that evening and the previous investigation of Lucky. Therefore, the exit orders issued all passengers and subsequent search of the passenger compartment of the sedan for evidence of the crime prompting the stop did not violate the rights of any of the occupants.
"Probable cause to arrest exists where the facts and circumstances in the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed." Commonwealth v. Williams, 422 Mass. 111, 119 n. 11 (1996). When Sgt. Det. Colon, as supervising officer of the group surveilling Nomikos, decided to stop the sedan, he knew that: Doc had reported that Lucky was selling Oxycodone in Dedham and other locations; Nomikos had been positively identified as Lucky; Nomikos had sold Oxycodone to Doc during three controlled buys; Nomikos had unsuccessfully attempted to purchase Oxycodone in a pharmacy in Norwood earlier in the evening, while feigning an injury to his leg that required him to use crutches; Nomikos, Packard, and Vacca had driven from Dedham to a pharmacy in Waltham; Packard had then entered the pharmacy feigning injury to his leg by employing the same crutches that Nomikos had used to enter the pharmacy in Norwood; Packard had then purchased Oxycodone in the Pharmacy by presenting a prescription written on a Children's Hospital prescription slip; and Nomikos worked for a physician group at Children's Hospital. Those facts were more than adequate to support a reasonable belief that Nomikos, with Packard's assistance, had just engaged in a script run and unlawfully obtained Oxycodone. As probable cause existed to stop and arrest at least Nomikos and Packard (if not Vacca as well) for illegally acquiring and possessing Oxycodone, the police were justified in searching the passenger compartment of the sedan for evidence relevant to the crime for which these individuals were being arrested, i.e., illegal possession of Oxycodone. See Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 796-796 (2011). Moreover, as there was "probable cause to stop, seize and arrest [Nomikos][,] [i]t follows that the police were also warranted in searching [Nomikos'] car, the accomplishment of which included the demand that the passenger[s] exit the vehicle." Commonwealth v. Griffin, 79 Mass. App. Ct. 124, 128 (2011). The police did just that, and their search of the sedan uncovered the open prescription pill bottle under a seat in the car and some pills in a bag between the seats. If there was any reason for concern that the pills might have been lawfully purchased for Packard's use, the location of the pills in the car and the fact that the bottle had been opened and its contents divided would dispel it.
Packard argues that it was possible that he had a legitimate prescription to purchase Oxycodone. That was a possibility, but the objective evidence made it far more likely that he was assisting Nomikos in a script run.
The evidence demonstrated "furtive" movements by Packard and Vacca as the sedan was pulling to a stop, which warranted the Detectives in controlling the arms of the defendants as they exited the vehicle and walking them away from it. However, no evidence of the crimes for which they have been charged was found on their persons and further consideration of the manner of their removal from the sedan is not necessary. The defendants were certainly "seized" from the time that the Sedan was stopped. The Commonwealth does not argue otherwise.
Packard makes two additional arguments with respect to the stop of the sedan and its search that may be summarily disposed of. First, he suggests that there was something improper in the police's decision to wait until the sedan returned to Dedham to stop it, where a marked Dedham cruiser could pull it over. While issues sometimes exist when police stop and arrest a defendant outside of their territorial jurisdiction, in this case Packard argues that it was unlawful for the Dedham police to arrest the defendants in Dedham when the suspicious activity that gave rise to their reason to believe that a felony had been committed occurred in Norwood and Dedham. Packard cites no authority to support that unusual contention, and the court is aware of none. Such a principle would preclude police in one town who reasonably suspected that an individual had committed a felony from calling for assistance from police in another town into which the individuals had traveled.
Packard also argues that since Officer Barrett and Det. Walsh obtained the search warrants on June 26th, they were for some reason precluded from delaying execution to see if the defendants were going to commit additional crimes. Again, he cites no authority to support this contention. While, under some circumstances, a delay in execution might make a warrant stale, there is no rule that it must be immediately executed and the police are prohibited from conducting any further investigation by other means, such as surveillance of the defendants' activities in public places.
Packard asserts that even if his stop and seizure were lawful, his statements must be suppressed because he did not receive timely Miranda warnings. The court has, however, found that Sgt. Det. Colon provided Packard with Miranda warnings at the scene of the stop before Packard made any statement; and that Packard received them again at the Dedham police station and signed a Miranda waiver form and electronic recording form before he was interviewed.
Packard also argues that he did not knowingly, intelligently, and voluntarily waive his Miranda rights because he was under the influence of Oxycodone and for the same reason his statements were not voluntary. "The Commonwealth bears the burden of proving beyond a reasonable doubt, in the totality of the circumstances, that a defendant's waiver of the Miranda rights was voluntary, knowing, and intelligent, and that statements were voluntary." Commonwealth v. Anderson, 445 Mass. 195, 203 (2005). Packard did state during the interview that he took one Oxycodone in the car before it was stopped. Packard, however, complied appropriately to Sgt. Det. Colon's directions at the scene of the stop. The only statement that he made at that time came after he received his Miranda warnings and was told that he had been followed throughout the evening: When asked where the pills were, he replied "in the car." Although the audio recording of Packard's subsequent interview is poorly recorded and difficult to follow, the tone of the interview is casual, Packard's answers are responsive to the questions asked, and he appears anxious to tell the detectives about his limited involvement with Nomikos. The interview is quite brief. There is no evidence suggesting that Packard did not voluntarily, knowingly and intelligently decide to waive his right to remain silent and answer the detectives' questions. In Commonwealth v. LeClair, 68 Mass. App. Ct. 482, 484-485 (2007), the defendant had ingested Fentanyl, "a strong narcotic." The Appeals Court held that "even if the defendant were . . . under the influence of narcotics, there is o indication that his hindered his ability to waive the Miranda rights and voluntarily make statements thereafter. Being under the influence of drugs . . .does not necessarily render one's statements involuntary." Similarly in this case, the defendant stated that he had a one or two pill a day habit and had taken an Oxycodone pill shortly prior to the stop, but he did not appear to be so impaired that he could not make a voluntary and knowing decision that he wanted to tell the police about his limited involvement with Nomikos. See also Commonwealth v. Pina, 430 Mass 66, 71 (1999) (holding that experienced officers can rely on outward behavior and appearance of sobriety in deciding that it was appropriate to interrogate a witness who had received Miranda warnings and indicated that he wanted to speak with police).
Packard suggests that six pills from the prescription were unaccounted for and therefore he might have taken them. That is not evidence that he took the unaccounted for pills. To the contrary, having admitted that he was involved in the scam and took one pill, there seems little reason to infer that he took the missing pills. This suggestion is not evidence that Packard was so impaired that notwithstanding his outward appearance and ability appropriately to respond to the detectives questions his conduct must be have been involuntary.
B. Nicholas Vacca
Vacca raises the same issues as Packard. For the most part, Vacca's position is similar to Packard's. The court will address only those areas where the facts suggest some material difference between them. While Packard's feigned use of the crutches and purchase of the Oxycodone using the Children's Hospital prescription slip provided probable cause for the police to believe that he was participating in an illicit enterprise with Nomikos, Vacca was only a passenger in the car while these events were playing out. Nonetheless, his presence in the car for an extended period while Nomikos and Packard were engaging in a drug scam might be sufficient for the police reasonably to believe that Vacca was part of that enterprise. See Commonwealth v. Fernandez, 57 Mass. App. Ct. 562, 566 (2003) (holding that although a passenger in a vehicle was not observed handling drugs, a reasonable person might think that she was an accomplice in the crime). However, the court need not reach that issue. As noted above, it was proper for the police to order Vacca to exit the sedan so its passenger compartment could be searched. That search revealed an open pill bottle under the front seat and a bag with pills tucked between the front seats. Vacca had been observed bending forward in a manner suggesting placing something under a seat while the sedan was pulling over. Vacca was placed under arrest after the drugs were found. At that point, if not before, the police had reason to believe that he was an accomplice in the crime.
Vacca received Miranda warnings at the scene of the stop but was not questioned at that time. He received them again before the interview. While the recording of Vacca's interview at the police station was very hard to decipher, the court could hear questions and answers given in a conversational tone and Vacca denying that he took a pill or involvement in the script run, other than as a passenger. The court found that he made a knowing, intelligent, and voluntary waiver of his right to remain silent and voluntarily answered questions.
C. Evangelos Nomikos
Nomikos argues that the search of his car was beyond the scope of the search warrants issued for his apartment and person; however, as noted above, the car was searched incident to his lawful arrest and need not rest on the warrant. Moreover, the act of applying for and obtaining the warrants did not preclude the police from continuing their investigation and observing his participation in a "script run."
Nomikos does not contest the validity of the warrants and acknowledges that they were executed within seven days of their issuance. He complains that Officer Barrett did not file his return on the warrants until fourteen days after they were executed, which he points out is in violation of the G.L. c. 276, § 3A ("Every officer to whom a warrant to search is issued shall return the same to the court by which it was issued as soon as it has been served and in any event not later than seven days from the ate of issuance thereof, with a return of his doings thereon. . . ."). Nomikos does not argue that this delay is grounds for excluding any items listed on the return, but contends that several items that were not listed on the return must be excluded. However, the items that Nomikos moves to exclude, because they were not listed on the return, were, in fact, not seized pursuant to a search warrant. They were recovered during the search of the sedan incident to Nomikos' arrest.
ORDER
For the foregoing reasons, the defendants' motions to suppress are DENIED.