Opinion
No. 10-1024, 10-1026, 10-1027, 10-1028, 10-1029.
September 7, 2011.
MEMORANDUM OF DECISION AND ORDER ON MOTIONS TO SUPPRESS, MOTIONS TO DISMISS, AND FOR A FRANKS HEARING
A Norfolk County grand jury returned the following indictments against each of the five defendants: trafficking in cocaine and conspiracy to violate drug laws.
The defendants have filed the following motions, all of which are now before the court:
Luis Burgos (Burgos): motions to suppress evidence seized pursuant to a warrant and without a warrant;
Anny Candelario (Candelario): a Franks motion; a motion to suppress a search pursuant to a warrant; a motion to dismiss; a motion to suppress an admission; and a motion to suppress a search of an Infiniti SUV;
Maribel Noberto-Soto (Soto): a motion to suppress;
Alejandro Carrasco-Nieves (Nieves): a motion to dismiss and motion to suppress; and
Altagracia Contrera (Contrera): a motion to suppress.
A hearing was convened on all of the defendants' evidentiary and non-evidentiary motions on August 15, 2011. The Commonwealth presented the testimony of Detective Michael Reynolds and Detective Brian Cohoon, both members of the Braintree Police Department. Candelario testified on her own behalf. None of the other defendants offered the testimony of any witnesses. Three exhibits were received in evidence. At the conclusion of the hearing, all parties were permitted to file post-hearing memoranda in support of, or opposition to, the several motions. In consideration of the testimony, exhibits, memoranda, and arguments of counsel, Candelario's Motion to Suppress, concerning the warrantless search of an Infiniti SUV parked on a public street, will be ALLOWED. All other motions submitted by the defendants will be DENIED.
FACTS
In October 2010, a man (the informant) came into the Braintree police station, handed the desk officer a letter, and said words to the effect of: "investigate this." The informant would not identify himself or provide any additional information to the officer and, after handing-up the letter, left the station. The letter was given to Det. Reynolds, a detective in the Braintree narcotics unit with training and experience in investigating illegal drug sales.
A typed version of the handwritten letter was admitted at the hearing as exhibit 3. It is written in broken English, but purports to identify three individuals who live at 40 Sampson Street in Braintree ("the residence") and are dealing drugs: Ebel Gomez Soto (Gomez Soto), Burgos, and Carolina Acevedo. The letter states that the two males are from the Dominican Republic, Gomez Soto drives an Acura (and provides a license number for it), and Burgos drives a Honda (and provides a license number for it, as well). The letter also provides an alien resident identificantion number, date of birth and social security number for Burgos and states that Acevedo has three children in the house. The letter also includes two telephone numbers. The letter is unsigned.
Det. Reynolds began an investigation based on this anonymous tip. He ran the plates of the two vehicles. The registry report identified Burgos as the owner of one of the cars and a Wilma Soto-Gomez (Soto-Gomez) as the owner of the other . Through surveillance, Det. Reynolds confirmed that Burgos' and Soto-Gomez' photos, on file with the registry of motor vehicles, were consistent with the appearances of two individuals observed leaving the residence and getting into the two vehicles identified in the informant's letter. The police followed Burgos on at least one occasion after he entered the Honda, but they lost the vehicle in Boston. The two telephone numbers were traced only as far as the names of the cell phone service providers, not to individuals.
Another vehicle, a Dodge Stratus, was observed at the residence on two occasions: one long and one brief visit. The Dodge was registered to Nieves, but at a different address. A Board of Probation report on Nieves showed that he had convictions for possession of a class B substance with an intent to distribute. An Infiniti SUV was also observed at the residence during surveillance. It was registered to a Dina Melo, who lived in another town.
The residence is listed as a two family residence in the Braintree assessor's office and it appears to have a living unit on each of its two floors. Based on his surveillance, however, Det. Reynolds formed the impression that the inhabitants might not be using the building in that fashion. Everyone entered and exited through a side door adjacent to the driveway and the front door did not seem to be in use. Also an extension cord hung from a second floor window into a first floor window.
On the day that trash was collected from this address, Det. Reynolds and other officers pulled the trashed deposited outside of the residence. Five or six bags were transported to the Braintree police station for examination. In one bag, Det. Reynolds found plastic packaging and duct tape that, based on his experience, appeared to be the packaging for a kilo of narcotic drugs. The packaging was field tested for cocaine with a swipe, which turned blue indicating that it was positive for cocaine. (The test wipe was not saved by the police.) This trash bag also contained a receipt for the purchase of a $100 bottle of Inositol powder-a substance commonly used as a cutting agent for cocaine. The other trash bags all contained large numbers of plastic bags with the corners cut off (sometimes referred to as "diapered" bags), in the aggregate hundreds of such diapered bags, that are indicative of illegal drugs being packaged for street sale. Two trash bags contained mail addressed to both apartment 1 and apartment 2, 40 Sampson Street, which, according to Det. Reynolds, suggested that mail addressed to both apartments had been discarded in the same trash bag.
On October 27, 2010, the day following the trash pull, Det. Reynolds applied for and received search warrants to search for cocaine and drug related paraphernalia and documents at apartment 1 and apartment 2 at the residence and on the persons of Soto-Gomez, Luis Burgos, and an unidentified hispanic female, as well as any person who may be found at these locations and who has such property in his or her possession. The applications for the warrants were supported by Det. Reynolds' affidavit which set forth the information described above. Although, as noted above, Det. Reynolds did not think that the building was actually being used as two separate apartments, he applied for warrants for each "in an abundance of caution."
In the early morning of October 28, 2010, Det. Reynolds, Det. Cohoon (who had been a member of the Braintree police department for 27 years and had extensive experience investigating drug related crimes), and several other officers assembled at the residence to execute the warrants. The Honda and Acura were parked in the driveway beside the house, as was the Dodge Stratus; the Infiniti was parked on the street adjacent to the residence.
At approximately 6:00 A.M., the officers approached the house; a team was stationed at each entryway. Det. Reynolds went to the door at the side of the house that he had observed the occupants to use. He knocked and announced: "police." He received no response and the door was forcibly opened. After the Reynolds team was inside, two other teams also entered forcibly. Several officers yelled out, "search warrant" as they entered the residence. The door that the Reynolds team entered led into a small mudroom and from there into the kitchen. To the left of the kitchen door was a door to a basement.
Det. Cohoon opened the door to the basement, which was not locked, and proceeded downstairs with Det. Reynolds behind him. The stairs led to a large open area with a mattress on the floor and a television on a make shift table. There were two individuals in the room, a male and a female, later identified as Nieves and Contrera. Nieves ran toward a bathroom, pursued by Det. Cohoon. Nieves ran from there to a utility room that ran around the house and then back into the open space at the base of the stairs. Det. Cohoon apprehended Nieves. Det. Cohoon found a packet of white powder which appeared to him to be cocaine on the floor near the bathroom. He handed Nieves pajama bottoms to put on. There was another plastic bag wrapped in a napkin in the pocket of the pajamas.
The testimony did not disclose whether this napkin was found by Det. Cohoon when he picked up the pajamas or after Nieves had put them on.
When Det. Cohoon pursued Nieves, Contrera attempted to distract Det. Reynolds. Det. Reynolds detained Contrera.
The basement had no access to the outside of the building, and could be accessed only from the stairs to the kitchen. It consisted only of the open space at the foot of the stairs where the mattress, table and television were located, a bathroom, and a utility room that filled the rest of the basement space.
The first floor of the building had a kitchen and two sparsely furnished rooms that might have been used as a dining room and play room for children. There were no sleeping quarters evident on the first floor. There were three bedrooms upstairs. The police found a male and female, later identified as Soto-Gomez and Gomez Soto, in one of the bedrooms. In that room they also recovered a suitcase containing some 285 grams of cocaine and more than $20,000 of United States currency, separated into rubber-banded packets of $1,000 a piece. The police also found a male and female, later identified as Burgos and Candelario, in another bedroom. In that bedroom, they recovered some sixty-five grams of cocaine, some of it packaged for street sale, and a number of "diapered" baggies. Two plastic bags that contained a substance then believed to be heroin were also found in this bedroom; however, the substance was later determined to be a cutting agent.
The six individuals were cleared from the house, arrested, and taken to the Braintree police station for booking. The vehicles were searched. Cash was found in the Acura; an empty corner cut baggie was found in the Dodge; and a small bag of cocaine was found in the Infiniti. A few hours later, the registered owner of the Infiniti, Dina Melo, contacted the police seeking to retrieve the car. She acknowledged that she was aware that Candelario was using the car for drug related activity.
After she was booked, Candelario spoke to Det. Cohoon at the police station. She called out to him from a holding cell concerned about her children. He brought her to a small interview room and read her Miranda warnings. (She had previously received them on booking.) Det. Cohoon asked how old her children were and indicated that she was in trouble and could serve a long sentence. He told her that the police knew that she was dealing drugs. This caused Candelario distress and she began to cry. They discussed the fact that there were warrants outstanding for her arrest on other matters (and under other names). The Detective did not ask her about this case. Candelario was very upset and asked the Detective if the police had "found a lot of drugs in the house?" She then said that she did not want to talk anymore and the conversation ended. The conversation was not recorded.
RULINGS OF LAW
I. The Search Warrant Affidavit
Candelario, Nieves, Noberto-Soto, Burgos, and Contrera contend that the affidavit submitted in the search warrant application did not establish probable cause to search the residence, and that the Commonwealth deprived them of access to exculpatory evidence in discarding the field test kit used in the trash analysis discussed above.
A. Probable Cause And Nexus Between The Residence And Criminal Activity
Based on an anonymous tip delivered to the Braintree police station, Det. Reynolds analyzed the trash deposited on the curb by the residence. From this trash pull, police officers recovered plastic wrap entangled with duct tape, in a manner consistent with packaging large amounts of cocaine. Those materials field-tested positive for cocaine, providing further evidence that they had been used to package large quantities of the drug. In addition, the police found hundreds of "diapered" plastic baggies throughout the residence's trash. Diapered plastic baggies, with the corners cut off, are typically used to package smaller quantities of cocaine for street sale. Finally, the police located a receipt for the purchase of $100 of Inositol, a cutting agent used in selling cocaine.
The parties have submitted arguments on whether this anonymous tip satisfies the Aguilar-Spinelli factors, the factos which govern any analysis of whether information provided by a confidential informant is sufficiently reliable to support the issuance of a search warrant. The court finds this approach to determining whether there was probable cause to issue the search warrant for 40 Sampson Street misguided. The anonymous tip led the police to investigate activities at 40 Sampson Street. That investigation, particularly the trash pull, disclosed sufficient evidence that illegal drug activity was being conducted at that location to support the warrant.
Surveillance of the residence disclosed that a person known to have prior convictions for possessing cocaine with an intent to distribute it visited on more than one occasion.
The anonymous tip which caused the investigation to begin was certainly of interest, but not essential to a magistrate's conclusion that there was probable cause to believe that illegal drug related activities were being engaged in at 40 Sampson Street. See Com monwealth v. Hason, 387 Mass. 169, 174 (1982), and cases cited. Compare Commonwealth v. Matias, 440 Mass. 787, 789 (2004) (finding probable cause existed to issue search warrant where police collected residential trash and "found a large amount of plastic wrap containing an herbal substance [police] believed to be marijuana" along with "many large plastic baggies, some of which contained an herbal substance which was tested and analyzed as marijuana.").
Any argument that the information concerning the residence was "stale," is foreclosed by the fact that the trash pull was conducted the night before the police applied for the search warrant.
B. Disposal Of The Field Test Kit
The defendants further suggest that any references to the results of a field test of the packaging retrieved from the residence's trash should be disregarded in considering the adequacy of the affidavit to support the warrant because the Commonwealth destroyed the field test kit, depriving the defendants of exculpatory evidence. The first problem with this argument is that the defendants have not explained how the field test kit would have been exculpatory, had the Commonwealth retained it. Cf. United States v. Mack, 892 F.2d 134, 137 (1st Cir. 1987) (declining to find Brady violation where "[t]here [was] no indication that the results of any field test [discarded by the government] were favorable to Mack's case.")
At oral argument, the Commonwealth again represented that the results of the field test kit were positive for cocaine.
The second problem is that the Commonwealth did not rely on the field test kit in the search warrant affidavit; it relied instead on Det. Reynold's statements concerning the field test results. The defendants offer no evidence, or rationale, to support a suggestion that the magistrate, or this court, had reason to question the police detective's competency to conduct a field test or his veracity in reporting its results. Cf. Commonwealth v.Fernandez, 458 Mass. 137, 139, 151-152 (2010) (finding no violation of defendant's constitutional rights where police discarded field test kits used to confirm presence of cocaine on plastic bags recovered from defendant's trash; defendant had the ability to cross-examine the officer testifying to the results of the field testing, concerning the decision to discard them).
II. The Search Warrant
Candelario, Carrasco-Nieves, Noberto-Soto, Burgos, and Contrera maintain that the search warrant was defective in that it did not describe the place to be searched with the required particularity, and impermissibly called for a search of "all persons present" within the residence. In addition, the defendants accuse the officers executing the search warrant of failing to knock and announce their entry into the residence.
A. Particularity
The defendants contend that the search warrant, which authorized the search of apartment #1 and apartment #2 in the residence, incorrectly described the premises to be searched and was not supported by probable cause to search each individual unit. The defendants argue that, without such support, the search warrant was invalid. See Commonwealth v. Hall, 366 Mass. 790, 798-800 (1975).
1. Description of the Premises to be Searched
The defendants assert that police mistakenly identified the first floor of the residence as unit #1 and the second floor as unit #2 in the search warrant application. They maintain that, in fact, the first and second floors, together, constituted apartment #1 and the basement of the residence constituted apartment #2. Based on those assertions, the defendants argue that the search warrant was constitutionally defective because it incorporated the police's error in describing the residence and consequently did not accurately describe the place to be searched with particularity.
"The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide ranging exploratory searches the Framers intended to prohibit." Commonwealth v. Carrasco, 405 Mass. 316, 323 (1989), and cases cited (internal quotations omitted).
If the officers had known, or even if they should have known, that the residence was divided into one dwelling unit comprised of the upper floors and one dwelling unit in the basement, they would have been obligated to describe the residence accordingly in their search warrant application. See id., quotingMaryland v. Garrison, 480 U.S. 79, 85-86 (1987). "But we must judge the constitutionality of their conduct in light of the information available to them at the time they acted. . . . Just as the discovery of contraband cannot validate a warrant invalid when issued, so is it equally clear that the discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant."Id. at 323-324, quoting Garrison, 480 U.S. at 85-86.
When the police applied for the warrant, they certainly did not know that the residence was divided into separate apartments between the basement and the upper floors, as opposed to between the first floor and the second floor. Rather, based on the external appearance of the building and information from the assessor's office, they fairly concluded that there was a unit on each floor, although they were suspicious that the building might then be in use as a single family residence. The defendants do not argue that there was any reason for the police to believe that the basement, with no separate access to the outside, was a separate unit.
Moreover, the evidence before the court does not suggest that the basement was a separate apartment. The basement — which could only be accessed through a door in the kitchen of the residence — included only mattresses on the floor, a bathroom, and a television. There was no place to eat or store food. The court, therefore, finds that the basement was not a separate residence. However, even assuming, arguendo, that the basement was apartment #2, the police had no way of knowing that at the time they submitted their search warrant application, or at the time they executed the warrant.
"Nothing in the record suggests that, without going into the [residence] and investigating the [basement], the police should have suspected and could have discovered that" the basement was a separate apartment unit. Id. at 324. The police "were not required to risk disclosure of their surveillance, and thereby jeopardize their investigation, by going to the [basement of the residence] before applying for the warrant."Id. at 324-325, quoting Commonwealth v.Demogenes, 14 Mass. App.Ct. 577, 582 (1982). This court concludes, therefore, that the warrant identified the premises to be searched with sufficient particularity.
2. Probable Cause to Search Each Respective Unit
The facts known to the police provided probable cause to search both apartment #1 and apartment #2, however those units might have been delineated. The trash analysis from the residence revealed diapered plastic baggies in every trash bag in front of the residence. Additionally, mail addressed to apartment #1 and apartment #2 was found discarded in the same trash bag, an extension cord was seen running between the first and second floors, and the police observed all occupants of the residence entering and exiting from the same door. These observations provided sufficient reason to believe that cocaine distribution activities were taking place in both apartments, or at least that whichever residents were involved in cocaine distribution had access to both apartments.
For these reasons, the search warrants for both apartment #1 and apartment #2 were adequately supported by probable cause. SeeCommonwealth v. Dew, 443 Mass. 620, 625 (2005) (holding that where probable cause existed to believe those involved in criminal activity had access to all units in multi-unit dwelling, search warrant encompassing all such units was properly issued);Commonwealth v. Dominguez, 57 Mass. App.Ct. 606, 609 (2003) (holding that search warrant encompassing all units of multi-unit dwelling is proper "where it is shown that general access to, and control over, all the building's subunits are available to building occupants").
B. All Persons Present
The defendants next suggest that there was no basis to include language in the search warrant authorizing the search of "all persons present" in the residence at the time of the search. Authority to search all persons present during the execution of a search warrant "can only be valid where the underlying circumstances presented to a judge or clerk clearly demonstrate probable cause to search the named premises and to believe that all persons present are involved in the criminal activity afoot." Commonwealth v.Smith, 370 Mass. 335, 345 (1976).
Here, these circumstances provided a sufficient basis to authorize the search of all persons present at the residence. The residence was a "small, confined, and private" area, not accessible to members of the public who might otherwise have been subjected to improper search. Id. at 344. (holding that language authorizing the search of all persons present was properly included in search warrant pertaining to apartment used as site of heroin trafficking enterprise). Since the residence was used as a site for cocaine trafficking, the search warrant pertained to "the kind of contraband which, because of its nature and the type of packaging customarily used in its transfer from one individual to another, could reasonably be inferred would be discovered on the persons of those individuals present."Id. "Further, the insidious nature of the contraband [cocaine] was such as to render it more likely than not that the participants would act in secret and to the exclusion of innocent persons. . . ."Id. at 345. Contrast Commonwealth v.Baharoian, 25 Mass. App.Ct. 35, 38-40 (1987) (holding that language authorizing the search of all persons present was improperly included in search warrant pertaining to convenience store open to the public). Unlike the convenience store inBaharoian, where there was no reason to expect that everyone present would be involved in criminal activity, the residence was a private building, not open to the public, used to conduct clandestine illegal activities. Compare State v.Hinkel, 365 N.W.2d 774, 776 (Minn. 1985) (illegal gambling and drug use hosted in private residence). The authorization in the search warrant to search all persons present was not constitutionally defective.
Furthermore, in this case, it would make no practical difference if the "all persons present" language was not supported by probable cause and that portion of the warrant was held unenforceable. The only contraband even arguably recovered from the persons of any of the defendants was a quantity of suspected cocaine taken from pajamas handed to Nieves to put on. Because Nieves had been apprehended while attempting to flee from the police — and because another quantity of cocaine was recovered from the path of his attempted flight — the seizure of the cocaine from the pajamas would have been supported as a search incident to arrest. Finally, any deficiencies in the authorization to search all persons present would not invalidate so much of the warrant as authorized the search of the residence. See generally Commonwealth v.Davis, Memorandum and Order Pursuant to Rule 1:28, 71 Mass. App.Ct. 1104, 2007 WL 151083 *1 (Jan. 16, 2008) (where only the language authorizing the search of all persons present was challenged, "[t]he remaining portions of the warrant accordingly survive, and authorize[] the search the described [residence].")
C. Knock and Announce
As noted above, and contrary to the defendants' assertions, this court finds that the officers executing the search warrant did knock and announce their entry in accordance with the terms of the warrant.
III. Searches of the Automobiles
Burgo and Candelario, respectively, argue that the search warrant did not authorize the searches of the Acura and the Infiniti.
A. Acura within the Curtilage of the Residence
The Acura was parked in the driveway of the residence at the time it was searched. "[T]he scope of a warrant authorizing the search of a particularly described residence includes any automobiles, owned or controlled by the owner of such residence, which are located within the curtilage of the premises at the time the warrant is executed." Commonwealth v. McCarthy, 428 Mass. 871, 873 (1999), citing Commonwealth v.Signorine, 404 Mass. 400, 403 (1989).
"[A]utomobiles parked . . . on the driveway to the residence are within the curtilage; those parked on a public street are not." Grasso McEvoy, Suppression Matters Under Massachusetts Law, § 8-3[c], citing McCarthy, 428 Mass. 873-874. "If a vehicle parked in a driveway is within the curtilage, it may be searched pursuant to a warrant issue to search the accompanying residence." Fernandez, 458 Mass. at 143.
It is true that shared parking spaces appurtenant to a multi-unit apartment building do not typically fall within its curtilage. SeeMcCarthy, 428 Mass. at 875. However, the driveway of the 40 Sampson Street was immediately adjacent to the residence, was not shared with other tenants, and was not regularly accessed by visitors or other members of the public, in the same way that the parking lot of an apartment building would be. SeeFernandez, 428 Mass. at 143 (applying the so-calledDunn factors that include proximity of the driveway to the home and the nature of the uses to which the driveway is put). Contrast McCarthy, 428 Mass. at 875 (Parking lot of multi-unit apartment complex not within the curtilage of the defendant's residence where "[o]n a daily basis not only would tenants and their guests pass through the lot, but so would delivery people, maintenance workers, and anyone else with business at the building.")
Consequently, the Acura, parked in the driveway of the residence, fell within its curtilage and was properly subject to search pursuant to a warrant to search the residence.
B. Infiniti on a Public Street
As noted above, vehicles "parked on a public street outside the curtilage of the property are outside the scope of a warrant directed solely to the residence." Grasso McEvoy, Suppression Matters Under Massachusetts Law, § 8-3[c], citingCommonwealth v. Santiago, 410 Mass. 737, 741 (1991). In consequence, the Infiniti, parked on a public street outside the curtilage of the residence, was not properly subject to search during execution of a warrant to search the residence.
No exception to the warrant requirement justified the search of the Infiniti. For these reasons, the evidence recovered from the Infiniti will be suppressed.
IV. Motions To Dismiss
Candelario and Nieves have each submitted Motions to Dismiss the indictments against them, pursuant to Commonwealth v.McCarthy, 385 Mass. 160 (1982). The threshold of evidence required to survive a motion to dismiss under McCarthy is low. The court "must decide whether the grand jury were presented with sufficient evidence to support a finding of probable cause to arrest the defendant[s]" for the crimes charged. Commonwealth v. Roman, 414 Mass. 642, 643 (1993). "The evidence before the grand jury must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense." Id. A. Candelario
In this section, the court will discuss evidence that was presented to the grand jury; although not offered at the suppression hearing.
Candelario asserts that the grand jury was not presented with sufficient information to enable it to conclude that probable cause existed to arrest her for the crimes of trafficking in cocaine and conspiracy to violate the drug laws of the Commonwealth. Seeid. at 647.
As discussed in this court's findings of fact, Candelario was found in a bedroom with Burgos at the time the search warrant was executed. In searching that bedroom, the police discovered sixty-five grams of cocaine, packaged for street-level sale.
In addition, the grand jury was presented with evidence that she gave Melo $100 in cocaine per week to compensate Melo for registering the Infiniti in Melo's name. The grand jury heard testimony that Candelario used the Infiniti despite it being registered to Melo. Moreover, this court heard credible testimony that Melo told the police that she knew Candelario was using the Infiniti for drug-related activities.
1. Trafficking
Possession with intent to distribute fourteen grams or more of cocaine is, in itself, sufficient to support a charge of trafficking in cocaine. See G.L. c. 94C, § 32E(b)(2). Here, sixty-five grams of cocaine was found in the bedroom where Candelario was apprehended at the time the search warrant was executed. "While presence in an area where contraband is found alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband], . . . presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency." Commonwealth v. Brzezinski, 405 Mass. 401, 409-410 (1989) (internal quotations omitted, alterations in original).
There is ample incriminating evidence concerning Candelario beyond her mere presence in the bedroom from which the cocaine was recovered. The grand jury heard evidence that Candelario gave Melo $100 worth of cocaine per week to compensate her for registering the Infiniti in Melo's name, though it was Candelario who used it for "drug-related activities." In addition, there was evidence presented to the grand jury that several personal effects belonging to Candelario were recovered from the bedroom in which she, and the sixty-five grams of cocaine, were found. See Commonwealth v.Rarick, 23 Mass. App.Ct. 912, 912 (1986) ("When contraband is found in a dwelling shared by a defendant and one or more other persons, a finder of fact may properly infer that the defendant is in possession of the contraband . . . from evidence that the contraband was found in proximity to personal effects of the defendant in areas of the dwelling, such as a bedroom or closet, to which other evidence indicates the defendant has a particular relationship.")
2. Conspiracy
The grand jury also heard evidence that Candelario lived at the residence and was pregnant with Burgos' child. These facts, in conjunction with the evidence set forth above, permit the inference that at least Candelario and Burgos, "living together . . . working toward a common end, were engaged in a conspiracy." Commonwealth v. Pratt, 407 Mass. 647, 654 (1990) (affirming convictions of husband and wife for conspiracy to violate drug laws where they lived in the same residence and there was evidence each knew of and participated in the drug distribution enterprise).
Alternatively, the grand jury could reasonably infer that Candelario and Melo engaged in a conspiracy to distribute cocaine, since there was evidence before the grand jury that Candelario and Melo agreed that Candelario would distribute to Melo, and Melo would accept, $100 in cocaine each week in exchange for registering the Infiniti in Melo's name.
B. Nieves
Nieves argues, first, that the evidence before the grand jury was insufficient to support the indictments against him and second, that the Commonwealth misleadingly distorted its presentation of the evidence to the grand jury.
1. Sufficiency of the Evidence
When police officers executing the search warrant entered the basement of the residence, Nieves immediately attempted to flee and was subdued. Along the path Nieves followed while trying to avoid apprehension, the police recovered a baggie containing cocaine. The police recovered another small quantity of cocaine from the pocket of pajama pants that belonged to Nieves. Moreover, the grand jury heard evidence that the Dodge Stratus was registered to Nieves, and the police discovered another diapered plastic baggie in that vehicle.
Nieves, like Candelario, suggests that his presence in the residence is not sufficient by itself to support the indictments against him. However, also like Candelario, Nieves' presence in the residence, when "supplemented by other incriminating evidence" does suffice to support the indictments. See Brzezinski, 405 Mass. at 409-410. The diapered plastic baggies recovered in the trash pull suggested that drug distribution activities were taking place in what appeared to be a single-family residence, where Nieves was found. Nieves' Dodge Stratus, an area subject to his exclusive dominion and control, also contained an empty corner cut baggie. Additional amounts of cocaine were recovered from Nieves' vicinity when the police entered the basement, and from Nieves' pajama pants after he was apprehended.
These circumstances warrant the inference that Nieves was a conspirator in the cocaine distribution enterprise, and not merely an innocent bystander. Contrast McCarthy, 385 Mass. at 163-164 ("The grand jury did not have before it any evidence of criminality by the defendant.")
2. Presentation of Evidence to the Grand Jury
Nieves also argues that the Commonwealth distorted the evidence before the grand jury by not introducing the informant's letter to the Braintree police and by omitting evidence suggesting that the basement of the residence was a separate apartment. It did not. The omission of the informant's letter or the condition of the basement did not serve to distort the evidence before the grand jury in a way that prejudiced the defendant. Contrast Commonwealth v.O'Dell, 392 Mass. 445, 448-449 (1984) ("[T]he omission of . . . words from the defendant's statement . . . tended to distort the meaning of that portion of the defendant's statement . . . and, in addition, strongly suggested, incorrectly, an admission of guilt by silence.")
The selective presentation of some portion of the O'Dell defendant's statement to the O'Dell grand jury had the consequence of effectively fabricating an inculpatory admission that the O'Dell defendant never made. By contrast, the omission of evidence from the grand jury here did not create misleading evidence suggesting Nieves' guilt. There was no reason to suspect that "the integrity of the grand jury proceedings was impaired."Id. at 449.
Nieves argues that the anonymous tip, which took the form of a letter delivered to the Braintree police station by an anonymous informant, should have been included in the evidence presented to the grand jury because the letter specifically named Gomez Soto and Burgos, but not Nieves, as individuals involved in cocaine distribution activities in the residence. This is the same letter that the defendants argued was so unreliable that it failed the Aguilar-Spinelli test and should not have been considered in determining whether there was probable cause to search 40 Sampson Street. But more fundamentally, while the letter only named Gomez Soto and Burgos as persons who lived at 40 Sampson Street and were involved in cocaine distribution, it clearly does not state that others were not also involved in the enterprise. The letter had no particular exculpatory value with respect to Nieves and need not have been presented, even if the Commonwealth were obligated to submit all possibly exculpatory evidence to the grand jury, which it was not. Commonwealth v. Silva, 455 Mass. 503, 510 (2009).
V. Motion To Suppress Statements
Candelario asserts that her statements to Braintree police officers following her arrest were not made voluntarily and should be suppressed. She admits that she was properly apprised of herMiranda warnings, but compares the actions of the interrogating officers to the police in Commonwealth v.Novo, 442 Mass. 262, 269 (2004). In Novo, the interrogating officers repeatedly told the Novo defendant that his "right to tell his side of the story to a jury was conditioned on his revealing it to them during the interview."Id. at 268. This "repeated misrepresentation of Novo's trial rights irretrievably tainted his confession." Id. at 269.
Candelario insists that, because the officers who interrogated her expressed a belief that she was guilty of dealing drugs and asked her about her children, her statements were likewise tainted and involuntary. The conduct of the officers who interrogated Candelario does not approach that of the officers who interrogated theNovo defendant. Expressing a belief that Candelario dealt drugs is not the same as "misrepresentation of . . . trial rights."Id. It was that misrepresentation of a defendant's fundamental rights that tainted the confession of the Novo defendant.
To the extent Candelario maintains that Det. Cohoon's references to the welfare of her children rendered Candelario's statements involuntary, that suggestion is also without merit. Clearly, a conviction on trafficking in cocaine could place her opportunity to parent her children jeopardy. Det. Cohoon's brief reference to this obvious consequence of criminal conduct did not render Candelario's statements involuntary.
Alternatively, Candelario contends that her interrogation was not recorded, "in violation of Massachusetts law." However, a failure to record Candelario's interrogation was not, as she puts it, a violation of Massachusetts law. To the contrary, the Supreme Judicial Court has "stopped short of requiring electronic recording of interrogations as a constitutional or common-law prerequisite to the admissibility of any resulting statements by the defendant."Commonwealth v. DiGiambattista, 442 Mass. 423, 441 (2004).
While Candelario may be entitled to a cautionary instruction to the jury concerning the voluntariness of her statements, seeid. at 447-448, the evidence before this court falls short of establishing that her statements to the police were coerced or otherwise not the product of a rational intellect and a free will.Novo, 442 Mass. at 266-267 ("The test for voluntariness of a confession is whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.").
The police did not threaten, deceive, or exert any particular coercive pressure on Candelario to encourage her to make statements to them. In fact, it was Candelario who called out from her holding cell and initiated the interaction she had with Det. Cohoon. Det. Cohoon preceded his conversation with Candelario by reciting herMiranda warnings. Det. Cohoon made reference to Candelerio's children and to the fact that she would be imprisoned if convicted, but did not even question Candelerio about the crime for which she was just arrested. Candelario terminated the interview shortly after it began. The totality of the circumstances does not suggest Candelario's will was in any way overborne so as to render her statements involuntary.
VI. Franks Motion
Finally, Candelario states that the affidavit submitted in support of the search warrant contained misrepresentations of fact. She requests an opportunity to cross-examine the affiant at an evidentiary hearing.
"To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof."Franks v. Delaware, 438 U.S. 154, 171 (1978).
Candelario does not suggest deliberate falsehood or reckless disregard for the truth on the part of the Commonwealth, nor has she presented an offer of proof to support her position. Contrast id. at 158 (defendant offered to call witnesses quoted in search warrant affidavit; witnesses would testify that neither had been personally interviewed by the affiants, and any information the witnesses may have given to the police was different from what was recited in the affidavit).
The disputed issues in Candelario's Franks motion center on the informant's letter to the Braintree police. Candelario interprets various ambiguities in the language of the informant's letter differently than Det. Reynolds did in his affidavit. For example, Candelario suggests that nothing in the informant's letter supported the inference that the residence itself was being used as the site of a drug delivery service, and that Det. Reynolds' suggestions to that effect in his search warrant affidavit were misstatements of fact necessitating a Franks hearing.
For substantially the reasons offered in the Commonwealth's Opposition, this court concludes that there were no misstatements in the search warrant affidavit sufficient to require aFranks hearing. The informant's letter, though clearly written by someone with limited proficiency in English, clearly refers to "40 Samson St." being used by two "dealer drug[sic]" to conduct a "drug delivery" business using two cars, one of which was an Acura and the other of which was a "black car." The letter specifies two telephone numbers used for "telefon [sic] delivery" of drugs.
Det. Reynolds' interpretation of the statements in the informant's letter as a tip that the residence and the vehicles identified in the letter were being used in connection with a drug distribution business was, at the very least, reasonable. Candelario has failed to satisfy her burden to show that a Franks hearing is necessary to address false statements or reckless distortions of the truth in the search warrant affidavit. SeeCommonwealth v. Corriveau, 396 Mass. 319, 334 (1985).
In addition, Candelario asserts that Det. Reynolds made a false statement of fact when he stated in the search warrant affidavit that the informant placed his anonymity at risk by delivering the letter to the police station in person. Being physically present in the police station did present some "risk" to the informant's anonymity; the police were able to see him, and possibly identify him based on his appearance.
CONCLUSION AND ORDER
For the foregoing reasons, Candelario's Motion to Suppress evidence recovered from the warrantless search of the Infiniti is ALLOWED. In all other respects, the defendants' Motions to Suppress and Dismiss, and for a Franks hearing, are DENIED.