Opinion
13-P-1918
04-14-2015
COMMONWEALTH v. IGNACIO DIAZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial on February 22, 2013, a Superior Court jury convicted the defendant of trafficking in cocaine, 200 hundred grams or more, in violation of G. L.c. 94C, § 32E(b)(4). On appeal he challenges the denial of his pretrial motion to suppress evidence and the denial of his motion for a required finding of not guilty. We affirm the conviction.
1. Motion to suppress. a. Background. We summarize the judge's findings of fact supplemented by uncontested evidence provided at the evidentiary hearing on the motion. See Commonwealth v. Lopez, 458 Mass. 383, 384-385 (2010). On March 17, 2011, a magistrate of the United States District Court issued the initial search warrant authorizing the United States Postal Service (USPS) to seize and search an express mail package mailed from Puerto Rico and addressed to "Elite Performance, 26 Hadley Mills Road, Holyoke." The warrant was based on postal Inspector Bryon Dailey's affidavit. In his affidavit, Dailey stated that on October 5, 2010, the New York USPS office had received an express mail package containing cocaine that had been sent from an invalid address in Puerto Rico. The package was associated with another express mail parcel that had been delivered to 26 Hadley Mills Road and signed for by Elite Performance. After being notified of the two packages, Dailey determined that a third package from an invalid address in Puerto Rico had been delivered to Elite Performance on September 23, 2010.
On March 16, 2011, the officer in charge at the Holyoke post office received another express mail package addressed to Elite Performance with an invalid return address in Puerto Rico, and Dailey was notified of that package. Dailey took custody of the package and transported it to his Springfield office. Upon subsequent investigation, Dailey learned that on June 15, 2010, the New York Postal Inspection Services had seized and opened another package containing cocaine addressed to Jose Vega Robles at Elite Performance.
Not the defendant.
Based on this information, Dailey requested a K-9 inspection of the March 16, 2011, package. On March 17, 2011, a K-9 officer came to the USPS Springfield office with his dog, who was trained to detect the presence of narcotics; the dog alerted to the presence of narcotic drugs in the package. Dailey then applied for and received a search warrant on March 17, 2011.
Following the issuance of the March 17 Federal search warrant based on Dailey's affidavit, Dailey opened the package and found approximately 2.11 pounds of cocaine and other items. The package was resealed, and Dailey contacted the Holyoke police department.
On March 18, 2011, late at night, Inspector Dailey and Detective Anthony Brach of the Holyoke police department drove by Elite Performance to determine its location. Dailey and Brach presumed that a single-story garage was the location of the business. Based on the information gathered from the reconnaissance trip and from Dailey, Brach sought and was issued a State anticipatory search warrant for a single-story garage at 26 Hadley Mills Road, Holyoke.
The address was in a business or industrial area with no residences in the vicinity. There were no visible address numbers on the buildings at the time Brach and Dailey drove by.
On March 19, 2011, Dailey parked his mail truck in a common area parking lot by Elite Performance. The defendant approached Dailey, conversed with him, signed for the package, took the package, and later entered a large two-story building adjacent to the one-story garage that Brach had identified as Elite Performance. Brach concluded that the State search warrant was not for the location the defendant entered and advised the task force of fifteen to twenty police officers who were observing the delivery to enter and secure the two-story building without searching the building or the individuals inside. Prior to entering the building, the officers secured a number of people who were outside as, according to Brach's testimony, they did not know who was involved with the drug trafficking at the time. Brach also noticed that the building had multiple exits including doors that led to the roof of the building which was connected to adjacent buildings.
Meanwhile, Brach sought a new State search warrant for the two-story building but, in his supporting affidavit, did not include any new evidence observed by the task force while securing the building from the inside. After the warrant was issued, a search of the building uncovered the cocaine shipped from Puerto Rico, items related to cocaine distribution, and documents related to the building's occupants.
The only difference between the two affidavits in support of the warrants was that, instead of describing a one-story garage, the second affidavit described a two-story building. The second affidavit also included a paragraph in which Brach explained the circumstances leading to the request for a new search warrant (including that the package containing cocaine was delivered by Dailey).
b. Discussion. In reviewing the judge's denial of the defendant's motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of the motion judge's ultimate findings and conclusions of law. Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The defendant first challenges the validity of the Federal search warrant. Specifically, he argues that Inspector Dailey lacked reasonable suspicion to detain the package, that Dailey unreasonably detained the package, and that the Federal warrant is defective on its face because it was based on stale information.
We review the validity of a Federal search warrant under Federal law. See Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 792 (1998) (Pinto). We begin our analysis by noting that Inspector Dailey's removal of the package for further investigation to his Springfield office constituted a seizure under the Fourth Amendment to the United States Constitution. See United States v. Jacobsen, 466 U.S. 109, 113 (1984) (seizure occurs when "there is meaningful interference with an individual's possessory interest in th[e] property").
Nevertheless, under Federal law, the detention of a sealed package entrusted to the postal carrier is lawful if the authorities have reasonable suspicion to believe that the package contains contraband. See United States v. Place, 462 U.S. 696, 702-706 (1983); United States v. LaFrance, 879 F.2d 1, 4 (1st Cir. 1989) (LaFrance). See also Pinto, supra. Based on the "totality of circumstances," and informed by experience and training, an officer must develop a "particularized and objective basis" to conclude that criminal activity is afoot in order to establish reasonable suspicion. See United States v. Cortez, 449 U.S. 411, 417-418 (1981).
In this case, the record shows that Dailey had been a postal inspector for twenty-one years and had experience with investigations involving controlled substances and other contraband. His suspicion was warranted by the lack of a valid Puerto Rico return address for the express mail package combined with his knowledge that two other express mail packages with invalid return addresses in Puerto Rico had previously been delivered, including one package associated with another package that had contained a large quantity of cocaine. See Pinto, 45 Mass. App. Ct. at 792. See also United States v. Allen, 990 F.2d 667, 671 (1st Cir. 1993) (Allen).
In addition to reasonable suspicion, the law requires that the detention of the package be reasonable. See La France, 879 F.2d at 8-9 ("investigatory diligence," "length of detention," and "information conveyed to the suspect" are the three relevant factors for determining reasonableness). Here, contrary to the defendant's argument, the one-day detention of the express mail package was not unreasonable. Compare United States v. Van Leeuwen, 397 U.S. 249, 253 (1970) (Van Leeuwen) (twenty-nine hour detention of first-class mail not unreasonable). After having been notified about the package, Dailey travelled from Springfield to Holyoke to take custody of the package. The same day, Dailey requested additional information to help with the investigation and found out that another package containing cocaine had been addressed to Elite Performance in June, 2010. Prompted by the acquired information, he contacted the Massachusetts State police and scheduled a dog sniff test for the next day. See Pinto, 45 Mass. App. Ct. at 793 (United States mail can be exposed to a dog sniff if reasonable suspicion of criminal activity exists); Allen, 990 F.2d at 671. The dog alerted to the presence of narcotics in the package which provided sufficient probable cause for the issuance of the search warrant. See United States v. Maldonado-Espinosa, 968 F.2d 101, 103 (1st Cir. 1992). The package was resealed and delivered on March 18, 2011, two days after the scheduled delivery date.
Although in theory the dog sniff could have been scheduled for the same day the package was seized, the police were not required "to use the least intrusive means imaginable" and we need not compare their speed with the "putative celerity of hypothetical alternatives." La France, 879 F.2d at 10. When, as here, only "possessory interests" in the prompt delivery of the package are at stake, with no liberty interests affected, the law has recognized solely a "theoretical" limit on the detention of packages delivered by mail. Id. at 9, quoting from Van Leeuwen, 397 U.S. at 252. In this case, the interference with the defendant's possessory interest in the package does not provide a "decisive counterweight to the public's interest" in a successful investigation. See La France, 879 F.2d at 9. We conclude that performing the dog sniff that established probable cause a day after seizing the package was acceptable and reasonable. Id. at 10.
Dailey's affidavit offers no reason why the dog sniff was not accomplished the same day that the request was made.
The defendant's other argument pertaining to the validity of the Federal search warrant relates to the alleged "staleness" of the information supporting Dailey's reasonable suspicion -- in other words, to the five-month time gap between the detention of the package and the last relevant event prior to that, the delivery of another suspicious package, included in Dailey's affidavit. See United States v. Schaefer, 87 F.3d 562, 568 (1st Cir. 1996) ("[A]n affidavit supporting a search warrant must contain timely information or else it will fail"). However, in determining staleness, a judge deciding a suppression motion need not "measure the timeliness of information simply by counting the number of days that have elapsed." United States v. Pierre, 484 F.3d 75, 83 (1st Cir. 2007) (Pierre). The judge's "primary consideration" is whether the affidavit presents "a continuing pattern of criminal conduct" as opposed to a "single transaction." United States v. Nocella, 849 F.2d 33, 40 (1st Cir. 1988) (Nocella). The particular "nature and characteristics of the suspected criminal activity," see Pierre, supra at 83, can supply the thread connecting the isolated events described in the affidavit. Here, the delivery of three packages with invalid return addresses, including the package subject to the Federal search warrant, all under suspicion of containing trafficked narcotics, leaves a continuous trace of criminal activity sufficient to withstand a staleness challenge. See Nocella, supra at 40 ("By its very nature, drug trafficking, if unchecked, is apt to persist over relatively long periods of time").
We also reject the defendant's argument that the motion judge erred in finding that exigent circumstances supported the police officers' entry into the building once they determined the need to secure a second warrant. See Commonwealth v. Figueroa, 468 Mass. 204, 211 (2014). The delivery of the package known to contain cocaine to the premises of Elite Performance provided probable cause for securing the building. See Commonwealth v. Staines, 441 Mass. 521, 525-526 (2004). To meet the additional requirement of exigent circumstances the Commonwealth must show that "the situation facing the officers [was] such that it was impracticable for them to get a warrant." Commonwealth v. Washington, 449 Mass. 476, 486 (2007), quoting from Commonwealth v. Cast, 407 Mass. 891, 904 (1990). The Commonwealth cannot claim exigency when the failure to secure a warrant stems from the police's own mistakes, unintentional or "contrived," that made the emergency "easily foreseeable." See Commonwealth v. Forde, 367 Mass. 798, 802 (1975) (no exigent circumstances where police had probable cause to obtain warrant several hours before entering the dwelling). Here, Brach organized the police action armed with what he thought was a valid State search warrant. Brach had no way of foreseeing that the State search warrant may have been defective due to his misidentification of the Elite Performance offices when he and Dailey drove by the building at night and that he would need to request a second State search warrant.
The Commonwealth does not dispute that the defendant was entitled to a constitutionally protected reasonable expectation of privacy within the premises of the building, see Commonwealth v. Porter P., 456 Mass. 254, 259 (2010), nor that the first State warrant was defective because it described the wrong building to be searched. See Commonwealth v. Treadwell, 402 Mass. 355, 358 (1988).
However, choosing to secure a building internally instead of securing it from the outside requires "specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken." Commonwealth v. McAfee, 63 Mass. App. Ct. 467, 474 (2005) (McAfee), quoting from Commonwealth v. DeJesus, 439 Mass. 616, 621 (2003) (DeJesus). The presence of both the contraband and the defendant on the premises does not suffice to support this belief. See McAfee, supra at 473-474.
Nevertheless, additional circumstances support the legality of the entry. Before securing the premises, the police had just observed the package containing cocaine being taken into a building that had multiple exits, some of the exits allowing the occupants to flee from the roof to other adjacent buildings in an industrial area. The location of the building in an industrial area, the large amount of cocaine in the delivered package, and the information on previous suspicious deliveries allowed the inference that the drug operation being investigated involved multiple occupants of the building.
In light of this information, the police could have determined, based on objective factors, that securing the building and all its exits from the outside while waiting for the issuance of a valid State search warrant was not feasible without the police alerting the building's occupants to the presence of a large task force, increasing the likelihood that the narcotics would be removed or destroyed. See Commonwealth v. Huffman, 385 Mass. 122, 125 n.6 (1982) ("Exigent circumstances may arise if a defendant becomes aware, or is certain to become aware, of an officer's presence"); Commonwealth v. Lopez, 38 Mass. App. Ct. 748, 749-750 (1995) (surveillance to prevent removal of marked bills from one room to another would invite detection, giving the defendant time to destroy the evidence); McAfee, 63 Mass. App. Ct. at 474 ("physical configuration of the scene [that] made exterior control of the premises, through continued surveillance or otherwise, likely to alert the defendant to police scrutiny" could support applicability of the exigent circumstances exception).
Even if the initial "securing" of the building was impermissible under art. 14 of the Massachusetts Declaration of Rights, evidence acquired in the subsequent search need not be excluded if "later acquired independently by lawful means untainted by the initial illegality." DeJesus, 439 Mass. at 624. Here, the affidavit supporting the second State search warrant described the correct building to be searched -- information that was obtained by the police by simply noting which building the defendant entered -- and did not include any information gleaned from securing the building. Since the information included in Brach's affidavit supporting the second State search warrant, in particular that the package containing cocaine had been delivered and taken into the building by the defendant, is sufficient to establish probable cause for searching the building, the second State search warrant was valid.
We note that contrary to the defendant's arguments, the second State search warrant was not improperly secured because of false statements made by Detective Brach in his application for the second State search warrant. Brach stated that he had not previously applied for the same warrant because the description of the building to be searched changed. The defendant cannot have it both ways: argue that the first State warrant was defective because the description of the wrong building was essential to the warrant's validity but at the same time argue that the two State warrants were not materially different in order to advance a theory of invalidity of the second State warrant.
2. Sufficiency of evidence. The defendant argues that the Commonwealth did not provide sufficient evidence to prove that the defendant knowingly and intentionally possessed the contraband, as required by G. L. c. 94C, § 32E(b). We review under the established Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). For the reasons discussed below, we conclude that the evidence -- although not overwhelming -- adduced by the Commonwealth at trial was sufficient to prove the elements of crime beyond a reasonable doubt.
Drawing inferences that need only be "reasonable and possible," see Commonwealth v. Martino, 412 Mass. 267, 272 (1992), quoting from Commonwealth v. Merrick, 255 Mass. 510, 514 (1926), a reasonable and rational jury could have concluded that the defendant had knowledge of the contraband, based on the circumstantial evidence provided by the Commonwealth. See Commonwealth v. Garcia, 409 Mass. 675, 686 (1991). That the defendant approached Inspector Dailey in the parking lot suggests that he anticipated the delivery of the package. See Commonwealth v. Alcala, 54 Mass. App. Ct. 49, 51 (2002). He signed for the package and took it into the building identified as Elite Performance by a flier at the door. Auto part invoices recovered from the premises connected the defendant to Elite Performance to which the package was addressed. When police officers entered the building within minutes of the delivery, the defendant was coming down the stairs that led directly to the second floor where the package had been opened and left on the floor.
A jury could have drawn the reasonable inference that the defendant anticipated the package's arrival, opened it shortly after receiving it, and thus had knowledge of the cocaine. See Commonwealth v. Aguiar, 370 Mass. 490, 500 (1976). The large amount of cocaine contained in the package could also lead to the common-sense inference that recipients of the package were part of the drug's distribution process and were not selected at random. Ibid.
We note that the jury could infer intent to distribute from the large quantity of cocaine in the package coupled with the discovery of cocaine distribution packaging items in the building and the previous delivery of suspicious packages at the address of Elite Performance. See Commonwealth v. Sinforoso, 434 Mass. 320, 329(2001); Commonwealth v. DePalma, 41 Mass. App. Ct. 798, 802(1996).
Judgment affirmed.
By the Court (Graham, Brown & Sullivan, JJ.,),
Judge Graham participated in the deliberation on this case prior to his retirement.
The panelists are listed in order of seniority.
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Clerk Entered: April 14, 2015.