Commonwealth v. Agosto

428 Mass. 31
CourtMassachusetts Supreme Judicial Court
DecidedJuly 21, 1998
StatusPublished
Cited by13 cases

This text of 428 Mass. 31 (Commonwealth v. Agosto) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Agosto, 428 Mass. 31 (Mass. 1998).

Opinion

Marshall, J.

The defendants were indicted on August 1, 1996, for trafficking in cocaine (twenty-eight to one hundred grams), G. L. c. 94C, § 32E (6),3 and for unlawful possession of heroin with intent to distribute, G. L. c. 94C, § 32 (a). The defendants moved to suppress evidence seized in two warrantless searches of an automobile. The judge allowed the defendants’ motions to suppress the evidence discovered during the second of the two searches, conducted twenty-one days following police seizure of the vehicle. A single justice of this court allowed the Commonwealth’s application for leave to appeal. We transferred the cases from the Appeals Court on our own motion.

We summarize the relevant facts found by the judge, which are not in dispute. The Springfield police were conducting a narcotics investigation in the spring of 1996 with a focus on the defendants Ivette Velez and Mitchell Reyes, including surveillance of their residence, and on defendant Jose Agosto. Prior to the defendants’ arrest and seizure of the vehicle in question, informants had provided information to the police on heroin distribution activities of the defendants and others that had proved reliable. On June 21, 1996, police received and corroborated information that Reyes and Ivette Velez withdrew from a bank $5,000 for a purchase of two ounces of heroin in New York. Later that same day, the police received information that Reyes, Agosto, and a third unnamed man were traveling that night to New York in a Buick automobile, registered to Ivette Velez, to make the heroin purchase and would return early the next morning. As the Buick left Springfield that evening, the police followed it as far as Hartford, Connecticut. At about 4:10 a.m., the police observed and followed the Buick as it returned to the Springfield area and stopped it close to Reyes’s residence. In addition to Reyes and Agosto, the defendant Dominick Velez was in the Buick. A police officer observed a clear packet of heroin on the rear floor of the Buick. Reyes, Agosto, and Dominick Velez were arrested. Seven more [33]*33glassine packets of heroin were discovered in a search of Ag-osto at the police station.4 In the trunk of the vehicle the police found many more bags of packaging materials similar to those used to package the eight bags of heroin that were found.

After the initial search, the Buick was secured in a police facility, not accessible to the public, and remained in the possession of the police at all relevant times thereafter. A prosecutor in the Hampden County district attorney’s office told police that a warrant was not needed to conduct continuing searches. The vehicle was searched at least ten times. Despite trained police dogs indicating the presence of drugs in the vicinity of the dashboard during these searches, no additional drugs were discovered until July 12, 1996. After receiving information from two informants that two ounces of heroin were still in the Buick, an officer finally recovered sixty grams of heroin from a vent behind a firewall under the dashboard.

Ivette Velez contacted several policemen in an unsuccessful effort to have the Buick returned to her, but was told that the vehicle was seized and that the police had begun forfeiture proceedings. At some time while holding the vehicle, the police contacted the district attorney to begin forfeiture proceedings. Some six weeks after the discovery of the heroin in the dashboard on July 12, the Commonwealth filed a motion for a preliminary order to secure and hold the Buick. The preliminary order was not granted until October 22, 1996.

The Commonwealth argues here as it did below that the war-rantless search on July 12, 1996, was permissible under the automobile exception to the warrant requirement. In addition, it raises on appeal two arguments related to the forfeiture of the Buick: because the owner, Ivette Velez, was informed of the police intention to commence forfeiture proceedings, she lost any expectation of privacy in the vehicle that she otherwise may claim; and that we should recognize an exception to the warrant requirement for investigatory searches of vehicles seized pursuant to the forfeiture statute, G. L. c. 94C, § 47.

In Commonwealth v. Markou, 391 Mass. 27, 29-31 (1984), we thoroughly summarized the rationale, the constitutional basis, and the contours of the automobile exception to the requirement [34]*34for a search warrant. When there is probable cause to search an automobile stopped on a highway, an immediate search is constitutionally permissible. Id. at 29, citing Carroll v. United States, 267 U.S. 132 (1925). The inherent mobility of an automobile is the exigent circumstance that justifies a warrant-less search at the time of a vehicular stop. See Commonwealth v. Motta, 424 Mass. 117, 124 (1997). The warrantless search continues to be permissible if the police, in the interest of their safety, wait to search a vehicle until after it has been seized and secured and removed to the safe environs of the police station, even though no exigent circumstances then prevail. Markou, supra at 29-30, citing Chambers v. Maroney, 399 U.S. 42 (1970). Nonetheless, we have not endorsed “giving the police carte blanche to search without a warrant any time subsequent to a valid stop.” Id. at 30-31, citing with approval State v. Quinn, 290 Or. 383 (1981) (disallowing search twenty-two hours after vehicle impounded). Rather, we have made clear that an “unreasonable delay at the police station will render invalid an otherwise valid search.” Motta, supra at 125. See Commonwealth v. Bakoian, 412 Mass. 295, 304-305 (1992); Commonwealth v. Lara, 39 Mass. App. Ct. 546, 548-549 (1995).5

The Commonwealth argues, in effect, that, because there was probable cause to stop and search the Buick on June 22, 1996, and because probable cause to suspect heroin hidden in the Buick continued after that date and was reinforced by further informant tips and by detection of drugs by police dogs, the constitutional requirement of a search warrant was indefinitely suspended by an ongoing automobile exception. The defendants do not contest that the police continued to have probable cause while holding the Buick. It is not the existence of probable cause itself that justifies an exception to the warrant requirement. With such probable cause, the police had a basis for a warrant. In holding the vehicle for an indefinite time, the police also had a “plain and ample” opportunity to obtain a warrant. Bakoian, supra at 304, quoting Commonwealth v. Bongarzone, [35]*35390 Mass. 326, 351 (1983). There were no exigent circumstances or safety concerns — the underlying theories justifying warrant-less searches of vehicles on the highway and at the police station immediately after a vehicle’s seizure — nor were there any other sufficient reasons for the police not to have secured a warrant before conducting at least ten additional searches over a span of twenty-one days. We concur with the judge’s ruling of law that such a delay was too long to have “dispensed with the warrant requirement, and to allow reliance on the ‘automobile’ exception.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Joseph Piard
Massachusetts Appeals Court, 2025
Commonwealth v. Rosario-Santiago
Massachusetts Appeals Court, 2019
Commonwealth v. Davis
114 N.E.3d 556 (Massachusetts Supreme Judicial Court, 2019)
Commonwealth v. White
61 N.E.3d 423 (Massachusetts Supreme Judicial Court, 2016)
Commonwealth v. Eggleston
903 N.E.2d 1087 (Massachusetts Supreme Judicial Court, 2009)
Commonwealth v. Eggleston
881 N.E.2d 1174 (Massachusetts Appeals Court, 2008)
Commonwealth v. Bettencourt
856 N.E.2d 174 (Massachusetts Supreme Judicial Court, 2006)
Commonwealth v. Lugo
831 N.E.2d 360 (Massachusetts Appeals Court, 2005)
Commonwealth v. Negron
19 Mass. L. Rptr. 596 (Massachusetts Superior Court, 2005)
Commonwealth v. Nicholson
792 N.E.2d 124 (Massachusetts Appeals Court, 2003)
Commonwealth v. Dolby
738 N.E.2d 1147 (Massachusetts Appeals Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
428 Mass. 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-agosto-mass-1998.