Commonwealth v. Avellar

875 N.E.2d 539, 70 Mass. App. Ct. 608, 2007 Mass. App. LEXIS 1153
CourtMassachusetts Appeals Court
DecidedOctober 31, 2007
DocketNo. 06-P-644
StatusPublished
Cited by9 cases

This text of 875 N.E.2d 539 (Commonwealth v. Avellar) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Avellar, 875 N.E.2d 539, 70 Mass. App. Ct. 608, 2007 Mass. App. LEXIS 1153 (Mass. Ct. App. 2007).

Opinion

Perretta, J.

This matter is before us on the Commonwealth’s interlocutory appeal, allowed by a single justice of the Supreme Judicial Court pursuant to Mass.R.Crim.P. 15(b), as appearing in 422 Mass. 1501 (1996), after a Superior Court judge allowed the motions of the defendants, Jose F. Avellar, David Medeiros, and David J. Vieira, to suppress physical evidence and the inculpatory statements of Vieira. The seizure of the physical evidence was predicated upon the stop of a motor vehicle, which led the police to search Vieira’s apartment, where he then made in-culpatory statements. While accepting the judge’s detailed and comprehensive findings of fact, we find error in his conclusions of law leading to suppression of the evidence seized from the motor vehicle and Vieira’s apartment. See Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002); Commonwealth v. Vesna San, 63 Mass. App. Ct. 189, 190 (2005).

1. Procedural background. After their indictments in Superior Court, the defendants sought to suppress all physical evidence of drugs, drug dealing, and drug manufacturing seized after the stop of a motor vehicle driven by Avellar, occupied by Medeiros, and owned by Vieira. The three defendants also sought to suppress Vieira’s inculpatory statements made during the search of his apartment.2 However, the three defendants did not move for severance. See Bruton v. United States, 391 U.S. 123 (1968).

2. The facts as found. On August 6, 2003, at about 11:30 a.m., New Bedford police Detective Dennis Ledo received a telephone tip from a confidential informant known to him, who reported that two men, driving a black Toyota automobile bearing a specific registration number, had purchased a large quantity of inositol at a health-food store located in the Kempton Street area of New Bedford. Ledo then ascertained that the registered owner of the car was Vieira, who resided in apartment C at 79 Oesting Street and who was known to Ledo.

Based on that information, Ledo and State Trooper Michael [610]*610Smith began surveillance of 79 Oesting Street and positioned themselves outside the rear of that building.3 From that vantage point they were able to see two men, later identified as Avellar and Medeiros, get into the black Toyota. The officers followed the car to a pizza parlor and back to 79 Oesting Street, where they saw the two men return to the front of that address.

Continuing their surveillance, the officers next saw a trash truck enter the parking lot, tip a dumpster, empty its contents, and drive away. About forty-five minutes later, the officers saw Avellar and Medeiros again walking toward the black Toyota. They also saw that before the men got into the car, Avellar put two large garbage bags into the dumpster and one smaller bag in the trunk of the Toyota. The officers then followed the Toyota as it drove away from 79 Oesting Street, and they stopped the vehicle when they observed the driver violate G. L. c. 90, § 14B.4

Upon approaching the Toyota, Smith smelled marijuana and saw, in plain view on the console area of the vehicle’s interior, a clear plastic bag containing what he believed, based upon his training and experience, to be marijuana. The occupants of the vehicle, Avellar and Medeiros, were ordered from the car. Controlled substances were found on each. They were arrested, advised of their Miranda rights, and placed in separate police cruisers. Although Avellar remained silent, Medeiros chose to speak. In response to questioning, he told the police that Vieira resided in apartment C at 79 Oesting Street; that he, Medeiros, did not have keys to that apartment; and that, in any event, no one was there.

The judge concluded that the stop of the Toyota was a pretext and suppressed all of the evidence therein found. However, the judge made additional findings in the event that this conclusion was error. The judge found that, if the stop of the vehicle were legal, the search of the car and arrest of Avellar and Medeiros would have been justified.

[611]*611After the arrest of Avellar and Medeiros, Ledo and Smith returned to 79 Oesting Street and looked into the dumpster in which they had previously observed Avellar put two trash bags. There were only two trash bags in the dumpster, and the officers retrieved them. It was then about 3:45 p.m. The judge determined that because there was no evidence to show the size of the dumpster or whether it was locked or used exclusively by the residents of apartment C, the defendants had failed to sustain their burden of showing that Vieira had any expectation of privacy in the discarded bags.5

After removing the bags from the dumpster, the officers drove to a parking lot located in the same section of the city as Vieira’s apartment. There they opened the bags and examined the contents. They found a receipt dated August 6 for a gallon of acetone, a substance which one of the officers knew to be used in rerocking cocaine; numerous empty containers of inositol powder; clear plastic bags with the comers tom off that would indicate the packaging of drugs for retail sales; larger plastic bags containing a residue that was field tested and found to be marijuana; and other plastic bags having an odor of acetone and containing a white residue which field tested positive for cocaine. Field testing of the drags was completed by 4:00 p.m., at which time the officers requested assistance. The assembled group of about ten or more officers then proceeded back to Oesting Street without first obtaining a search warrant.

Arriving at 79 Oesting Street at about 4:30 p.m., the officers walked through an unlocked front door. They next came to a locked security door where they detected a strong odor of acetone, from which Ledo inferred that cocaine was being rerocked within the building. Attempting to gain entry through the security door, he pressed the buzzers for apartments A, B, and D. When the officers received no response, they broke the latch on the security door and entered a common hallway. Seeing that apartments A and B were on the first floor, they proceeded to the second floor, where apartments C and D were situated on opposite sides at the top of the stairs. There was a strong odor of acetone at the door to apartment C, and according to Ledo and Smith, the officers could hear voices, later determined to be [612]*612coming from a television, and movement within the unit. The judge found that the “only noises emanating through the door” amounted to “someone walking within the apartment” rather than a “commotion.”

Ledo knocked on the door of the unit twice and, receiving no response, kicked open the door. Upon entering the apartment, the officers saw Vieira was in the living and dining room area of the apartment. There was a quantity of cash on a coffee table in the living room area. The officers handcuffed and placed Vieira on a couch. Ledo gave Vieira his Miranda warnings, and Vieira stated that he did not wish to speak with the officers. The officers fanned out and made a “protective sweep” to determine whether anyone else was in the apartment.

In searching for other occupants of the apartment, Ledo passed through the kitchen, where he looked in the oven door of a range top stove and saw cocaine being cooked.6

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Cite This Page — Counsel Stack

Bluebook (online)
875 N.E.2d 539, 70 Mass. App. Ct. 608, 2007 Mass. App. LEXIS 1153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-avellar-massappct-2007.