Commonwealth v. Caraballo

9 Mass. L. Rptr. 334
CourtMassachusetts Superior Court
DecidedDecember 30, 1998
DocketNo. 9810701
StatusPublished

This text of 9 Mass. L. Rptr. 334 (Commonwealth v. Caraballo) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Caraballo, 9 Mass. L. Rptr. 334 (Mass. Ct. App. 1998).

Opinion

Burnes, J.

INTRODUCTION

The defendants Eugenio Caraballo (“Caraballo”) and Victor Samboy (“Samboy”) move to suppress the controlled substances, pagers, money, cellular phone, two small satchels and one motor vehicle seized by the Boston Police Department on April 22 and 23, 1998. The defendants say that there was no probable cause to arrest them and no probable cause to seize the automobile in which the drugs, money and satchels were found. In addition, the defendants challenge the warrant which was secured and executed by the Boston Police Department in the early morning hours of April 23, 1998. For the following reasons, the court denies this motion.

FINDINGS OF FACT

Boston Police Officers William J. Gross, Thomas Menino and Detective A1 Pinto testified at the hearing on the motion to suppress. The Court finds the following facts based on that testimony and the inference which may fairly be drawn from the credible testimony.

On April 22, 1998, all of the officers were assigned to the Boston Police Department’s Drug Control Unit. That evening, Officer Gross was patrolling in the area of Neponset Circle and Gallivan Boulevard. He was working with Officer Felipe Colon; both were in plainclothes. They were in the area because they had received anonymous tips that there was drug activity in the area. The area, although a generally safe area of Boston, was known as an area where drugs were distributed. The Boston Police had made drug arrests in the Walgreen’s parking lot, the tuxedo shop and the car wash. All these locations are in or near the block where the suspected drug deal took place in this case. Gross had made five to six drug arrests in that area in the 13 months he had been assigned to the Drug Control Unit. The area is at the intersection of or easily accessible from a number of major traffic arteries— Gallivan Boulevard, Neponset Street, Quincy Shore Drive and the Southeast Expressway.

Officer Menino was in a separate Boston Police Department undercover car. He, too, was in plain clothes. Officer Menino has been on the Boston Police Force in the Drug Control Unit for two and one-half years, has made hundreds of drug arrests, has observed many drug purchases and has himself made undercover drug purchases. He has been qualified as an expert on narcotics purchases in several courts of the Commonwealth.

Officer Menino was called to the Neponset Circle area by other members of his team to watch a vehicle. As he circled the block of Neponset Street, Gallivan Boulevard, Hallet Street and Minot Street, he noticed, on his second circle, a black pick-up truck (not the vehicle he had been called to watch) parked at the corner of Hallet and Minot Streets. He turned right onto Minot Street and parked on the opposite side of the street to watch the pick-up truck. His attention had been drawn to the truck because the occupants seemed interested in him as he drove past them. Within a few minutes, a blue Pontiac Bonneville came up Hallet Street passed the pick up truck, turned right onto Minot Street from Hallet Street and parked on Minot Street at the corner of Hallet Street. The pick-up truck immediately left its corner on Hallet Street, turned right onto Minot Street and parked directly in front of the Pontiac. The passenger in the Pontiac got out and ran up to the passenger’s side of the pickup truck. Menino could see hands moving back and forth. He could see the hands of the passenger from the Pontiac go into the window of the pickup truck. Menino could see the occupants of both vehicles and observed their actions. He could not see anything below their chests because the pick-up truck obstructed his view. He did not see any items that [335]*335exchanged hands. The passenger from the Pontiac then ran back to the car and the car pulled away immediately. The entire event took about 30 seconds. The natural light was still good, since it was 7:30 in the evening toward the end of April. Both vehicles continued down Minot Street to Neponset Street. The pick-up truck turned right onto Neponset Street and the Pontiac turned left onto Neponset Street.

Menino radioed other members of the Unit. He said he had seen something that looked like a drug transaction. He said he would follow the blue car and others should follow the pick-up truck. Officers Gross and Colon were told to follow the pick-up truck. They were told there were two white males in it. However, instead of following the pick-up truck, Officer Colon, who was driving the vehicle in which Officer Gross was a passenger, drove out in front of the pick-up truck in the same direction as it proceeded down Neponset Street. The Officers stopped in front of the pick-up truck. The pick-up truck stopped. The passenger ran back towards the comer of Minot Street. A scuffle took place during which the passenger hit Officer Colon and tried to knee Officer Gross in the groin. The passenger, known to Officer Gross as a Mr. Dunn, threw a white packet in the sewer drain. The officers could see it but could not immediately reach it since it was approximately five or six feet below ground level. The package was sitting on some dry leaves and dirt.

The officers pried the grated sewer cap off with a crow bar. Officer Gross held onto another officer by the legs so he could retrieve the packet. The white packet, once retrieved, turned out to be ten glassine bags held together by a black mbber band. The bags contained a white powder which appeared to be heroin. The time between stopping the truck and retrieving the package from the sewer took about five minutes.

These officers arrested the passenger and driver of the pick-up truck. They radioed Officer Menino to tell him they had recovered what appeared to be drugs.

Menino, in the meantime, had been following the blue Pontiac Bonneville. By the time he received the radio transmission informing him that what appeared to be dmgs had been retrieved from the sewer, having been thrown there by the passenger of the pick-up, he was on Bowdoin Street in Dorchester. He then activated his lights and stopped the Pontiac. He was intending to arrest the occupants of the Pontiac at that time.

Other officers, SargentThomas and Detective Pinto, joined him.1 The two defendants, Caraballo and Samboy, were placed in handcuffs and taken to the side of the road. The officers did a quick search of the car and found nothing. They did not find any drugs in Caraballo’s or Samboy’s possession. The officers recovered $62 from Caraballo, however, Samboy had no money in his possession.

While Menino was following the Pontiac, the driver appeared to obey .the driving laws. The car was not speeding, not running any traffic lights and stopped promptly when Menino put on his blue lights and siren. Menino had never seen Samboy or Caraballo nor had he seen the blue Pontiac before. He learned later that the car did not belong to either of them.

The Pontiac was not towed from the scene but driven to the police station by a police officer. This is the standard operating procedure used when the police intend to search a vehicle once it is brought to the station.

Back at the police station, Officer Gross was the booking officer for both defendants. The personal property recorded inclúded a pager, a Nextel phone and $62 from Caraballo.

Detective Pinto searched the vehicle. He found nothing unusual. Officer Menino then went and searched the vehicle. He saw some duct tape behind the grill in the dashboard. He took a flashlight and looked behind the grill, seeing some air fresheners.

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Bluebook (online)
9 Mass. L. Rptr. 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-caraballo-masssuperct-1998.