Commonwealth v. Cepeda

10 Mass. L. Rptr. 515
CourtMassachusetts Superior Court
DecidedSeptember 13, 1999
DocketNo. 102112
StatusPublished

This text of 10 Mass. L. Rptr. 515 (Commonwealth v. Cepeda) 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. Cepeda, 10 Mass. L. Rptr. 515 (Mass. Ct. App. 1999).

Opinion

Hely, J.

I. Introduction

Each defendant is charged with trafficking in cocaine, 200 grams or more. The defendant Pagan has moved to suppress the pair of kilogram cocaine bricks found in his backpack. Pagan’s motion also seeks suppression of his statements to the police, claiming that the statements were the fruit of an unlawful search. At the motion hearing Pagan waived any claim that his statements were involuntary or obtained in violation of his Miranda rights.

The defendant Cepeda moved to join in Pagan’s motion. Cepeda’s motion will be treated as a motion to suppress. Both defendants’ motions are denied because the police were acting lawfully when they opened Pagan’s backpack and cut into the drug bricks.

The court finds that the testimony of Officers Randolph and Coady was truthful and accurate on all material points. The court’s findings are based on the testimony, the exhibits, and the reasonable inferences that the court has drawn from the evidence.1

II. Facts

A resident of 425 West Elm Street called the Brockton Police station and reported that there was a breaking and entering in progress at that address. The date was April 11, 1999. The time was 11:30p.m. The call came in on the 911 line. The resident reported that two Hispanic males were trying to break into the front windows. One was wearing a bulky jacket and the other had a large bag in his hand. This information was relayed by radio to Officers Antonio Randolph and James Coady.

The officers drove immediately to the address. 425 West Elm Street is a three story apartment building, part of a complex of similar buildings. There are four or five apartments on each floor. The officers knew that the Brockton Police frequently received calls and made arrests in this building and in the vicinity for offenses such as assaults, domestic violence and weapons and drug violations.

When the officers arrived, they saw no one in front of the building. They entered the front security door by pushing the residents’ buzzers until someone buzzed them in. Officer Randolph went up the common stairway and saw a black nylon gym bag on the second floor near the stairway. He thought this might be the bag reported to have been held by one of the burglars. He then saw the defendant Angel Pagan sitting on the stairway between the second and third floors. Mr. Pagan is an Hispanic male. He had a backpack on his back.

Officer Randolph reasonably suspected from all the circumstances that he was confronting one of the two men who had been seen trying to break into the front windows. He instructed Mr. Pagan to stand up. Mr. Pagan is six feet tall and weighs 225 pounds. Because of the frequency of crime in the neighborhood, the nature of the report and all the circumstances, Officer Randolph decided to question the defendant and to conduct a pat-frisk of his person and his backpack for weapons. He reasonably feared that the defendant might have on his person or in the backpack either a weapon or a burglary tool or instrument that could be used as a weapon. He instructed the defendant to take off his backpack, and he helped him do so. Officer Coady came up to this location on the stairway at about this time.

Officer Randolph pat-frisked the defendant for weapons and found none. He asked the defendant for identification. The defendant said that he was a police officer in Puerto Rico. The defendant and Officer Randolph spoke to one another in English. Officer Randolph again asked the defendant for identification, saying that if he was a police officer he should have some identification. The defendant replied that his identification was in the backpack and he pointed to the backpack.

Officer Coady opened the large main compartment of the backpack and looked inside. He saw a hard, heavy brick-shaped object wrapped in silver-gray duct tape. He took it out. Based on his military experience and training, Officer Coady’s first thought was that this was a bomb. He said, “What is this, a bomb?” The defendant did not reply. Officer Coady then saw that there was a second duct-taped wrapped brick in the backpack immediately under the first one. He took out the second brick. It was identical to the first.

Each brick was about eight inches by four inches by two inches. They were oblong shaped, but their corners and edges were rounded. The duct tape en[516]*516tirely covered all the surfaces of the bricks. By feel, Officer Coady thought their combined weight was about six pounds.

Officer Randolph and Officer Coady had been police officers for about two and a half years. They had each participated as uniformed officers in dozens of previous drug arrests and investigations. The City of Brockton provides plenty of opportunity for such experience. Both officers had attended several training programs on illegal drugs. The training covered common methods of packaging, transporting and distributing illegal drugs. In their training, both officers had seen photographs and demonstrations of bricks of drugs that were identical to the bricks from the backpack in size and in their duct tape wrappings. Officer Coady had actually handled a duct tape wrapped drug brick in his training that had the exact same outward appearance, size and feel.

When Officer Coady took the bricks out and the defendant did not respond to his bomb question, he remembered handling an identical drug brick in his training. He had never seen anything like these bricks except the drug bricks shown to him in his police training. When Officer Randolph saw the bricks from the backpack, he immediately thought they were kilograms of cocaine. Officer Randolph told Officer Coady that he thought the bricks were drugs. Officer Coady agreed.

Officer Randolph gave Officer Coady a pocket knife. He told him to cut into the bricks to confirm that they were drugs. Officer Coady made a one and a half inch cut into the first brick. With this cut he could see under the duct tape a layer of Vicks Vapo-Rub, a thin layer of clear, tinted plastic wrap, and a solid brick of a white substance that had all the appearances of cocaine. The officers knew from their training that drug dealers sometimes use Vapo-Rub and similar substances in their packaging to keep police dogs from smelling the drugs. Officer Coady made a similar cut in the second brick and saw the same thing.

The officers arrested Mr. Pagan for possessing the cocaine. At the bottom of his backpack, they found his wallet and identification. During the course of the arrest, the officers looked into the black gym bag that someone had left on the floor near the stairs. It contained nothing of evidentiary significance, and they left it there, Mr. Pagan told the officers that the gym bag belonged to his friend who had gone to use a telephone.

At the police station, Mr. Pagan said that he and Jose Cepada had taken a bus from White Plains, New York, to Boston and a taxi to Brockton. He said that Cepeda’s sister lived in Brockton and that Cepeda had gone to call his sister before the officers arrived. Further police investigation revealed that at some time after the officers left with Pagan, Cepeda returned to the apartment building and retrieved his gym bag. Mr. Cepeda was arrested in Boston about four hours later.

III. Additional Fact Findings and Rulings

Officer Coady’s opening of Mr. Pagan’s backpack was lawful as part of a threshold inquiry weapons search of the area within the suspect’s immediate access.

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Bluebook (online)
10 Mass. L. Rptr. 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-cepeda-masssuperct-1999.