NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-209
COMMONWEALTH
vs.
DAVID CLASS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, David Class, entered a conditional guilty
plea to two counts of trafficking in a controlled substance in
violation of G. L. c. 94C, § 32E (b). 1 Having reserved his
appellate rights, see Mass. R. Crim. P. 12 (b) (6), as appearing
in 482 Mass. 1501 (2019); Commonwealth v. Gomez, 480 Mass. 240,
252-253 (2018), the defendant appeals from the denial of (1) an
omnibus motion to suppress the fruits of electronic surveillance
of the defendant and (2) a motion to suppress the fruits of a
series of searches. We affirm.
1The Commonwealth entered a nolle prosequi on three additional charges of unlawful possession of a controlled substance with intent to distribute. Background. We summarize the facts as found by the motion
judges, 2 "supplementing with additional facts as necessary from
testimony and evidence that the judge[s] implicitly credited."
Commonwealth v. Lariviere, 98 Mass. App. Ct. 440, 441 (2020).
1. The November 20, 2014 wiretap warrant application. On
November 20, 2014, Special Agent John Barron of the United
States Drug Enforcement Administration (DEA) and Detective
Thomas Scanlon of the Springfield police department sought, and
a Superior Court judge authorized, a wiretap for two telephones
used by the defendant. In their joint affidavit, Special Agent
Barron and Detective Scanlon (affiants) indicated that the
defendant, who they believed was involved in trafficking heroin
and cocaine, was using the two target telephones to "communicate
with key members of his organization, customers and source(s) of
supply for narcotics." The affidavit detailed the affiants'
2 In November 2016, the defendant filed his omnibus motion to suppress. A judge of the Superior Court (first motion judge) held a nonevidentiary hearing on that motion in March 2017. The defendant then filed an amended motion to suppress raising additional issues related to a lost or missing warrant return. The first motion judge denied both motions without an evidentiary hearing. The defendant then filed an interlocutory appeal, and the Supreme Judicial Court remanded, ordering an evidentiary hearing be held on the nonwiretap aspects of the motion to suppress. From May through June 2019, a different judge (second motion judge) held a series of evidentiary and nonevidentiary hearings. Following those hearings and the filing of a second amended motion to suppress, the second motion judge made findings of fact and denied the motion.
2 investigatory efforts, including the use of a confidential
informant (CI) and information learned from a prior
investigation of another individual, Daniel Burgos.
On November 6, 2014, the CI told law enforcement that the
defendant and another individual, Vito Resto, were partners in
drug trafficking activities. The CI had known the defendant for
years and previously purchased illegal drugs from him. The
affiant believed that Burgos was the main supplier of heroin for
the defendant and Resto and that Eddie Santiago was their main
supplier of cocaine. The next day, November 7, 2014, law
enforcement intercepted a call between Burgos and his girlfriend
during which they discussed that the defendant was going to want
three to four boxes of heroin.
At the direction and control of law enforcement the CI
contacted the defendant on a target telephone, first to arrange
to pay a debt and then to arrange a controlled buy of cocaine
from the defendant. On November 10, 2014, law enforcement
overheard the CI and the defendant discuss the future purchase
of cocaine by the CI from the defendant and about Resto asking
the defendant for help. On November 13, 2014, the CI called the
defendant on one of the target telephones to order cocaine and
arrange the pickup. Before the pickup, law enforcement searched
the CI for contraband and provided the CI with a recording
device and $1,200. Law enforcement observed the CI meet with
3 the defendant in his truck at the agreed upon location and heard
a conversation between the CI and the defendant consistent with
a drug transaction. After the transaction, the CI handed over
to law enforcement the recording device and a baggie containing
a substance which tested positive for cocaine. When law
enforcement searched the CI again, no other contraband or money
was found. 3
Based on all of the information obtained through a variety
of investigative techniques, 4 the Superior Court judge authorized
the wiretap. Investigators then began monitoring the
defendant's calls on the target telephones.
2. Denton Circle package. From the wiretap, law
enforcement learned that a package suspected to contain drugs
would be delivered to 31 Denton Circle in the city of
Springfield. On December 2, 2014, Special Agent Barron and
other law enforcement officers established surveillance of 31
Denton Circle. The target package appears to have been
delivered to the Denton Circle address at approximately 10:19
3 The CI later reported going with the defendant to wire money to William Santiago in Puerto Rico and that the defendant called Eddie Santiago to ask the name of the recipient. The defendant asked the CI to put the wire transfer in the CI's name.
4 The affiants also relied upon information learned from other agencies, toll records, vehicular global positioning system devices, grand jury subpoenas, and search warrants.
4 A.M. At the same time, DEA Agent Scott Smith received
information from law enforcement monitoring the wiretap
suggesting that the package had been delivered, but was missing.
Agent Smith then searched the vicinity for a United Parcel
Service (UPS) driver. Agent Smith found a UPS driver, but not
the driver who had delivered the package at Denton Circle. That
driver contacted his supervisor. The supervisor advised that
the package was recently reported lost or stolen. The
supervisor contacted the UPS driver who delivered the package
and asked that driver to retrieve the package, which the driver
did. The package was returned to the West Springfield UPS
distribution hub. The second motion judge found that "[w]hile
UPS's collection of the package was likely due, in large part,
because of Smith's role as a DEA agent, the target package
retrieval was not requested, directed or ordered by law
enforcement."
At the UPS facility, a certified narcotics detection dog
identified the target package from two separate panels of eight
packages. Special Agent Barron then took the package overnight
to secure a warrant the next day. On December 3, 2014, police
prepared a signed affidavit and warrant application to open the
package. The warrant was issued by the same judge who
authorized the wiretap, and police opened the package in that
judge's lobby. The package contained a kilogram of cocaine.
5 Officer Carey McKenzie completed the warrant return and filed it
with the Superior Court clerk's office. Law enforcement
subsequently obtained renewals of the wiretap warrant on
December 4, December 16, and December 30. None of the renewal
applications referred to the 31 Denton Circle package. The
defendant was not charged with any crimes as a result of the
Denton Circle package.
3. Brookline Avenue package and the defendant's arrest.
On January 14, 2015, law enforcement learned from intercepted
calls of another package suspected to contain drugs for the
defendant to be delivered to 36-38 Brookline Avenue in
Springfield. The defendant arrived in front of 36-38 Brookline
Avenue in a vehicle while police were surveilling the location.
The defendant's codefendant Jose Sierra exited the building with
a manila envelope style package and got into the defendant's
vehicle. Police then approached the vehicle and placed the
defendant and Sierra in custody. Police conducted a patfrisk of
the defendant, found "crack" cocaine, powder cocaine, and
heroin, and found additional cocaine in the vehicle. Police
placed the defendant and Sierra under arrest. The defendant
signed a search warrant waiver consenting to a search of his
Empire Street residence, and police found money and cocaine at
that location. Officer McKenzie obtained a search warrant for
6 the package seized from Sierra, which contained a kilogram of
cocaine.
Discussion. 1. Wiretap application. The defendant argues
that the affidavit submitted in support of the wiretap
application failed to establish probable cause and that normal
investigative procedures would have sufficed. "A wiretap
warrant may only issue '[u]pon a showing . . . that there is
probable cause to believe that a designated offense has been, is
being, or is about to be committed . . .[,]'" Commonwealth v.
Long, 454 Mass. 542, 555 (2009), quoting G. L. c. 272,
§ 99 E (2), and that a nexus exists between the offense and
organized crime. See id. at 556; Commonwealth v. D'Amour, 428
Mass. 725, 735 (1999). In addition, a warrant authorizing a
wiretap must have "a showing by the applicant that normal
investigative procedures have been tried and have failed or
reasonably appear unlikely to succeed if tried." G. L. c. 272,
§ 99 E (3). See Commonwealth v. Fenderson, 410 Mass. 82, 83
(1991). Where, as here, a motion judge relies solely on
documentary evidence, we review both the judge's findings of
fact and conclusions of law de novo. Commonwealth v. Johnson,
481 Mass. 710, 714 (2019), quoting Commonwealth v. Monroe, 472
Mass. 461, 464 (2015).
a. Probable cause. The defendant asserts that the
Commonwealth failed to establish probable cause because it
7 relied, in part, on faulty information from an unreliable CI.
"When a search warrant affidavit is based on information
supplied from an informant, art. 14 [of the Massachusetts
Declaration of Rights] requires the [judge] to apply the
familiar Aguilar-Spinelli standard, which requires that an
affidavit based on information from a CI establish the CI's
basis of knowledge and veracity." Commonwealth v. Ponte, 97
Mass. App. Ct. 78, 81 (2020). See Spinelli v. United States,
393 U.S. 410, 415 (1969); Aguilar v. Texas, 378 U.S. 108, 114
(1964); Commonwealth v. Upton, 394 Mass. 363, 374-376 (1985).
The defendant does not challenge the basis for the CI's
knowledge, thus at issue is only whether the affidavit contained
enough information to establish the CI's veracity.
The veracity prong of the Aguilar-Spinelli standard may be
met by showing "some of the underlying circumstances from which
the affiant concluded that the informant was 'credible' or his
information 'reliable . . . .'" Upton, 394 Mass. at 375.
Although here the CI did not have an established history of
providing information that led to arrests and seizures of
narcotics as is typical to prove veracity, see Commonwealth v.
Luce, 34 Mass. App. Ct. 105, 108 (1993) ("most common indicator
of 'veracity[]' [is] a history of dispensing information to the
government which led to convictions or seizure of narcotics"), a
8 supervised controlled buy can compensate for any deficiencies.
See Commonwealth v. Valdez, 402 Mass. 65, 71 (1988).
In this case, the veracity test was satisfied when the CI
performed a controlled buy under the supervision of the police.
The warrant application described in detail how the CI, under
police supervision, planned and executed a controlled buy with
the defendant. This included the CI, on November 13, 2014,
under direction and control of the police, calling the defendant
and coordinating with the defendant the location and time to
purchase the cocaine. The police equipped the CI with a
recording device prior to the controlled buy, searched the CI
for contraband, and supplied the CI with the necessary money for
the purchase. The police then directly observed the CI meet the
defendant at the specified location in a vehicle to purchase the
cocaine and listened via the recording device to a conversation
between the CI and the defendant that was consistent with a drug
transaction. Finally, the police met with the CI at a
predetermined location immediately following the transaction and
received a bag from the CI that contained a substance later
verified to be cocaine. Under these circumstances, law
enforcement's direction, control, and observation of the entire
process of the CI purchasing the cocaine from the defendant
9 establishes the CI's veracity under this prong. 5 See
Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 787-788 (2009)
("a properly monitored controlled purchase of illegal drugs
provides sufficient corroborating evidence to overcome any
shortfalls in meeting the constitutional reliability
requirements imposed on confidential informants"). Thus, the
controlled buy executed by the CI, when considered in light of
the defendant's previous involvement in DEA investigations 6 and
the recorded conversation of Burgos mentioning the defendant's
desire to purchase multiple boxes of heroin, provide sufficient
facts for the issuing judge to find probable cause.
b. Necessity. Likewise, the defendant's argument that the
Commonwealth was unable to show that the wiretap was necessary
due to a failure of normal investigative procedures is
5 Even if the CI inflated the amount of money the CI owed the defendant and kept the difference for himself, that lie does not undermine the controlled buy of narcotics.
6 We recognize that the affiant swore that the defendant faced charges of trafficking 200 or more grams of cocaine and incorrectly stated that the charges were "dropped due to evidence tampering issues within the Massachusetts State Crime Lab." The Commonwealth concedes the dismissal was for lack of probable cause. However, the defendant's codefendant's case was dismissed due to evidence tampering at the lab. In any event, the defendant does not challenge two other drug charges described in the affidavit: (1) that the defendant also was arrested in New Jersey "after making several sales of multi-ounce quantities of cocaine and "crack" cocaine to a [CI]" and, (2) that the defendant "was arrested in July of 2013 on charges of trafficking 36 [or more] grams of a controlled substance."
10 unavailing. The necessity requirement for a wiretap warrant "is
meant to assure that wiretapping is not resorted to in
situations where traditional investigative techniques would
suffice to expose the crime. . . . In determining whether the
Commonwealth has met its burden, the affidavit should be read in
a practical and commonsense manner" (quotations and citations
omitted). Fenderson, 410 Mass. at 83-84.
The Commonwealth submitted a thirty-two page affidavit
detailing the measures already taken to investigate the
defendant, including physically surveilling the defendant, using
a confidential source, toll record analysis, and GPS
surveillance. Although these methods did produce results,
"[t]he Commonwealth need not show that traditional investigative
techniques were wholly unsuccessful or that the police had
exhausted all other investigative procedures before filing its
application for a warrant authorizing a wiretap." Fenderson,
410 Mass. at 83, quoting Commonwealth v. Wilson, 405 Mass. 248,
250 (1989). The affidavit made clear that traditional
investigatory methods, such as physical surveillance, had to be
limited because of the defendant's extensive knowledge of law
enforcement techniques. The affidavit established that those
methods alone were thus incapable of "establish[ing] the
necessary elements" of the operation that needed to be
surveilled. Based on our review of the affidavit, we are
11 satisfied that the facts were "'minimally adequate' to support
the findings made by the issuing judge." D'Amour, 428 Mass. at
736, quoting United States v. Smith, 726 F.2d 852, 864 (1st Cir.
1984).
2. Motion for a Franks hearing. The defendant argues that
the first motion judge erred in denying his request for an
evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978), to challenge the validity of the affidavit that
accompanied the November 20, 2014 wiretap application. We
review the first motion judge's determination for an abuse of
discretion. See Commonwealth v. Almeida, 496 Mass. 716, 723
(2025); Commonwealth v. Perez, 87 Mass. App. Ct. 278, 285
(2015).
"The defendant is entitled to a Franks hearing only if he
makes two 'substantial preliminary showing[s].'" Commonwealth
v. Andre, 484 Mass. 403, 407 (2020), quoting Long, 454 Mass. at
552. The defendant first must make "a substantial preliminary
showing that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the
affiant[s] in the warrant affidavit." Franks, 438 U.S. at 155-
156. "Intentionally or recklessly omitted material may also
form the basis for mounting a challenge . . . ." Long, supra.
Second, the defendant must show that "the allegedly false
statement is necessary to the finding of probable cause," or
12 "that the inclusion of the omitted information would have
negated the [judge's] probable cause finding" (quotation and
citation omitted). Andre, supra at 408. If these two
"requirements are met, and if, when material that is the subject
of the alleged falsity or reckless disregard is set to one side,
there remains sufficient content in the warrant affidavit to
support a finding of probable cause, no hearing is required."
Franks, supra at 171-172.
The defendant challenges numerous statements as false as
well as omissions that he claims entitled him to a Franks
hearing. 7 Before addressing these claims, we note that under the
7 The statements the defendant challenges as false are as follows: (1) if the CI were to sell product in a particular geographic area, the CI had to sell Resto's "and [the defendant's] product"; (2) the defendant was named as a target in a DEA wiretap investigation in 2010, was arrested "after being overheard negotiating for kilogram quantities of cocaine" from Resto, and the charges against the defendant were later dropped "due to evidence tampering issues"; (3) Resto and the defendant were "overheard in several conversations with Burgos" pertaining to the purchase of "multi-box quantities of heroin from Burgos"; (4) the CI "was given $1,600" and "paid [the defendant]" for a drug debt; (5) the defendant knew Resto had 700 grams of raw heroin and that this corroborates the fact that the defendant and Resto "work in collaboration"; and (6) the defendant was "named as a target in an order for a TIII wire intercept" signed by a Massachusetts judge.
The omissions that the defendant claims were known to law enforcement and were material to the judge's determination of probable cause are as follows: (1) the CI, "despite telling law enforcement that the drug debt owed to [the defendant] was $1,600, gave [the defendant] just $900 of the $1,600 provided by law enforcement"; (2) the defendant "had no involvement in the problems between [the CI] and Resto regarding heroin
13 terms of his conditional plea the defendant reserved the right
to appeal, in relevant part, the first motion judge's denial of
his November 16, 2016 motion to suppress as well as his June 12,
2017 amended motion to suppress. See Mass. R. Crim. P.
12 (b) (6) ("[T]he defendant may tender a plea of guilty . . .
while reserving the right to appeal any ruling or rulings that
would, if reversed, render the Commonwealth's case not viable on
one or more charges. The written agreement must specify the
ruling or rulings that may be appealed . . . ."). Here, the
scope of reserved arguments on appeal is "limited to those
raised below in the applicable motion[s]." Commonwealth v.
Page, 105 Mass. App. Ct. 532, 536 (2025). See United States v.
Adams, 971 F.3d 22, 30 (1st Cir. 2020) ("Virtually any and all
nonjurisdictional issues not explicitly preserved for appeal in
the conditional plea agreement . . . are deemed waived"); United
States v. Doherty, 17 F.3d 1056, 1058 (7th Cir. 1994) ("[The
defendant]'s 'conditional' plea . . . reserved the right to
appeal only the denial of his motion . . . on the ground the
motion had stated . . . ."). The defendant challenged some but
distribution and refused to involve himself"; (3) the defendant "was not a partner of Resto and consistently referred to Resto's drug business as" Resto's; and (4) the defendant and the CI "discussed going into a drug business together where [the defendant] supplied the drugs and the [CI] supplied the customer base."
14 not all of these statements or omissions in the reserved
motions.
In the motions to suppress that are before us on appeal,
the defendant did not challenge the veracity of the statement
that if the CI were to sell in a particular geographic region,
the CI had to sell Resto's and the defendant's product
(statement 1). See note 7, supra. Likewise, the defendant
failed to raise as an issue relevant to the determination of
probable cause the alleged false statement and related omission
pertaining to his claim that the CI took money from the police
when paying the defendant for his drug debt (statement 4 and
omission 1). 8 Id. These arguments were not before the first
motion judge and are therefore waived. See Page, 105 Mass. App.
Ct. at 535-537. See also Commonwealth v. Honsch, 493 Mass. 436,
456 (2024) ("Where a defendant never attempted to introduce
evidence and, therefore, a [motion] judge never precluded such
evidence, the [motion] judge could not have abused [their]
discretion").
The defendant challenges statements in the affidavit that
pertain to charges of trafficking and conspiracy that were
8 We have addressed the issue of the CI's veracity, supra. We further note that "[a] Franks hearing . . . is not designed to impeach the informant's veracity." Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 38 (2002), quoting Commonwealth v. Amral, 407 Mass. 511, 519 n.8 (1990).
15 brought against the defendant in 2010 as false (collectively,
statement 2 and statement 6). See note 7, supra. Specifically,
he claims that he was not named as a target of wiretaps in the
criminal investigation, that he was not intercepted negotiating
cocaine quantities with Resto in 2010, and that the criminal
charges were not dismissed due to evidence tampering. The
defendant relies solely on his affidavit to support his claim
that two of these statements -- that he was named as a target in
the 2010 wiretaps and that he was intercepted negotiating
cocaine quantities with Resto -- are false. Here, the first
motion judge determined that the defendant's uncorroborated
affidavit did "not rise to the level of a substantial
preliminary showing of intentional falsity or reckless disregard
for the truth." Commonwealth v. Ramos, 402 Mass. 209, 215
(1988). Without more of a showing from the defendant than his
account of events, it was not an abuse of discretion for the
first motion judge to reach this conclusion. Id. (mere
allegations of false statements by defendant in affidavit not
enough for showing and must be accompanied by offer of proof).
As for the statement concerning the reason for the
dismissal of the defendant's 2010 criminal charges, the
Commonwealth in its brief concedes that the affidavit misstated
the reason the defendant's charges were dismissed, and that they
were dismissed for lack of probable cause rather than for
16 evidence tampering. The Commonwealth also notes that Resto, the
defendant's codefendant in the 2010 criminal matter, had his
conspiracy charge "vacated and dismissed with prejudice . . .
[by] SJC Order" due to evidence tampering. The affiants may
arguably have been negligent or careless in attributing the
basis for the dismissal of the charges against Resto in the 2010
matter to the defendant, but beyond the fact that the
misstatement occurred, the defendant does not provide any
evidence that the statement was made "intentionally or
recklessly" as required for a substantial showing under the
first prong of Franks. See Long, 454 Mass. at 552. 9
Turning to the statement concerning the purchase of
multiple boxes of heroin, the Commonwealth acknowledged in the
motion hearing that the language in the affidavit was not
accurate and that there was no recorded conversation between
Burgos, the defendant, and Resto about purchasing boxes of
heroin (statement 3). See note 7, supra. The defendant also
9 The defendant relies on Commonwealth v. Dion, 31 Mass. App. Ct. 168, 172 (1991), to support his assertion that the misstatement of a criminal record is per se reckless misrepresentation entitling him to a Franks hearing. This argument is unavailing. While the court in Dion "assume[d], without deciding," that a substantial showing had been made that "the allegations concerning the defendant's prior criminal record constituted a reckless misrepresentation," the court nevertheless found sufficient facts to support a finding of probable cause even after "excising the alleged misrepresentation." Id. at 172-173.
17 claims in his brief that "[t]here is not a single wiretapped
conversation in which [he] is overheard discussing multi-box
quantities of heroin from Burgos," that he "was mentioned in one
wiretap, not multiple," and that "at no point did he appear on
[a wiretap]." However, there was in fact a recorded
conversation between Burgos and his girlfriend that identified
both Resto and the defendant as parties interested in purchasing
boxes of heroin. This conversation was transcribed and portions
of it were included in the wiretap affidavit. The
Commonwealth's broad description of the nature of the wiretap
conversation could arguably be considered negligent or careless,
but the defendant has not shown that this rises to the level of
a "reckless disregard for the truth" that is necessary under the
Franks standard. Commonwealth v. Dunn, 494 Mass. 42, 56 (2024),
quoting Andre, 484 Mass. at 407-408.
The defendant further challenges an inference drawn from a
recorded meeting on November 10, 2014, between the CI and the
defendant wherein the affiants reported that the defendant had
informed the CI that Resto "had control of 700 grams." 10 The
affiants inferred that this "corroborates the fact that [the
defendant] and RESTO are working in collaboration" and the
10The transcript of the conversation states "grand" not "grams." This could be a scrivener's error. The affiants inferred he meant unpackaged heroin, presumably because the conversation referred to bagging narcotics.
18 defendant argues this was false (statement 5). See note 7,
supra. Assuming without deciding that a defendant can challenge
the affiants' inference, we are not persuaded. The defendant
correctly notes that the transcript reflects that he refused to
help Resto with that heroin and the affidavit should have
conveyed that. However, the transcript of the recorded
conversations established that Resto thought he could
collaborate with the defendant in drug dealing, that the
defendant was tired of helping Resto, and that the defendant was
giving Resto advice on how to bag the heroin. Given these
statements, the defendant has not shown that the inclusion of an
inference that the defendant and Resto were collaborating was
made with "reckless disregard for the truth," Ramos, 402 Mass.
at 215, and by the same token the defendant has not met his
burden to show that the affiants improperly omitted a statement
that the defendant and Resto were not partners (omission 3).
See note 7, supra.
Finally, the defendant's arguments concerning the remaining
omissions -- that the defendant had no involvement in the heroin
distribution between the CI and Resto (omission 2), and that the
defendant and the CI previously discussed going into a drug
business together (omission 4) -- were supported primarily by
the affidavit submitted by the defendant. As we have explained,
more is required to establish a material omission under the
19 Franks standard than the defendant's own account of events.
Ramos, 402 Mass. at 215.
Considering our analysis of each incorrect statement and
omission, we discern no abuse of discretion or other error in
the first motion judge's determination that the defendant was
not entitled to an evidentiary hearing to pursue these
challenges. See Franks, 438 U.S. at 155-156; Dunn, 494 Mass. at
56. Even were we to excise the incorrect statements, sufficient
facts remain to support a finding of probable cause based on the
defendant's prior involvement in DEA investigations, the
recorded conversation of Burgos mentioning the defendant's
desire to purchase multiple boxes of heroin, the defendant's
statements about packing narcotics, and the controlled buy.
3. Denton Circle package. The defendant argues that the
second motion judge erred in denying his motion to suppress the
package containing cocaine recovered from the Denton Circle
address. 11 We disagree.
The Commonwealth in its brief asserts that the 11
defendant's arguments related to the package are waived because evidence of the package did not contribute to the defendant's arrest. The defendant's conditional plea, however, reserved for appellate review the first motion judge's denial of the defendant's amended motion to suppress on this issue. Because we proceed infra to review and affirm that ruling, we need not address the Commonwealth's implicit suggestion that the defendant was not prejudiced by it and therefore cannot challenge it at all.
20 When reviewing an order on a motion to suppress evidence,
we accept the motion judge's subsidiary findings of fact absent
clear error and review independently the judge's ultimate
findings and conclusions of law. Commonwealth v. Jimenez, 438
Mass. 213, 218 (2002). Additionally, we "leave to the judge the
responsibility of determining the weight and credibility to be
given oral testimony presented at the motion hearing."
Commonwealth v. Yusuf, 488 Mass. 379, 385 (2021), quoting
Commonwealth v. Balicki, 436 Mass. 1, 4 n.4 (2002). See
Commonwealth v. Regan, 104 Mass. App. Ct. 623, 626
(2024) (we "defer to [the motion judge's] assessment of the
credibility of the testimony taken").
The defendant argues that UPS, under the direction of law
enforcement, seized the package from Denton Circle after it had
been delivered. "The Fourth Amendment, and the accompanying
rule of exclusion, apply only to government action. Evidence
discovered and seized by private parties is admissible without
regard to the methods used, unless State officials have
instigated or participated in the search." Commonwealth v.
Leone, 386 Mass. 329, 333 (1982). See District Attorney for the
Plymouth Dist. v. Coffey, 386 Mass. 218, 221 (1982) ("Neither
the Fourth Amendment nor art. 14 [of the Declaration of Rights
of the Massachusetts Constitution] is implicated when the State
is not involved in the private 'search . . . .'"). For evidence
21 to have been seized here as a result of State action, law
enforcement must have induced or directed UPS to provide the
evidence, and UPS must have acted with the intent to discover
evidence on behalf of the police. See Commonwealth v. Richmond,
379 Mass. 557, 561 (1980). See also Commonwealth v. Storella, 6
Mass. App. Ct. 310, 315 (1978) (exclusionary rule does not apply
where private party "did not act as agents of the State in
acquiring or 'seizing' the evidence").
Here, the second motion judge found that the UPS driver
picked up the package from Denton Circle independent of police
direction. Key to this determination was the testimony, which
the judge credited, from the DEA agent that his conversation
with the UPS supervisor, Jeffrey Herd, was not a direction to
seize the package from Denton Circle. Specifically, the agent
testified that the UPS supervisor independently "contacted . . .
the driver that delivered the package and asked him to go see
where the package was, if it was where he left it, and retrieve
it." The UPS supervisor testified that he did not recall the
incident, including the conversation with the DEA agent, or
directing the UPS driver to retrieve the package. Brian Taylor,
the other UPS supervisor who testified, also did not recall
having a conversation with the UPS driver about retrieving the
package. Finally, Luccio Gill, the UPS driver that was ordered
to retrieve the package from Denton Circle, remembers having a
22 conversation with Taylor and retrieving the package from the
Denton Circle address, but testified he was unaware at the time
that the package may contain drugs or that the authorities
inquired about the package when he received the request from
Taylor. Considering the sparse testimony available on the
record from those involved and the lack of evidence to the
contrary, we decline to disturb the judge's credibility
determinations in this case and conclude that it was not an
error of law to find there was no State action. See Coffey, 386
Mass. at 221.
The defendant also argues that law enforcement lacked
probable cause to search the package because the search warrant
application did not contain sufficient detail establishing the
reliability of the narcotics detection dog. Because this issue
was not raised in the motions to suppress, the argument was not
considered by the motion judges and is waived on appeal. Page,
105 Mass. App. Ct. at 535-537.
Orders denying motions to suppress affirmed.
By the Court (Henry, Sacks & Singh, JJ. 12),
Clerk
12 The panelists are listed in order of seniority.
23 Entered: December 1, 2025.