Commonwealth v. Erazo

27 Mass. L. Rptr. 561
CourtMassachusetts Superior Court
DecidedNovember 23, 2010
DocketNo. 1010233
StatusPublished

This text of 27 Mass. L. Rptr. 561 (Commonwealth v. Erazo) 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. Erazo, 27 Mass. L. Rptr. 561 (Mass. Ct. App. 2010).

Opinion

Kaplan, Mitchell H., J.

A Suffolk County grand jury returned an indictment against the defendant, Jaime Erazo, for trafficking in cocaine in excess of 100 grams. The case is before the court on the defendant’s motion to suppress all evidence that was seized from him on January 5, 2010, as well as any statements that he made following the seizure. The defendant contends that this evidence was seized in violation of rights afforded him under the Fourth and Fifth Amendments of the United States Constitution and Articles 12 and 14 of the Massachusetts Declaration of Rights and any statements that he made following the seizure and his arrest were fruits of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471 (1963).

The court convened an evidentiary hearing on the defendant’s motion on October 18, 2010. The Commonwealth presented the testimony of Lieutenant David J. Callahan of the Revere Police Department and Agent Andrew Graham, a Deportation Officer with the United States Department of Homeland Security, Immigration and Customs Enforcement Service (ICE), and fourteen exhibits were received in evidence. The parties requested and were given leave to file post-hearing memoranda. Final arguments of counsel were presented to the court on October 27, 2010. After consideration of the foregoing, the motion is ALLOWED in part and DENIED in part.

FINDINGS OF FACT

In consideration of the testimony presented and the exhibits admitted in evidence, the court makes the following findings of fact.

Officer Graham was a United States Border Patrol Officer for twelve years. He transferred to ICE approximately sixteen months before the events at issue in [562]*562this motion. He is presently a Deportation Officer charged with the apprehension of fugitive aliens who are the subject of warrants for their removal or deportation from the United States (deportation warrants). Generally, deportation warrants are issued after an immigration judge has entered an order for deportation or removal. Officer Graham has arrested some three hundred individuals pursuant to such warrants. Officer Graham is fluent in Spanish — fluency in Spanish is a job requirement for Border Patrol Officers.

For approximately six months preceding his encounter with the defendant, Officer Graham had been attempting to execute a deportation warrant for William Erazo (William), the defendant’s uncle, but had been unable to locate him. While searching for William, Officer Graham learned that William had a nephew, the defendant, who also was the subject of an active deportation warrant which had issued on February 17, 2004.

Officer Graham assembled a so-called “target folder” for the defendant that contained various information concerning his alien status, criminal history, and other matters. In the course of his investigation of the defendant, Officer Graham discovered that the defendant had two vehicles registered in his name showing an address of 105 Bellingham Street, Revere. Officer Graham drove to that address and observed both vehicles parked outside a multi-unit building in this residential area. Officer Graham decided to arrest the defendant pursuant to the active warrant outstanding against him. His principal reason for apprehending the defendant, however, was to obtain information concerning the whereabouts of William.

Under certain circumstances, Deportation Officers have discretion to release aliens who have deportation orders outstanding against them, subject to orders of supervision, while they await deportation. Officer Graham reviewed the defendant’s target folder and confirmed that the defendant had nothing in his record that would preclude Officer Graham from granting the defendant such a discretionary release, e.g., prior criminal convictions. Officer Graham was, therefore, considering offering the defendant such a discretionary release, if he were arrested, as an inducement for assistance in locating William. Officer Graham was also aware that because the defendant was bom in El Salvador he might be eligible to remain in the United States, notwithstanding the order of deportation, if he met certain criteria, under a program called “temporary protective status.” A review of the target folder disclosed that the defendant was not currently the beneficiary of temporaiy protective status, although he might have once had such a designation.

Officer Graham conducted surveillance of 105 Bel-lingham waiting for the defendant to enter or exit, but did not see him. At 6:00 A.M. on the morning of January 5, 2010, Officer Graham arrived at 105 Bel-lingham in the company of several other immigration officers. They were dressed in civilian clothing, but had badges handing from their necks identifying them as ICE officers. When, by 8:00, they had not observed the defendant, they decided to knock on the door of his apartment. Officer Graham in the company of two or three other officers went to the apartment door, while two or three additional officers stationed themselves near the back door of the building in case the defendant tried to exit that way. Officer Graham knocked on the apartment door and a woman later identified as the defendant’s girlfriend, Rachel Jenks, answered the door.

Officer Graham recalls Ms. Jenks coming to the door dressed as if she had recently got out of bed. He does not specifically remember his initial exchange with Ms. Jenks, but he has a standard colloquy that he uses when he knocks at the door of a residence where he believes the subject of a warrant resides, and he has no memory of any events that suggest that something out of the routine occurred on this occasion.

According to Officer Graham, he would have identified himself and his companions as immigration officers and then said the following: “Good morning, we’re with the police, we’re conducting an investigation, would you mind if we come into your apartment so that we can talk to you? We’re trying to locate a person that we believe was living at this address.” He would not have entered if Ms. Jenks had not consented to their entry.

Once inside, Officer Graham asked Ms. Jenks, “Is there anybody else home in the house?” Officer Graham recalls Ms. Jenks telling him that the defendant was in the bathroom and his asking Ms. Jenks if she would ask him to come out. As he was making that request, he saw the defendant come out of the bathroom in his underwear. He recognized him from the photographs in the target folder.

Officer Graham could see that there was a small child in the apartment and also a puppy, but asked, “[I]s it okay if we look around and make sure there’s nobody else in the house, you know, for our safety?” This is standard operating procedure for Officer Graham and he makes this request in every entry. Ms. Jenks agreed that the apartment could be searched. The apartment was “small” consisting of a living room separated from the kitchen by a half-wall, two bedrooms and a bathroom.

Shortly after the sweep began, another of the officers reported that one of the bedrooms had a locked closet door. One of the officers inquired of Ms. Jenks, “There’s a locked closet in here, can we get in to see if anybody’s in there?” Ms. Jenks agreed and showed the officer where the key to the closet was kept. Ms. Jenks spoke English well, without any foreign accent.

Officer Graham next spoke to the defendant. He spoke to him in English, which the defendant seemed to understand adequately. The defendant did not ap[563]

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Cite This Page — Counsel Stack

Bluebook (online)
27 Mass. L. Rptr. 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-erazo-masssuperct-2010.