Commonwealth v. Figueroa

17 Mass. L. Rptr. 37
CourtMassachusetts Superior Court
DecidedOctober 31, 2003
DocketNo. MICR2002218
StatusPublished

This text of 17 Mass. L. Rptr. 37 (Commonwealth v. Figueroa) 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. Figueroa, 17 Mass. L. Rptr. 37 (Mass. Ct. App. 2003).

Opinion

Agnes, A.J.

The defendant, Angel Figueroa, is charged with Trafficking in Cocaine, a class B controlled substance and conspiracy. He has filed a pretrial motion to suppress physical evidence seized by the police, statements he made to the police, and the results of a voice identification procedure conducted by means of a cellular telephone. Based on the evidence presented at the hearing on the defendant’s motion, I make the following findings of fact and rulings of law.

FINDINGS OF FACT

Trooper Marion Fletcher is a 15-year veteran of the Massachusetts State Police assigned to the Special Narcotics Investigation unit of the Attorney General’s Office. Her experience includes 4 years as a local police officer and 10 years as a road trooper. She has extensive experience in all aspects of narcotic drug investigations having attended specialized courses offered by the Massachusetts State Police, the federal Drug Enforcement Administration and others, and having participated in hundreds of narcotic drug investigations. Trooper Gregory Desfosses was assigned to the Special Narcotics Investigation unit of the Attorney General’s Office in July 2001. He has carried out between 20-30 undercover drug investigations.

In the fall of 2001, trooper Fletcher was involved in a narcotic drug investigation. The target was a male known as ‘Tony.” His exact identity was unknown. Trooper DesFosses was serving as the undercover purchaser of narcotics. He had the means to contact Tony by cell phone and by pager, but had not met with him face to face. He had occasion to talk to Tony 10-15 times during the course of the investigation. Tony spoke English and responded to messages left by trooper DesFosses on his cell phone in English. On November 19, 2001, he arranged for a purchase of approximately 49 grams of cocaine for $1800 from Tony. Tony called him on his cell phone and confirmed the deal. Tony choose the location advising him specifically that another location selected by trooper Des-Fosses had too many “cops” nearby. When trooper DesFosses was approaching the agreed-upon location, he received a call from Tony who informed him that “his boy” would be attending the delivery in his place. Trooper Fletcher was serving as a surveillance officer with responsibility to attempt to identify who was delivering drugs, and to monitor the activities of undercover police officers. She was in radio and cell phone communication with trooper DesFosses.

[46]*46The “meet location” was the parking lot of a Market Basket store on the Lowell-Dracut line. She arrived 15 minutes before the time set for the delivery and set up surveillance. At approximately 5:00 p.m., she observed trooper DesFosses arrive. Shortly thereafter, she observed a black, Geo Tracker vehicle, Mass. Registration number 3139XB, drive into the parking lot and signal to trooper DesFosses to enter the vehicle. He did by getting into the back seat. He told the occupant, later identified as Radmus Davila, that he didn’t care to ride in the back seat. After some difficulty, trooper DesFosses was able to explain that he wanted to ride in his own vehicle. The pair exited Davila’s car and entered DesFosses’ car. There a telephone call was placed to Tony and trooper DesFosses explained his reluctance to ride in Davila’s car and asked to lower the price by $100. Trooper DesFosses then heard a conversation between Davila and (presumably Tony) in Spanish. Trooper DesFosses then exited the vehicle, entered his own vehicle and followed Davila who drove away in the Geo Tracker. Trooper Fletcher made observations of these maneuvers and followed the two cars. She was able to confirm that the driver of the Geo Tracker was Radmus Davila, the registered owner of the vehicle, by viewing his image as it appeared in a Registry of Motor Vehicles computer system.

Trooper Fletcher followed the two vehicles to a residential location on Willard Street in Dracut. Davila stopped his motor vehicle and opened the hood as if he was having engine trouble. Davila entered trooper DeFosses’s car and then exited, got back into his Geo Tracker and drove away. Trooper Fletcher could not follow him, but she did debrief Trooper DesFosses who turned over to her a quantity of a white, rock-like substance he had purchased from Davila. She conducted a field test of the material which tested positive for cocaine. He said that he and Davila had a disagreement over whether the price was $1700 or $1800. Trooper DesFosses told her it was difficult to communicate with Davila who spoke primarily Spanish which trooper DesFosses did not speak. To clear things up, trooper DesFosses said he called ‘Tony” on a cell phone. Davila then returned the $100 to him.

By January 2, 2002, the police had located Davila’s residence by a process of trial and error in which they drive around until they spotted his Geo Tracker at 7 Wildwood Street in Dracut. On that day, trooper Fletcher received information that trooper DesFosses had talked with Tony and arranged for a second delivery at the same Market Basket location. It was during the conversation between trooper DesFosses and Tony that Tony said he suspected him of being an undercover police officer. Nonetheless, trooper DesFosses was able to talk his way clear to arranging for another sale of approximately 14 grams of cocaine at 7:00 p.m. She had Davila’s residence under surveillance and saw the Geo Tracker leave the driveway. She followed it to the Market Basket parking lot. Davila followed the same routine as before and trooper Fletcher followed the two cars to a remote street where the exchange occurred as before. After Davila left the scene she again debriefed trooper DesFosses who told her he purchased an additional quantity of what appeared to be cocaine from Davila for $1,000. The material he purchased consisted of a glassine bag containing 27 smaller bags containing a white powdery substance in amounts referred to as “40’s” or “80’s” and consisting of between V2 to 1 ounce of cocaine. Once again, she field tested the material and it tested positive for cocaine.

The following day, January 3, 2002, trooper Fletcher received information that Davila was no longer driving the Geo Tracker, but instead was driving a brown Oldsmobile (Mass. Reg. 2506 VR).

On January 4,2003, the state police managing this investigation came to the conclusion that Davila and Tony were aware that they were the subjects of a police investigation.1 A decision was made to bring the investigation to a close. Trooper Fletcher was ordered to go to 7 Wildwood Street and wait for Davila. She arrived at the location at approximately 11:30 a.m. and set up surveillance. She was alone in an undercover vehicle, and in civilian clothes. A second trooper was some distance away in another vehicle. At approximately 1:30 p.m. she saw a brown Oldsmobile drive past her and pull into a space. The driver of the vehicle exited. She got out of her car and walked briskly toward the Oldsmobile. She did not recognize the driver, but did recognize the occupant as Davila. By the time she got close to the Oldsmobile, the driver had exited as well. She addressed him by saying “Hey, how you doing.” She used this ruse in an effort “to slow things down” because she knew Davila typically entered his apartment through a nearby back door and she did not see trooper Smith or any other police officer in sight. She did not draw her weapon. The driver, later identified as the defendant Angel Figueroa, smiled and replied “Do I knowyou?” She responded “Sureyou do,” and approached closer. In the next breath she said “State Police, put your hands on the car” and displayed her badge.

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Bluebook (online)
17 Mass. L. Rptr. 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-figueroa-masssuperct-2003.