Commonwealth v. Garcia

4 Mass. L. Rptr. 570
Procedural entryThis page is a short order in Commonwealth v. Garcia. Read the opinion of the Court — 4 Mass. L. Rptr. 569
Massachusetts Superior Court·Decided September 27, 1995·No. No. 9477CR3394·Published

Opinion

Whitehead, J.

INTRODUCTION

The defendant stands indicted on a single charge of trafficking in one hundred grams or more of cocaine. He has moved to suppress physical evidence (the [571]*571cocaine itself) which was seized from an apartment in Lawrence on September 26, 1994. The Court conducted a hearing on the motion from September 11, 1995 through September 13, 1995. The following constitute the Court’s findings of fact, rulings of law and order on the motion.

FINDINGS OF FACT

On the evening of September 26, 1994, Lawrence Police Detectives Thomas Wolfendale and Brian Burokas proceeded to Osgood Street, in Lawrence, for the purpose of conducting a surveillance of the six-family dwelling located at 94-96 Osgood Street. It had been reported that narcotics-related activity was occurring at that address.

Upon their arrival, the detectives took up positions on the property of 98-100 Osgood Street, next door to 94-96 Osgood Street. Detective Wolfendale went to the front porch of the building. Detective Burokas secreted himself at ground level along the side of the building.

At sometime close to 9:00 p.m., an older model automobile pulled up across the street from 100 Osgood Street. A male individual exited the vehicle and walked up onto the porch where Detective Wolfendale had positioned himself. The male individual was carrying two bags, which he held against his chest. As he entered onto the porch, Detective Wolfendale said to him, “You must be looking for 94-96.” The male replied, “I know what I’m looking for. I’m looking for the guy on the third floor.” At about that time, Detective Burokas came onto the porch. He recognized the male as one Jeffrey Freedman, an individual with whom he. had had prior contact.

Detective Wolfendale identified himself as a police officer and exposed his gun holster, to which his badge was attached. He asked Freedman, “What’s in the bag?” Freedman replied, “A six-pack of beer.” One bag was partially open, and the lighting was reasonably good. Detective Wolfendale was able to observe a six-pack of beer in the bag. He asked, “What’s in the other bag?” Freedman replied, “A scale.” Detective Wolfendale asked Freedman to open the bag up. Freedman, in response, withdrew a black case from the second bag. Detective Wolfendale asked Freedman to open up the case. Freedman complied. At that point, Detective Wolfendale observed an item which he, an experienced narcotics investigator, recognized to be a “sophisticated scale,” capable of measuring items in units as low as grams and milligrams. He knew that similar scales are used in the narcotics trade.

Freedman recognized Detective Burokas and greeted him by his first name. A brief conversation ensued between them. Detective Wolfendale then asked Freedman why he was at 100 Osgood Street. Freedman replied that he was there to purchase some jewelry from a man named “Jose.” Freedman then entered the common hallway of the building. (It was apparently a multiple-family dwelling.) Detectives Wolfendale and Burokas entered as well.

Once inside the building, Detective Wolfendale said to Freedman, “I don’t believe you.” Freedman replied, “Why don’t you go upstairs and find out?” He then continued up the stairs to the third floor. Detectives Wolfendale and Burokas were immediately behind him. As the three men proceeded up the stairs, Detective Wolfendale told Freedman that he thought Freedman was lying. He stated that he suspected Freedman was there to buy something else. At that point, Freedman acknowledged that he was there to buy cocaine.

As Freedman arrived at the third-floor landing, Detectives Wolfendale and Burokas stopped. They remained a few steps down on the staircase. However, they were able to observe what Freedman was doing on the landing. Freedman knocked on the door of the third-floor apartment. A male voice from within asked, “Who is it?” Freedman replied, “It’s me.” The door opened, and a male occupant of the apartment asked, “Have you got the money?” At that point, Detective Wolfendale proceeded quickly up onto the third floor, past Freedman and into the apartment. He announced that he was a police officer. Detective Burokas also proceeded up to the third-floor landing and stood behind Freedman in the doorway of the apartment. No weapons were produced. The male occupant of the apartment asked, “Are you kidding?” Detective Wolfendale replied, “No.” At that point, Detective Burokas escorted Freedman into the apartment and closed the door.

Inside the apartment when the detectives first entered were the defendant, Jose Garcia; one Grisel Figueroa; and Ms. Figueroa’s four children, aged 11 years, 5 years, 4 years and an infant. The apartment consisted- of several rooms. The door through which the detectives entered opened into a parlor. To the right was a bedroom. To the left was a kitchen, off of which ran a hallway to two additional bedrooms and a bathroom. When the detectives entered the apartment, Mr. Garcia, Ms. Figueroa, the 4-year-old child (Kimberly) and the infant were in the parlor. The other two children were in one of the back bedrooms.

The apartment was rented to Ms. Figueroa, who normally occupied it with her children. Her bedroom was the bedroom to the right of the parlor. Mr. Garcia was not a permanent occupant of the apartment. However, he was the father of the two youngest children and would stay in the apartment when he was in Lawrence. On those occasions when he stayed, he was not provided with a key to the apartment. (The door was sometimes locked.) However, while inside of the apartment, he had unrestricted access to all of its rooms and was welcome to have guests visit. On the very evening of September 26, 1994, he had arrived from New York. He had entered the apartment approximately one hour before the detectives appeared. He had left his jacket in Ms. Figueroa’s bedroom, used the [572]*572bathroom and the telephone, and then sat in the parlor with Ms. Figueroa.

The first question which the detectives put to the occupants, once they had entered, was, “Who rents the apartment?” Ms. Figueroa replied that she did. Detective Wolfendale told her that the police were there because Freedman had told them that he had come to buy cocaine. Detective Wolfendale then asked if he could look around the apartment. Figueroa asked, “Why?” Detective Wolfendale repeated that Freedman had said that he had come to buy cocaine.

Detective Burokas decided to talk privately with Ms. Figueroa. To that end, he asked her to accompany him into the kitchen. She complied, bringing the infant and 4-year-old with her. Detective Wolfendale, Mr. Garcia and Freedman remained in the parlor. Once in the kitchen, Detective Burokas asked Ms. Figueroa again if the detectives could search the apartment. Again, she asked, “Why?” Detective Burokas told her that the detectives wanted to look around because Freedman had said that he had come to the house to buy drugs from Jose. At that point, one of the detectives told Ms. Figueroa that she had two choices; either she could consent to the search or the detectives would “get” a search warrant. He told Ms. Figueroa that if she elected the option of a search warrant, a police officer would remain on the premises while the warrant was being secured. He further told her that if the police were forced to obtain a warrant and if cocaine was discovered during the search undertaken pursuant to the warrant, the Department of Social Services (DSS) would be called, and DSS “could” take her children from her.

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Commonwealth v. Garcia, 4 Mass. L. Rptr. 570 (Mass. Ct. App. 1995).

4 Mass. L. Rptr. 570 (Commonwealth v. Garcia) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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