Commonwealth v. Igaravidez

16 Mass. L. Rptr. 463
CourtMassachusetts Superior Court
DecidedJune 2, 2003
DocketNo. 021270
StatusPublished

This text of 16 Mass. L. Rptr. 463 (Commonwealth v. Igaravidez) 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. Igaravidez, 16 Mass. L. Rptr. 463 (Mass. Ct. App. 2003).

Opinion

McCann, J.

INTRODUCTION

For the Commonwealth — Assistant District Attorney, Timothy M. Farrell.

For the defendant — John Bosk, Esquire.

The defendant, Ricardo Igaravidez (“Igaravidez”), is presently under indictment for a charge alleging trafficking in heroin pursuant to G.L.c. 94C, §32E(c). He filed a Motion to Dismiss and/or Suppress on the grounds of Violation of the Fourth Amendment of the United States Constitution, Article XIV of the Massachusetts Declaration of Rights, and G.L.c. 276, §1 et seq.

FACTUAL BACKGROUND

The Court makes the following Findings of Fact beyond a reasonable doubt and the following Rulings of Law.

William Pinkes (“Pinkes”) is a state trooper assigned to the Holden Barracks. He has been a trooper for eleven years and has been assigned to the Holden Barracks for three years. He has extensive training and experience in the detection of drugs and in investigations relating to drug activities. On May 30, 2002, Pinkes was working his normal 3-to-l 1 p.m. shift. He was driving eastbound on Interstate 290 (1-290) near the downtown Worcester area. Traffic was medium. There were three travel lanes. He was in the center lane. He observed two vehicles in front of him. The lead vehicle was a blue Jeep, the motor vehicle in question. [464]*464The second vehicle was between the Jeep and Pinkes. He observed that the Jeep was émitting a “noticeable"1 amount of smoke. He never opined what he observed was “excessive.”2 He also observed the Jeep jerk across the line separating the center travel lane from the left travel lane. The Jeep jerked across the line and came back. Pinkes testified that no turn signal was used and further that no change of lane was ever completed.

After Pinkes observed the Jeep jerk across the marked lane, and then return to the same lane, he activated his signal lights in order to stop the Jeep. The Jeep pulled into the break-down lane of the road, without incident, in the area of exit 11. Pinkes had no difficulty stopping the Jeep. At the time of the stop, he had followed the Jeep for a distance in excess of one mile.3

Pinkes parked behind the Jeep. For safety reasons, he approached the vehicle from the passenger side. There were two occupants in the car, the driver and a front seat passenger. As he approached the vehicle, Pinkes observed that the Jeep had a Pennsylvania license plate, No. EDV6885. He observed a duffle bag, a car transmission, a Pennsylvania license plate, and three cellular telephones on the back seat. Pinkes recognized two of the phones to be Nextel telephones and one to be a regular cellular telephone. He opined that he is familiar with the fact that Nextel telephones have a dual use. They can be used as a regular cellular telephone through a cellular network or as a direct-connect that allows one party to communicate with other Nextel users who have programmed their phones to receive such communication. The direct-connect feature is similar to a walkie-talkie and is unable to be picked up or traced by police. He opined that Nextels are commonly used by transporters and couriers of narcotics to remain in communication with followed vehicles, their destinations, or their sources. They provide a degree of anonymity to the users as they come prepaid and allow calls to be made on the move.

Pinkes asked the operator, Igaravidez, for his license and registration. Igaravidez produced a license but initially held onto it. He said that he could not find his registration. Pinkes asked him to retrieve his registration. Igaravidez resumed his search for his registration. Pinkes allowed him thirty seconds to do so. Igaravidez was unable to produce his registration within that time. Igaravidez handed Pinkes his license and told him he was not the owner of the Jeep. Pinkes ordered him out of the Jeep and to the rear of the Jeep. Igaravidez was wearing shorts and a shirt.

Igaravidez went to the rear of the Jeep. He was standing in 1-290 and cars were going by. Pinkes observed a change in Igaravidez’s demeanor. Ig-aravidez began wringing his hands and kept putting his left hand into his left short pockets. At the back of the Jeep, Igaravidez appeared to Pinkes to be swaying and shifting from foot to foot. Pinkes told Igaravidez to “take it easy” and explained that he had only stopped him for marked lane and excessive exhaust violations.

Pinkes asked Igaravidez what was causing the noticeable exhaust. Igaravidez stated that the car was overheating. Pinkes asked if the Jeep had a steering problem. Igaravidez replied, “No.” Pinkes asked where he was going. Igaravidez responded that he was going to Fitchburg to put a transmission in his car. While the conversation was going on, Igaravidez kept putting his hands in his pocket Igaravidez’s movements made Pinkes nervous and put Pinkes in fear that Igaravidez had a weapon. Pinkes directed him to put his hands on his head as he was going to pat frisk him. Igaravidez turned and instead of putting his hands on his head, he put his hands on his rear pants pocket. Pinkes told him to turn around. Igaravidez did not put his hands on his head and Pinkes took them and put them on his head. Pinkes held his hands there.

Pinkes patted Igaravidez down. As Pinkes was doing so, Igaravidez kept looking to his left and then to his right. He tightened his hands up and clenched his hands together. Pinkes got a “feeling” that Igaravidez was going to try to escape.

While executing the pat frisk, Pinkes felt a long flat object approximately 4" long and 3" wide with some depth within the area of Igaravidez’s shorts extending from below his waistband to down in between his legs. Pinkes opined that such containers are common methods for the concealment and transportation of narcotics. Pinkes also opined that such containers are consistent with something which could contain razors or weapons. Pinkes asked Igaravidez what the object was. Igaravidez replied, “I don’t know.” Pinkes pulled the waistband and saw a package wrapped in masking tape, which Pinkes opined was consistent with the packaging of narcotics. Pinkes handcuffed Igaravidez. Pinkes retrieved what turned out to be two packages from the back of Igaravidez’s shorts. He opened one of the packages and found that it contained several hundred bags of heroin marked “M-16.” He administered Miranda rights to Igaravidez. He asked Ig-aravidez to identify the package. Igaravidez replied that he was paid $1,000 to transport the package to someone near McDonald’s on Water Street in Fitch-burg. He was told that it was worth $500,000.

Pinkes never determined if the Jeep had a Pennsylvania sticker. He did, however, ultimately determine that the motor vehicle was properly registered. Ig-aravidez never threatened Pinkes during the whole process.4

DISCUSSION

There are three issues presented in this case: (1) whether Pinkes was warranted in initially stopping the motor vehicle when all he observed were two cars in front of him with the lead motor vehicle omitting a “noticeable” amount of exhaust and the lead vehicle making a jog over the left line, but immediately returning to his lane; (2) whether Pinkes was authorized to [465]

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Bluebook (online)
16 Mass. L. Rptr. 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-igaravidez-masssuperct-2003.