The defendants, Jose Rosario ("Rosario") and Freddy Tapia Collado ("Tapia") (collectively, "Defendants"), move to suppress cocaine seized by members of the Drug Enforcement Administration ("DEA") and state and local officers during a warrantless search of two suitcases on June 28, 2024. Following a hearing, and for the reasons set forth below, the
Defendants' motions to suppress are DENIED.
FINDINGS OF FACT
On April 29, 2026, the court heard testimony from DEA Special Agent Ryan Montiverdi ("Montiverdi"), and it received six exhibits in evidence. Neither Rosario nor Tapia testified. The court makes the following factual findings based on the credible evidence produced at the hearing and the reasonable inferences drawn from that evidence. In making these findings, the court finds the testimony of Montiverdi truthful and accurate on the relevant and material points set forth below.
Montiverdi has been a DEA special agent for approximately nine years. He is currently assigned to the Worcester High Intensity Drug Trafficking Area ("HIDTA") group. Prior to his present assignment and on the date of the contested seizures, Montiverdi was assigned to the
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Boston TF4 Cross Borders Initiative ("CBI") group, a federal task force comprised of federal agents and state and local cross-designated task force officers that investigates drug trafficking activities in the Merrimack Valley area, to include the greater Lawrence area as well as Southern New Hampshire. Before his assignment to CBI, Montiverdi worked as a special agent in a DEA New York field division for approximately six years. Prior to that, he was a police officer in Massachusetts for approximately thirteen years. He has accumulated a body of experience in investigating narcotics distribution organizations, including those that operate across state lines.
On June 28, 2024, Montiverdi received information from a federal task force officer ("TFO") in New York that an address in Lawrence potentially contained 100 kilograms of cocaine. The TFO in New York related to Montiverdi that they believed a person identified by a confidential source of information ("SOI") in New York as "Fiero" was at this residence with the cocaine. The SOI identified Fiero from a photograph obtained from a social media site. The SOI also identified the building and third-floor apartment believed to house the cocaine from another photograph. The photographs of Fiero and the exterior of the house and apartment, which the SOI believed to be located at 81 Cross Street in Lawrence, were forwarded to Montiverdi.
The TFO also informed Montiverdi that an individual known as "Manny" had been arrested or detained in Lawrence earlier that day with narcotics and money. Montiverdi corroborated the information regarding the earlier arrest of Manny through a Lawrence detective, who informed Montiverdi that a person named Emmanual Barroso had been arrested in Lawrence earlier that day for trafficking in more than 200 grams of methamphetamine and fentanyl trafficking. Based on information received from the SOI, DEA New York feared that
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following Manny's arrest, the cocaine located at the address on Cross Street in Lawrence would be moved by Fiero and others.
After receiving the above information, Montiverdi and a group of approximately three other special agents and three state and local police officers established surveillance on Cross Street in unmarked vehicles at approximately 8:30 PM. When Montiverdi and other agents arrived to conduct surveillance, however, they realized that the house and third-floor apartment identified in the photograph by the SOI as 81 Cross Str et was in fact located at 84 Cross Street.[1]
Upon establishing surveillance points, agents observed four males grilling food and socializing on the deck located off the third-floor apartment. At approximately 9:00 PM, a white Honda Accord bearing a temporary tag out of Georgia arrived and parked in front of the building. A female, later identified as Asley Mercedes ("Mercedes."), exited the car and entered 84 Cross Street. Montiverdi knew from the TFO's SOI in New York that Fiero operated a white Honda Accord. Officers conducted a registration query on the temporary tag, but received no identifiable information for the tag. Montiverdi knew from his experience and training that narcotics traffickers frequently use forged temporary tags on vehicles to avoid law enforcement detection and apprehension.
A short time later, agents observed two of the four men leave the premises and enter a "sprinter" style van. They drove a short distance to the area of a barbershop, where they exited the van and began playing dominoes on a street comer. The other two men, later identified as Rosario and Tapia, remained at 84 Cross Street.
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[1] Exhibit 1 is a Google photograph purporting to depict the building identified by the SOI as having an address of "81 Cross Street." The incorrect address on the Google photograph presumably explains the SOI's identification of the third-floor apartment at "81 Cross Street" as the address housing the 100 kilograms of cocaine.
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At approximately 9:30 PM, agents observed Mercedes leave the third-floor apartment at 84 Cross Street and reenter the white Honda Accord. She then traveled to a minimart and returned shortly thereafter, parking the vehicle in the driveway next to the house. She exited the sedan and proceeded to walk to the third-floor apartment at 84 Cross Street.
At approximately 10:20 PM, Montiverdi observed Rosario and Tapia leaving the third- floor apartment via the deck. They each carried a large, heavy roll-away suitcase which they struggled to carry, stopping at one point on the second-floor deck to readjust how they carried the bags before descending the stairs to the street. Rosario and Tapia then approached the white Honda Accord. Rosario went directly to the driver's side door of the car while Tapia remained with the suitcases near the vehicle's trunk.
Montiverdi and other officers, dressed in plain clothes, then approached Defendants with their badges displayed and announced themselves as "police." Agents asked the men about the contents of the bags. Both Rosario and Tapia immediately declined ownership of the luggage and denied carrying the bags downstairs. Agents conversed with Rosario in English, which he
_ understood, and communicated with Tapia in English and Spanish through a Spanish-speaking agent. They were not handcuffed during the interaction. After Rosario and Tapia denied ownership and control of the bags, agents opened them with a sharp cutting instrument.[2] Each bag contained twenty bricks of cocaine. Rosario and Tapia were then placed under arrest.
Afterwards, agents determined that Tapia was the individual identified from a photograph by the SOI as Fiero.
[2] At least one suitcase, and perhaps both, had a padlock and had to be cut open. One suitcase was a hardshell type while the other appeared to be a softshell type.
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Montiverdi and other agents then went inside 84 Cross Street where they encountered Mercedes outside the third-floor apartment. Agents identified themselves as law enforcement officers. An agent fluent in Spanish spoke to Mercedes. She informed the agents that she rented the third-floor apartment. Mercedes then consented to a search of the third-floor apartment verbally and in writing. Inside a bedroom in the apartment agents located two additional suitcases similar in appearance to the ones carried outside the building by Rosario and Tapia. Each suitcase contained twenty kilograms of cocaine. In total, police seized approximately eighty kilograms of cocaine in the four suitcases.
Additional factual findings are integrated in the following Rulings of Law.
RULINGS OF LAW
Defendants argue that police unlawfully seized them and that the warrantless searches of the luggage outside 84 Cross Street were unconstitutional. They do not directly challenge the validity ofMercedes's consent to search the third-floor apartment at 84 Cross Street; rather, they seek suppression of the contents found therein as fruits of the unlawful stop and searches outside the premises.
1. Applicable Law. As an initial matter, the court sua sponte raised the issue of whether federal or state law applies to Defendants' constitutional challenges. After due consideration, the court concludes that federal law applies in the circumstances of this case. The record before the court does not support a finding that there was a "combined enterprise" between federal agents and state or local law enforcement officials to investigate Fiero and the cocaine suspected of being stored inside the third-floor apartment at 84 Cross Street. See Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 792 (1998). See also Commonwealth v.
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Gonzalez, 426 Mass. 313, 315-317 (1997); Commonwealth v. Jarabek, 384 Mass. 293,297 (1981).
Here, a federal TFO assigned to the DEA in New York contacted Montiverdi, a DEA special agent assigned to a federal task force focusing on cross-border narcotics trafficking, to relate information learned during a federal investigation. That information, which originated at least in part from DEA New York's SOI, identified the location where 100 kilograms of cocaine was believed to be stored and relayed the concern of its potential removal from that location following the arrest of an individual earlier that day in Lawrence for drug trafficking. A federal prosecutor was assigned to the investigation. A federal search warrant issued for electronic devices seized during the investigation. State and local police had no decision-making authority with respect to the investigation. Montiverdi, for his part, believed this to be a federal investigation that would result in federal prosecutions.
Simply because federal authorities requested state officials to seek indictments of Defendants following their arrests does not mean state law must apply. Nor does the fact that DEA agents received intelligence from a local detective or assistance from state and/or local police in arresting Rosario and Tapia compel the conclusion that state law applies in this case. Even if state or municipal officers did assist DEA agents in the investigation and arrests, the record here does not support a finding that their participation "was high enough, either in quantity or quality, to alter the essentially Federal nature of the investigation." Gonzalez, 426 Mass. 317. The court therefore concludes federal law applies in evaluating Rosario's and Tapia's constitutional challenges.
2. The Police Encounter. No "seizure" of Defendants occurred under the Fourth Amendment to the United States Constitution when Montiverdi and one other agent approached
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Rosario and Tapia with their badges displayed, announced themselves as police, and asked the men what was inside the suitcases. See United States v. Jones, 673 F.3d 497, 501 - 502 (6th Cir. 2021) (no seizure when officer ordered defendant to stop and began chasing him; seizure occurred only when officer physically restrained defendant by tackling and handcuffing him). "[N]ot every encounter between a police officer and a citizen is an intrusion requiring an objective justification." United States v. Mendenhall, 446 US 544, 553 (1980). The United States Supreme Court has made clear, "[s]ince Terry, we have held repeatedly that mere police questioning does not constitute a seizure." Florida v. Bostick, 501 U.S. 429,434 (1991), citing Florida v. Royer, 460 U.S. 491 (1983)
Under the Fourth Amendment, a seizure of a person occurs only when a reasonable person objectively would not feel free to leave, decline the officer's requests, or otherwise terminate the encounter. Id. at 435-437. Courts must consider "all of the circumstances surrounding the encounter." Id. at 437. An encounter with a police officer does not constitute a seizure in the federal constitutional sense, however, unless the officer restrains the person's liberty by means of physical force or a show of authority to which the individual submits. California v. Hodari D., 499 U.S. 621, 625 - 626 (1991).
Here, only two of the six or seven agents on scene initially approached Defendants. As they did, Montiverdi did not have his gun drawn and there is no credible evidence before the court that the agent accompanying him drew his weapon. The agents did not handcuff, restrain, or physically touch Tapia or Rosario, nor did they block Defendants' movements or use harsh or commanding language implying that compliance would be compelled. See Mendenhall, 446 U.S. at 554-555 (discussing factors to consider in determining whether police tactics overcame detainees will thereby resulting in seizure). In these circumstances, the court concludes, a
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seizure of Rosario and Tapia did not occur under the Fourth Amendment when agents approached the men with their badges displayed, made themselves known as police officers, and asked Defendants about the contents of the suitcases. See United States v. Holloway, 499 F.3d 114, 117 (1st Cir. 2007) (no seizure when defendant verbally refused officers' instruction to show identification and attempted to flee because defendant never submitted to officers' authority); United States v. Brown, 765 F.3d 278,289 (3d Cir. 2014) (no seizure when four officers approached defendant in public space and displayed badges but did not activate lights or sirens, brandish weapons, block defendant's path, or touch or otherwise threaten defendant); United States v. Mosley, 743 F.3d 1317, 1327 (10th Cir. 2014) (seizure occurred only when defendant put hands up and not when officers raised weapons and yelled "hands up" since defendant did not immediately manifest compliance with orders). Thus, Defendants' denials of ownership and possession of the bags were not made during a "seizure" of Defendants.
3. The Threshold Inquiry. Even assuming a "stop" or "seizure" of Defendants occurred in this case, it was permissible under the Fourth Amendment. It is well settled that a brief investigatory stop is lawful when police have reasonable suspicion to believe an individual is engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 28 - 30 (1968). Reasonable suspicion is "something more than an inchoate and unparticularized suspicion or hunch .. . [but] is considerably less than proof of wrongdoing by a preponderance of the evidence ... [and] is obviously less demanding than that for probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotations and citations omitted).
An officer must "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant th[e]_intrusion." Terry, 392 U.S. at 21. Courts examine the totality of the circumstances - the whole picture - in determining whether an
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objectively reasonable police officer suspected criminal wrongdoing which would justify the stop. See Navarette v. California, 572 U.S. 393, 397-399 (2014); United States v. Cortez, 449 U.S. 411, 417 (1981). Factors contributing to the reasonable suspicion calculus are not discarded simply because there are alternate innocent explanations for those factors. District of Colombia v. Wesby, 583 U.S. 48, 61 (2018) (officers not required to rule out suspect's innocent explanation for suspicious facts); Sokolow, 490 U.S. at 9-10 (wholly lawful conduct may justify officer's suspicion that criminal activity may be occurring). Moreover, federal courts grant considerable deference to the observations and conclusions of experienced police officers that criminal activity may be afoot although such activity may seem innocuous to a layperson. United States v. Arvizu, 534 U.S. 266, 277 (2002).
Balancing the need to seize Defendants against the invasion which the seizure entailed, Terry, 392 U.S. at 21, the court concludes the threshold inquiry of Rosario and Tapia was permissible where agents objectively and reasonably suspected the two men were removing a large quantity of cocaine from 84 Cross Street. See United States v. McDonald, 804 F.3d 497, 502 (1st Cir. 2015) (stop valid because reasonable suspicion objectively existed).
Here, Montiverdi received information from a TFO in New York that an individual known as "Manny" had been arrested in Lawrence with narcotics earlier that day, that 100 kilograms of cocaine was stored inside a specific apartment at a specific address in Lawrence by an individual known as Fiero, that Fiero operated a white Honda Accord, and that federal agents in New York were concerned the cocaine would be moved from the location following Manny's arrest. Agents then took steps to corroborate this information.[3]
[3] The court recognizes that the information relayed by the TFO in New York originated, at least in part, from a known SOI, and further that the Commonwealth did not elicit any testimony at the hearing regarding the SOI's basis of knowledge or his/her veracity or reliability. However, the United States Supreme Court in Illinois v. Gates, 462
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Montiverdi confirmed that a person identified as Emmanual Barroso in fact had been arrested in Lawrence earlier that day for trafficking in methamphetamine and fentanyl. Agents also verified the location of the house and the third-floor apartment identified by the SOI from a photograph as housing the cocaine. Montiverdi further observed the type of car Fiero operated (a white Honda Accord) arrive at the premises. The Honda bore an unregistered Georgia temporary tag - a method of operation commonly employed by narcotics traffickers to thwart law enforcement. See United States v. Garza, 727 F.3d 436,441 (2013) (officer's experience is contributing factor to reasonable suspicion analysis). Montiverdi later confirmed the predictive concern that a large quantity of cocaine might be removed from the apartment following Manny's arrest when they observed Defendants struggling to carry two suitcases down the exterior deck stairs from the third-flour apartm<::nt idt:ntified by the SOI. St:e United States v. Keough, 893 F.3d 232,238 (4th Cir. 2018) (threshold inquiry permissible where police confirmed tip information prior to seizure and officers' observations supported reasonable suspicion); United States v. Singh, 363 F.3d 347, 356 (2004) (police had reasonable suspicion defendants were smuggling contraband in tractor trailer rig after corroborating tip from known confidential informant).
Considering the totality of the circumstances here, agents reasonably suspected that Rosario and Tapia were removing a large quantity of cocaine from the location and a brief investigatory stop of them to confirm or dispel their suspicions was not constitutionally
unreasonable. Thus, the stop of Defendants and the questions put to them regarding the luggage survive their federal constitutional challenges.
U.S. 213, 230-231 (1983), rejected a "rigid" application of the two-pronged Aguilar-Spinelli test to detennine probable cause in favor of a "totality-of-the-circumstances approach," which is the same approach used in detennining whether police had reasonable suspicion to believe criminal activity was afoot. See Navarette, 572 U.S. at 397-399.
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4. Probable Cause to Search and Arrest. The information learned through the lawful threshold inquiry, on top of all the circumstances listed above, tipped the quantum of evidence from reasonable suspicion to probable cause to arrest Rosario and Tapia and search them and the luggage incident to their arrest.[4] "An officer may conduct a warrantless arrest as long as there is 'probable cause to believe that the suspect has committed or is committing a crime."' United States v. Bizier, 111 F.3d 214, 216-217 (1st Cir. 1997), quoting United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir. 1995). When Rosario and Tapia both denied ownership of the luggage - and more to the point denied even carrying the suitcases from the third-floor apartment to the white Honda Accord after Montiverdi saw them doing so just moments before - reasonable suspicion quickly morphed into probable cause to believe the travel bags contained cocaine and that Rosario and Tapia were committing narcotics-related offenses. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (probable cause to arrest exists when at moment of arrest, "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense."); Illinois v. Gates, 462 U.S. 213,238 (1983) (probable cause defined as "a fair probability that contraband or evidence of a crime will be found in a particular place.").
[4] Because the court concludes that the agents had probable cause to arrest Rosario and Tapia and search the luggage incident to their arrest, the court need not resolve Defendants' arguments that the agents' entry onto the driveway at 84 Cross Street and warrantless search of the suitcases there was unlawful because the search occurred within the curtilage of the property, pursuant to United States v. Jones, 565 U.S. 400 (2012) and its progeny. The court does note that, pursuant to Katz v. United States, 389 U.S. 347 (1967), for purposes of determining whether a "search" occurred, Defendants had no reasonable expectation of privacy in the luggage. "An individual who abandons property forfeits any reasonable expectation of privacy in the property." United States v. Williams, 194 F.3d 100, 109 (D.C. Cir. 1999). Both Rosario and Tapia declined ownership of the suitcases. They also denied possessing the containers. By disavowing any association with the suitcases, Defendants voluntarily abandoned the property that agents observed in their possession moments earlier and thereby forfeited any reasonable expectation of privacy in the contents of the luggage. See., e.g., United States v. Faust, 853 F.3d 39, 47 n.5 (1st Cir. 2017)·(warrantless search of backpack valid because defendant forfeited reasonable expectation of privacy when he discarded backpack while fleeing from police).
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Once the agents had probable cause to arrest, they were authorized to search the suitcases incident to arrest. See United States v. Perez, 89 F.4th 247, 248 (1st Cir. 2023) (search of backpack carried by defendant which police removed during handcuffing was lawful under Fourth Amendment as search incident to arrest); United States v. Eatherton, 519 F.2d 603, 609 (1st Cir. 1975) (search of briefcase dropped to ground by defendant when he was arrested permissible under search-incident-to-arrest exception to warrant requirement). It matters not that the search of the suitcases took place before Rosario and Tapia were formally arrested. Rawlings
v. Kentucky, 448 U.S. 98, 111 (1980) (search preceding arrest permissible where police had probable cause to place defendant under formal arrest prior to search and formal arrest followed quickly on heels of challenged search); United States v. Goddard, 312 F.3d 1360, 1364 (11th Cir. 2002) (search before formal arrest valid where police had probable cause to arrest defendant for drug possession).
5. Fruits of the Poisonous Tree. Having found that the agents' actions in this case did not violate Defendants' Fourth Amendment right to be free from unreasonable searches and seizures, there is no adulterated fruit to suppress. Wong Sun v. United States, 371 U.S. 471, 487- 488 (1963). Consequently, the forty kilograms of cocaine located by agents inside the third-floor apartment at 84 Cross Street is not subject to suppression.
ORDER
For the aforementioned reasons, Rosario's Motion to Suppress (Warrantless Search) (Paper No. 18, Criminal Case No. 2477CR0336) and Tapia's Motions to Suppress Evidence-
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Warrantless Seizure & Search (Paper No. 28, Criminal Case No. 2477CR0337, are DENIED.
/s/William F. Bloomer
Justice of the Superior Court
July 15, 2026