Commonwealth v. Lopez

5 Mass. L. Rptr. 343
CourtMassachusetts Superior Court
DecidedJune 15, 1996
DocketNo. CR 95773107
StatusPublished

This text of 5 Mass. L. Rptr. 343 (Commonwealth v. Lopez) 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. Lopez, 5 Mass. L. Rptr. 343 (Mass. Ct. App. 1996).

Opinion

Welch, J.

Introduction

The defendant, Raphael Lopez, now moves pursuant to Mass.R.Crim.P. 13 to suppress all evidence seized from his person or from as area of the premises under his exclusive control. The defendant claims that the evidence seized was not pursuant to a lawful arrest, it was not in plain view, there was no probable cause, no warrant, no exigent circumstances, without consent, and in violation of the Fourth and fourteenth Amendments of the United States Constitution, Article IV of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and G.L.c. 276.

After holding an evidentiary hearing, this court disagrees with the defendant. The motion must be denied.

Findings of Fact

The following findings of fact were dictated from the bench:

On September 18, 1995, Detective Petralia and Detective Burokas of the Lawrence Police Department were dispatched to 12-14 Crosby Street in Lawrence, Massachusetts to investigate reports of drug activity. This particular apartment was the subject of an ongoing drug investigation for the previous year.

In fact, on Friday, September 15, 1995, both Detective Petralia and Detective Burokas were involved in a reverse sting operation out of that exact apartment. At that time they had arrested 12 people, where the police were selling crack cocaine. The method in which these transactions took place was that someone would come up to the first-floor-rear apartment, tap on the kitchen window, the window would be opened or was open so that some object, such as money, could be passed through and crack cocaine would be handed out through the window. This occurred on twelve occasions in a short period of time on the 15th, and those people were arrested. At that time it was apparent that no one lived in the apartment, but rather, that it was simply being used as an illegal drug distribution center.

After their busy Friday evening operating this “reverse sting,” the two detectives were off duty for the weekend. On Monday, September 18, 1995, Detectives Petralia and Burokas return to work at five o’clock in the evening. Upon arriving at their desks, they review messages relating reports that drug distribution activity was again underway at the same apartment located at 12-14 Crosby Street. They also personally receive at least one anonymous phone call relaying the same information.

Later that evening, at approximately 9 p.m., the detectives return to 12-14 Crosby Street to verify the reports of illegal drug activity. Both detectives proceeded to the third floor apartment and asked the tenant, an individual with whom they were acquainted, if they could go through this apartment so they could gain access to the rear hallway which would allow them to enter the first-floor-rear apartment, the same apartment where the reverse sting had been operated the Friday before.

The tenant on the third floor agreed to their request and both detectives went down the stairs and found the door to the first-floor-rear apartment open. They did a sweep search of the apartment at this time. They did find evidence that the apartment had recently been occupied in some manner; that is that there were candles lit in the apartment. Indeed, on the 15th they had found the same candles lit and they had snuffed them out. They return on Monday and find the candles lit again. The officers had further evidence that drug activity was again occurring at this location. Besides the calls regarding drug activity, when the detectives pulled up to the apartment building they saw a white male in the back alleyway near the kitchen window, the same kitchen window where the cocaine was distributed before, and he flees from that location upon the police’s arrival.

Given this evidence, they have a reasonable suspicion that drug activity is going on there again. Within five minutes of their being in that first-floor-rear apartment on September 18, the detectives hear a tap on the window. At this time Detective Petralia looks out through closed mini-blinds and identifies the defendant, Raphael Lopez as the person knocking on the kitchen window, the same kitchen window where drug dealing had been going on. At this time the detective puts his hand underneath the open part of the window. At that time the defendant, Raphael Lopez, does not hand him money, but instead whistles, looks around and says in Spanish, words to the effect, open the door. Detective Burokas, who understands Span[344]*344ish, informs Detective Petralia what the defendant said.

Thereupon, Detective Burokas goes out of the kiLchen into a common hallway and to the door which leads to the back alley. He slides the upper bolt from the door so as to open it, opens the door and stands behind the door. At that time the defendant enters the doorway into the rear common hallway. The defendant then turns left heading toward the kitchen, the same kitchen where the drug activity had been taking place. This is a location where the defendant had no right of occupancy, since no one was living in the apartment. At that time Detective Petralia is actually coming out of the kitchen door into the common hallway and his badge is apparent. At that moment, Raphael Lopez notices Detective Petralia and Detective Petralia announces that he is a police officer.

Immediately, thereafter, the defendant Raphael Lopez, moves his right hand in a grasping motion toward a bulge located in the small of his lower back and begins to turn towards the doorway he has just entered and, indeed, attempts to jump back out that door. At this time Detective Burokas comes out from behind the door which was opened for the defendant and also observes the defendant grabbing for a bulge in the small of his back. Both detectives see a large bulge in the small of the defendant’s back, underneath his clothing. The bulge was approximately at the belt line.

This Court finds that at this time both Detectives had a reasonable apprehension that the bulge was indeed a weapon. Based on the officers’ experience and expertise it was not uncommon for people buying or selling or distributing cocaine in Lawrence to be armed. It was not uncommon for someone to conceal both drugs and a weapon, be it a knife or a handgun, in the small of their back. I find that both detectives were reasonably and appropriately concerned that the defendant was concealing a weapon in the small of his back, under his clothes and was reaching for that weapon. It is apparent to this Court that both Detectives had reasonable articulable suspicion under the Terry case to permit a threshold inquiry and pat down of the defendant, not only as to whether he was carrying a concealed weapon, but also whether he was involved in the cocaine transactions which were occurring at that kitchen location in 12-14 Crosby Street on the first-floor-rear apartment.

As the defendant stalled to flee, Detective Burokas grabbed his right hand and stopped him. The hand which Burokas grabbed was the hand which was moving toward the object concealed under the defendant’s clothing, which the police thought might be a weapon. Burokas then touched a softball size package which felt both soft and hard. He felt many objects inside the package which felt like ping-pong balls. Based on his training and experience, as well as what he had seen of the defendant’s suspicious conduct at the window, Detective Burokas believed that to be a package containing many bundles of crack cocaine.

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Bluebook (online)
5 Mass. L. Rptr. 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-lopez-masssuperct-1996.