Commonwealth v. Martinez

22 Mass. L. Rptr. 319
CourtMassachusetts Superior Court
DecidedMarch 22, 2007
DocketNo. 0616
StatusPublished

This text of 22 Mass. L. Rptr. 319 (Commonwealth v. Martinez) 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. Martinez, 22 Mass. L. Rptr. 319 (Mass. Ct. App. 2007).

Opinion

Lu, John T., J.

INTRODUCTION

The defendant, Rafael Martinez (Martinez), moves to suppress cocaine, heroin, and cash recovered from his pocket, as well as cash retrieved from the center console of his car, by Massachusetts State Police on December 6, 2005. The court conducted an eviden-tiary hearing on January 22, 2007, at which state police trooper Jay Conant (Conant) testified.

Finding that police had probable cause to search Martinez, the court denies the motion to suppress as to the cocaine, heroin, and cash found on Martinez. Finding that police lacked probable cause to search the car, the court allows the motion to suppress the cash found in the car.

FINDINGS OF FACT

Based on the evidence presented and reasonable inferences from the evidence, the court makes the following findings of fact.

1. On December 6, 2005, Conant was an experienced drug investigator assigned to Lawrence. While at the Lawrence Police station, he interviewed two informants. He knew the identities of the informants who said they knew a drug seller known as “Jimmy” who would sell them heroin.1

2. In the presence of several narcotics investigators including Conant, the informants telephoned Jimmy and negotiated a purchase of two fingers of heroin, which was about twenty grams, and an ounce of cocaine. One of the informants spoke to Jimmy in Spanish. The informant said Jimmy would make the delivery in a dark-green Honda sedan with tinted windows in forty-five minutes to an hour.

3. The delivery was to be to 500 Haverhill Street in Lawrence, a small apartment building at which these police officers had previously made drug arrests.

4. Plainclothes drug investigators and the two informants parked in a driveway next to 500 Haverhill Street. After forty-five minutes to an hour, Jimmy had not arrived. One of the informants called him and he said that he was sending his cousin. One of the informants told Conant that they knew the cousin, that they had purchased illegal narcotics from him and that he was a Hispanic male, 5’6" to 5’7," in his mid to late twenties.

5. About an hour later a dark green Honda with tinted windows pulled up across from 500 Haverhill Street and slowly moved forward, pulled against the curb, and parked.

6. The informants identified the Honda as Jimmy’s. A man got out of the car and as he crossed the street, the informants identified him as Jimmy’s cousin, Martinez. The car, which was parked across the street from 500 Haverhill Street, was a substantial distance from 500 Haverhill Street. Conant radioed other police officers that Martinez was the target.

7. Martinez walked into 500 Haverhill Street and found himself standing, face to face, with Trooper Mark Blanchard (Blanchard), who was in plainclothes but wearing a police badge around his neck. Blanchard told Martinez he was with the state police.2

8. Martinez put his hand on his left jacket pocket and Blanchard reached for Martinez’s left arm. There was a struggle. During the struggle, Blanchard touched the pocket Martinez reached for and felt what he thought was heroin or cocaine. It did not feel like a weapon; it felt like it could have been heroin or cocaine but its feel was [320]*320consistent with many objects.3 Blanchard thought it was the illegal drugs to be delivered.

9. Blanchard pulled the contents of the pocket out and found the heroin and cocaine.

10. Other police went to the green Honda and found cash in the amount of $4800 in an unknown location, which they seized.4 Victor Vasquez (Vasquez) was seated in the car. Police arrested him.

11. Conant did not observe the events inside 500 Haverhill Street that are described in findings of fact seven through nine. Shortly after the arrests of Martinez and Vasquez, Conant spoke with Blanchard who described the events. Conant incorporated the description in his report; the report contained an accurate summary of Blanchard’s observations.

12. Likewise, Conant did not observe the search of the car. However, no evidence was offered as to how police searched the car, where they were at the time, or what they believed the items they found were.5

DISCUSSION

1.Sufficiency of the Commonwealth’s Evidence of a Search

Conant was the only police officer to testify on behalf of the Commonwealth. Blanchard was present at the beginning of the hearing but was released in the presence of and with the acquiescence of the defendant. Conant’s testimony is admissible because “hearsay testimony is admissible in a motion hearing relating to suppression.” Commonwealth v. Fletcher, 52 Mass.App.Ct. 166, 168 n.2, furth. app. rev. den., 435 Mass. 1104 (2001).

In Commonwealth v. King, 67 Mass.App.Ct. 823 (2006), the Appeals Court addressed the issue of one officer testifying at a motion hearing to another officer’s observations (which led to probable cause to search and arrest). In King, the court held that the Commonwealth could not rely upon the hearsay testimony of the testifying officer as to what the non-testifying officer observed, because the record presented to the court was incomplete as to the events that might provide probable cause to search. King, 67 Mass.App.Ct. at 830. The Appeals Court stated, “On the limited record presented to us, we have no way of determining how [the non-testifying officer] discovered the substance, where he was at the time, what he believed it to be, or whether his belief could be deemed reasonable. Nor do we know exactly what he said upon drawing [the testifying officer’s] attention to the substance. In short, given the incomplete record, there are too many unanswered questions for us to conclude that the police had probable cause to search the defendants’ automobile." Id.

Here, Conant’s testimony provides sufficient details describing events justifying probable cause to search Martinez. Conant spoke to Blanchard shortly after the arrests and put Blanchard’s description of events in his report. While perhaps not ideally presented, the testimony is sufficient to satisfy the Commonwealth’s burden.

2.The Stop

“A person has been seized ... if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall 446 U.S. 544, 554 (1980). No constitutional rights are implicated when an officer approaches an individual in a public place and observes evidence of a crime in plain view, unless the officer has precipitated a stop in the constitutional sense by engaging in “show of authority” factors that make the individual believe he is not free to leave. Commonwealth v. Doulette, 414 Mass. 653, 655-56 (1993). One example of a circumstance that demonstrates a show of authority is the physical touching of the person by the police officer. Commonwealth v. Pimentel 27 Mass.App.Ct. 557, 560, furth. app. rev. den., 405 Mass. 1205 (1989).

The facts in this case are similar to those in Commonwealth v. Nestor N., A Juvenile, 67 Mass.App.Ct. 225, furth. app. rev. den., 447 Mass. 1112 (2006). In Nestor N., A Juvenile,

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Bluebook (online)
22 Mass. L. Rptr. 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-martinez-masssuperct-2007.