Commonwealth v. Sotto

6 Mass. L. Rptr. 459
Massachusetts Superior Court·Decided March 15, 1997·No. No. 960505·Published

Opinion

Toomey, J.

INTRODUCTION

Defendant has moved to suppress all evidence, real and testimonial, obtained as a consequence of the police conduct in stopping defendant’s motor vehicle and seizing certain items. The motion was heard on January 23, 1997, and, based on the evidence there adduced, I enter the following findings of fact.

FINDINGS OF FACT

1. At about 9:00 P.M. on May 17, 1996, LT. Richardson of the Worcester Police Department received a telephone call from an unidentified caller. The caller’s message was in substance as follows:

Do you want to make a drug bust? A blue Subaru, driven by a white male, whose name is John, will meet an Hispanic, whose name is Jose, at Ernie’s Car Wash on Grove Street. There will be a sale of two “8 balls” and a $50 rock.

[460]*460LT. Richardson had no sense of the reliability of the anonymous caller or the basis of his knowledge. The call did not further describe “Jose” or the vehicle he would be driving.

2. LT. Richardson immediately proceeded to a surveillance location across Grove Street from the car wash. Other police officers, at the direction of LT. Richardson, assembled at a number of surveillance locations in the area.

3. SGT. Brooks, Massachusetts State Police, was positioned to the rear of the car wash behind a stockade fence. There were gaps in the fence through which he could survey the rear of the car wash and its paved back lot. His view was unobstructed and the area was well-lit. SGT. Brooks was, by training and experience, very knowledgeable with respect to the recognition of controlled substances and the common characteristics of drug transactions. During his fourteen year career, he had made over eight hundred arrests of controlled substance law violators, over ninety percent of which involved cocaine. He had experience dealing with informants and had done undercover work, including about one hundred instances in which he made “buys.”

4. At approximately 9:15 P.M., SGT. Brooks observed a blue Subaru enter the back lot of the car wash. The driver was a white male. The vehicle came to a stop near the vacuum cleaner machines behind the car wash and about fifty feet from SGT. Brooks’ position. The white male sat in the vehicle for a period of time and gazed about the back lot. Finally, he exited from the blue Subaru and picked up a vacuum hose. The white male did not insert money into the receptacle or otherwise activate the vacuum cleaner. He carried the hose to the vehicle and again peered around the area for about foriy-five seconds. He did not apply the hose to the vehicle’s interior. Finally, the white male dropped the hose to the pavement and re-entered the blue Subaru. He remained inside, looking around for another thirty to forty seconds, until a blue Isuzu entered the back lot and parked near the vacuum cleaners, ten feet from the blue Subaru. The tinted windows of the Isuzu made surveillance of its occupants impossible.

5. SGT. Brooks saw the white male exit from the Subaru and approach the Isuzu. The white male conversed with the male operator through the open driver’s window of the Isuzu for about five seconds. The white male then reached into his pocket, extracted a folded wad of currency and handed it through the window to the Isuzu operator. The operator brought his hand, palm upward, to the level of the window; in the hand were lolly-pop shaped, knotted baggies containing white powder. The white male took the baggies from the hand of the Isuzu operator. SGT. Brooks notified his colleagues, by radio, that the transaction had been accomplished and directed that they “move in.”

6. Worcester Police Officer Oquendo had been posted across Grove Street from the car wash. He responded to SGT. Brooks’ order by driving to the front lot of the car wash; the Subaru was proceeding to the front of the car wash and Oquendo positioned his vehicle to block the Subaru’s departure. He observed the Subaru’s operator make a downward gesture with his hands toward the floor of the Subaru. Officer Oquendo commanded the operator to exit from the Subaru.

7. As the operator complied with the exit order, Oquendo’s partner, Trooper Peasley, gazed, from outside the Subaru, into the Subaru, the interior lights of which were illuminated, and saw three items resting on the center console between the front seats. Trooper Peasley, a veteran of about one hundred arrests of controlled substance law violators and numerous undercover “buys,” recognized the items to be packages containing cocaine. He seized the three items. Oquendo arrested the operator for a controlled substance law violation. The operator said, not in response to any interrogations, “I saw the officers and threw the stuff onto the console.”

8. Officer Oquendo was able to see the person who had, by this time, exited from the Isuzu. The person was in the custody of a State Police Trooper who told Oquendo that the person had identified himself as “Carlos.” Oquendo, who was familiar with the person, having lived in the same area of Worcester and attended school with him over a period of about seventeen years, responded, “That’s not his name.” Oquendo recognized the person to be Jose Sotto (hereinafter the defendant).

9. The trooper advised the defendant of his Miranda rights in English. The defendant did not respond. Oquendo — who was fluent in Spanish, had advised other suspects in Spanish of their Miranda rights on about thirty occasions and had served as a Spanish interpreter for the police on more than fifty occasions — informed defendant, in Spanish, of his Miranda rights. Defendant nodded in response to the advisement. 1

10. Using Spanish, Oquendo addressed the defendant: “Where are the drugs and money.” Defendant replied, in Spanish: “She [pointing to a female seated in the Isuzu] has the drugs, but she has nothing to do with them.” Oquendo then seized cocaine from the female. During his exchange with Oquendo, defendant was friendly and spoke a mix of English and Spanish. The area was well lit by the car wash’s lamps.

11. Worcester Police Officer Tatum searched the Isuzu after defendant had been placed in custody for a controlled substance law violation. He found a black pouch on the seat of the Isuzu. Tatum opened the pouch and seized currency in the amount of one thousand, nine hundred and seventy dollars ($1,970.00).

[461]*461DISCUSSION

1.Probable Cause to Arrest the Defendant

Usually, in order to comply with the Fourth Amendment to the United States Constitution and article 14 of the Massachusetts Declaration of Rights, an arrest and search executed in reliance upon an informant’s tip must meet the two-pronged standard of probable cause set forth in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). See also, Commonwealth v. Cast, 407 Mass. 891, 896 (1990). To satisfy the Aguilar-Spinellitest the Commonwealth must show; (1) Some underlying circumstances from which the law enforcement officials could have concluded that the information was reliable, and (2) some underlying circumstances which demonstrate a basis of the informant’s knowledge. Cast, 407 Mass. at 896. At bar, the informant’s tip is, concededly, inadequate under the aforementioned tests.

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Commonwealth v. Sotto, 6 Mass. L. Rptr. 459 (Mass. Ct. App. 1997).

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