No. 96-1065-001/009Commonwealth of Massachusetts Superior Court DEPARTMENT CRIMINAL ACTION MIDDLESEX, ss.
February 28, 1997
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS EVIDENCE
BRASSARD, JUSTICE.
The defendant is charged with various crimes, including aggravated rape, carjacking and armed robbery. The defendant now moves to suppress evidence seized from his apartment and a vehicle on June 7, 1996 claiming that the evidence was seized pursuant to search warrants that lacked probable cause. The defendant also argues that the search of the vehicle was conducted before the warrant was actually obtained and therefore the search was in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. The court conducted an evidentiary hearing on the motion on February 24, 1997. Three witnesses were called, Sergeant Stephen Matthews, Trooper Timothy Donnelly and Trooper Brian Connors.
For the reasons which follow, the defendant’s motion to suppress evidence is denied.
BACKGROUND
The Commonwealth alleges that on the evening of June 5, 1996, nineteen year old James Najarian and his friend, sixteen year old Erin Hegge were parked in Mr. Najarian’s 1991 Camaro adjacent to the Mystic Lake in Medford, Massachusetts. Ms. Hegge was in the driver’s seat and Mr. Najarian was in the front passenger seat. While the two were talking, the driver’s door was suddenly opened and a man said, “get out of the car; I’ve got a gun; get out of the car”. Ms. Hegge stepped out of the vehicle and was slapped across the face causing her to fall to the ground. While this man was attempting to rob Ms. Hegge, one man stood at the driver’s door and two others stood at the passengers’s side. The latter two individuals assaulted Mr. Najarian and demanded his money. One of these men, later identified as the defendant, left Mr. Najarian and approached Ms. Hegge. The remaining three men continued to assault Mr. Najarian, taking his money, jewelry, a beeper and some clothing.
The defendant pushed Ms. Hegge and then forcibly moved her to a curb where he assaulted her, threatened her, partially disrobed her and attempted to force her to have sexual intercourse. He eventually succeeded in forcing his penis into Ms. Hegge mouth. After he removed his penis from her mouth, the defendant began to strangle her. The man who had first ordered Ms. Hegge from the vehicle, who had been standing near the defendant during this assault and rape, convinced the defendant to leave the scene. One of the assailants then drove away in Mr. Najarian’s car while the remaining three men drove away in a getaway car driven by a fifth individual.
Fearing that the assailants would return, Ms. Hegge and Mr. Najarian approached the lake. Ms. Hegge hid in a boat docked nearby while Mr. Najarian ran to get help at a neighboring house in Arlington.
FINDINGS OF FACT
Based on all of the credible evidence, I find the following facts. Sometime in the early morning hours of June 6, 1996, the state police were notified of the above-described incident and responded to the scene. Sergeant Stephen Matthews of the Massachusetts State Police was involved in the investigation. Sergeant Matthews has been a state trooper since June of 1981. In January of 1995, Sergeant Matthews began working as a Supervisor in the Narcotics Unit at the Middlesex District Attorney’s Office.
On June 6, 1996, Mr. Najarian’s Camaro was recovered in Somerville. The stereo, speakers and amplifier had been stripped from the vehicle. On June 6, 1996, a Confidential Informant (“CI”) whose identity was known to Sergeant Matthews and the officers involved in this investigation spoke with Sergeant Matthews. CI told Sergeant Matthews that Jefferson Silva and three other males unknown to CI were involved in the rape and carjacking at Mystic Lake.
As a result of that tip, Sergeant Matthews went to Silva’s apartment which was located in a rooming house. When Sergeant Matthews arrived, the door to Silva’s room was unlocked and partially opened. Sergeant Matthews observed Silva laying on a makeshift bed in the middle of the room. Sergeant Matthews read Silva his Miranda rights and noticed what appeared to be car speakers mounted on a grey rug in the room. The speakers matched the description of the speakers taken from Mr. Najarian’s Camaro.
Silva stated that he had been involved in the incident at Mystic Lake and wished to cooperate with the investigation. He disconnected the speakers and handed them over to Sergeant Matthews. Silva then told Sergeant Matthews that the other men involved in the crime were Chris Smith, a black male by the name of “Street” and two Salvadoran men, one known to Silva as “Walter” and “Shorty”. Silva did not know the name of the second Salvadoran man.
Silva then accompanied Sergeant Matthews and made a confession of his knowledge of the incident. Silva stated that on the evening of June 5-6, 1996, he met up with the aforementioned individuals and drove to Mystic Lake in Medford in Street’s grey Toyota Corolla in search of someone to rob. Silva stated that he remained in the Toyota and acted as a lookout as the four other men went toward a parked car. After approximately 25 minutes, Silva drove the Toyota further down near the lake and noticed a female sitting on a curb and “Shorty” and the other Salvadoran rummaging through a Camaro. Silva then returned to his original lookout spot. Five minutes later, three of the men returned to the Toyota and they drove off. Smith followed them in the stolen Camaro. Silva stated that Street told him he had tried to “get into” the girl but could not and Shorty stated that he had gotten a gold chain and white jacket from the couple.
In addition to this information, Silva stated that he had been inside the apartment of Street’s girlfriend, Margharida Goncalves, at 585 Main Street, third floor in Medford earlier in the day of June 6, 1996. He stated that Street lived there with his girlfriend. Sergeant Matthews drove by 585 Main Street with Silva and Silva identified the residence as Street’s residence and also identified a blue Toyota Corolla parked in front of 585 Main Street as the car he had driven during the commission of the crime. The Toyota Corolla had a Massachusetts registration number 153 ESS and was registered to Margharida Goncalves. The police arrested Edward Street, the defendant in this case, at approximately 8:30 p.m. on June 6, 1996.
On June 6, 1996, after the defendant had been arrested in connection with these crimes, Sergeant Matthews began drafting affidavits in support of applications for warrants to search the premises at the third floor of 585 Main Street in Medford and a blue Toyota Corolla registered to Margharida Goncalves. The affidavits filed in support of the applications for the search warrants at issue in this case described the foregoing events and were marked as exhibits for this hearing.
While Sergeant Matthews was preparing the search warrant applications, Troopers Connors and Donnelly, maintained surveillance of 585 Main Street and the Toyota Corolla which was parked on Main Street. At approximately 1:15 a.m. on June 7, 1996, Sergeant Matthews telephoned Troopers Connors and Donnelly and told them that the vehicle was going to be towed. Mistakenly believing that the tow was en route, the troopers conducted an inventory search of the vehicle following written inventory procedures, also marked as an exhibit. Trooper Donnelly completed a Vehicle Inventory Form indicating that the reason for the search was Street’s arrest. At the time of the search, the vehicle was parked on a public way and was unlocked. As a result of the search, Trooper Connors found a Mirak Chevrolet Mobil Credit Card in the trunk. The troopers also took photographs of the Toyota’s tires. This search was not done as a pretext for concealing an investigatory search.
When Troopers Donnelly and Connors conducted the search of the vehicle, the search warrants were still being drafted. The search warrants were not issued until approximately 4:00 a.m. that morning. At that point, the tow truck was requested and the vehicle was then towed to the State Police barracks at approximately 4:45 a.m. The processing of the Toyota pursuant to the search warrant occurred on Monday, June 10, 1996. On June 10, 1996, soil samples were taken from the Toyota. The warrant for the defendant’s apartment was executed in the morning of June 7, 1996.
DISCUSSION
The defendant challenges the searches of his apartment and the Toyota Corolla. The defendant specifically seeks to suppress the credit card, the soil samples, and the photographs of the car. First, the defendant argues that the affidavits in support of the applications for the search warrants lacked probable cause. Second, the defendant argues that with respect to the actual search of the Toyota, the officers lacked probable cause, exigent circumstances and a warrant and therefore the search was unlawful. The Commonwealth maintains that the affidavits contained sufficient information to support a determination of probable cause to believe that evidence of the commission of the crimes at Mystic Lake would be found in the defendant’s apartment and the Toyota Corolla. In addition, the Commonwealth argues that regardless of any technical deficiencies in an inventory search, the search was lawful because the officers had probable cause to believe evidence of the crime would be found in the vehicle and exigent circumstances existed to justify the warrantless search. Finally, the Commonwealth argues that the discovery of the credit card was inevitable and it should therefore not be suppressed.
RULINGS OF LAW
Sufficiency of the Affidavits in Support of the Search Warrants
In the present case, the information presented in the affidavit in support of the applications for the search warrants established probable cause to search the third floor apartment at 585 Main Street and the Toyota Corolla.[1] An affidavit is sufficient if it contains enough information to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched. Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983).
In this case, the affidavits established probable cause to believe that Street had been involved in the crimes committed at Mystic Lake and that evidence of that crime, in the form of soil samples or other personalty taken from the victims would be located in the apartment and in the vehicle. Defendant argues that because the affidavit references a Confidential Informant who does not satisfy the Aguilar-Spinnelli standard, the affidavit lacks probable cause. Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. U.S., 393 U.S. 410 (1969); Commonwealth v. Warren, 418 Mass. 86, 88-89 (1994); Commonwealth v. Upton, 394 Mass. 363, 374 (1985). However, the affidavit references the Confidential Information as a means of describing how the Trooper was led to Jefferson Silva. The affidavit does not rely on the information provided by the Confidential Informant. The information obtained from Silva is sufficient to establish probable cause to believe that evidence of the crime would be located at Street’s apartment and in the Toyota wholly apart from the original tip from the Confidential Informant.
Defendant also argues that Silva does not satisfy the Aguilar-Spinelli standard because he lacks credibility. Under the Aguilar-Spinelli standard, the affidavit must set forth facts of (1) some of the underlying circumstances from which the informant concluded that the items were where he claimed they were (the basis of knowledge test); and, (2) some of the underlying circumstances from which the affiant concluded that the information was credible or reliable (the veracity test).[2]
Upton, 394 Mass. at 375.
The credibility of a named and identified informant or a witness to a crime is judged by a less stringent standard than a confidential informant. Commonwealth v. Burt, 393 Mass. 703, 710
(1985). In addition, the standard for participants in crimes who provide information to the police is lesser than the more stringent standard for confidential informants. Commonwealth v. Norris, 6 Mass. App. Ct. 761, 765 (1978). Moreover, named informants whose relationship to the case is explained in the affidavit are presumptively reliable. Commonwealth v. Atchue, 393 Mass. 343, 347-348 (1984).
There is nothing in the affidavit to negate the presumption of Silva’s reliability. Defendant argues that Silva’s statements against penal interest are self-serving because he minimizes his own role in the crimes and therefore the statements cannot be used to show his credibility. To the contrary, Silva’s statements inculpating himself in the crime qualify as statements against penal interest. Sergeant Matthews had just observed some of the stolen property in Silva’s room. Silva was in fear of prosecution when he made the statements to Sergeant Matthews. Therefore his statements qualify as statements against penal interest and further buttress the presumption of his reliability. Commonwealth v. Alvarez, 422 Mass. 198, 204-205 (1996).
The affidavits filed in support of both search warrants contained sufficient evidence to support a finding of probable cause and the defendant’s motion to suppress evidence seized from his apartment and the Toyota on this basis is denied.
Search of the Vehicle
The defendant argues that even if this court finds that the affidavit in support of the search warrant for the Toyota is valid, the actions of Trooper Donnelly and Trooper Connors in conducting an inventory search several hours after the arrest of Street but before the issuance of the warrant was unlawful and therefore, the credit card seized as a result of that search must be suppressed. Warrantless searches are per se unreasonable unless they fall within one of the narrowly-drawn exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357
(1967); Commonwealth v. Forde, 367 Mass. 798, 800 (1975). When a warrantless search is conducted, the Commonwealth has the burden of showing that the search, and any resulting seizure, falls within the narrow class of permissive exceptions. Commonwealth v. Sumerlin, 393 Mass. 127, 128-129 n. 1 (1984), cert. denied, 469 U.S. 1193 (1985).
Inventory Search Exception
An inventory search is an exception to the warrant requirement and is justified on the theory that it protects the arrestee’s possessions, guards against false claims against the police, and prevents the introduction of weapons into the police station. Illinois v. Lafayette, 462 U.S. 640, 646 (1983); Commonwealth v. Caceres, 413 Mass. 749, 754 (1992). To be a lawful inventory search, the vehicle must be (1) lawfully in police custody; (2) the search must be conducted pursuant to a standard, written policy; (3) the search must not be a pretext concealing an investigative motive; and (4) the search must be reasonable under the circumstances. Commonwealth v. Bishop, 402 Mass. 449, 451
(1988); Commonwealth v. Wilson, 389 Mass. 115, 116-117 (1983).
Troopers Connors and Donnelly conducted the search pursuant to the state police’s written policy for inventory searches on the mistaken belief that the car was about to be towed by the police. The search was not pretextual. However, the car was not yet lawfully in police custody when the search that turned up the credit card was conducted.[3]
The Commonwealth argues that the troopers conducted a lawful inventory search pursuant to written state police procedures and that any technical violation as to when the car was lawfully seized is not dispositive of the lawfulness of the search. The Commonwealth further argues that the troopers were entitled to take custody of the vehicle because they had probable cause to believe that evidence of the crime would be found in the vehicle and exigent circumstances existed to justify a warrantless search.[4] The Commonwealth argues that the fact that the defendant’s girlfriend could have driven the car away from its location on Main Street provided the troopers with the necessary exigent circumstances to justify the warrantless search. Commonwealth v. White, 422 Mass. 487, 498 (1996); Commonwealth v. Avery, 365 Mass. 59, 64 (1974). According to this argument, Sergeant Matthews’ cautiousness in applying for a search warrant for the vehicle does not negate the independent basis upon which the troopers conducted the inventory search. Had Ms. Goncalves attempted to remove items from the vehicle or move the vehicle itself, the troopers may have been presented with exigent circumstances to excuse the warrant requirement. However, under the facts of this case, the mere possibility that someone might destroy or conceal evidence does not provide exigent circumstances to justify a warrantless search. Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 395 (1993).
In the alternative, the Commonwealth argues that neither the defendant nor his girlfriend had a reasonable expectation of privacy in the vehicle because it was parked on a public way with its doors unlocked. Therefore, the Commonwealth argues, the troopers were free to inspect the vehicle regardless of whether exigent circumstances existed. This court does not accept the Commonwealth’s assertion that an individual loses all expectation of privacy in a vehicle in these circumstances. Therefore, the search conducted by Troopers Donnelly and Connors cannot be justified as a valid inventory search.
Inevitable Discovery Exception
The Commonwealth argues that notwithstanding any technical violation in the search of the Toyota the credit card seized should not be suppressed because it would have inevitably been discovered later that morning when Sergeant Matthews arrived with the search warrant.[5] Commonwealth v. O’Connor, 406 Mass. 112, 117-118 (1989). Application of the inevitable discovery doctrine requires a two-step analysis which focuses, first, on the question of inevitability, and, second, on the character of the police misconduct. Commonwealth v. Perrot, 407 Mass. 539, 546
(1990).
The Commonwealth must show by a preponderance of evidence that the evidence illegally seized would inevitably have been discovered by lawful means. O’Connor, 406 Mass. at 116. Once the relevant facts have been proved, the Commonwealth must also show that discovery by lawful means was “certain as a practical matter.” Id. at 117. In this case, the Commonwealth has satisfied its burden of proof that the credit card would inevitably have been discovered through lawful means. Had Troopers Donnelly and Connors not conducted the inventory search at 1:45 a.m., the search would have been conducted at 4:45 a.m. when Sergeant Matthews executed the search warrant. The only plausible interference with this chain of events would have been an effort by the car’s owner at moving the vehicle. If Ms. Goncalves had tried to move the vehicle, the troopers would have been faced with sufficiently exigent circumstances to prevent her from doing so. Therefore, the inevitable discovery of the credit card through lawful means was certain as a practical matter.
As to the second requirement, the decision turns on the degree to which the violation undermined the principles underlying the governing rule of law, and the extent to which exclusion would deter such violations from being repeated. Commonwealth v. Gomes, 408 Mass. 43, 46 (1990). The inevitable discovery doctrine should not be applied in the face of evidence that officers acted “in bad faith to accelerate discovery of evidence in question.” Gomes, 408 Mass. at 47 quoting O’Connor, 406 Mass. at 118 n. 5.
In this case, the officers did not proceed with a search for which they could have obtained a search warrant and chose not to do so. See O’Connor, 406 Mass. at 118. In fact, the necessary warrant was imminent. The troopers acted in good faith and made an error based on the limited information supplied to them from their supervisor. There is no evidence of bad faith that would prevent this court from applying the inevitable discovery doctrine. The premature action of the troopers was “a matter of procedure that infringed no substantive right of the defendant.” Commonwealth v. Grimshaw, 413 Mass. 73, 77 (1992) (evidence not suppressed where search warrant lawfully obtained and, except as to time, no misconduct in its execution).
For the aforementioned reasons, the defendant’s motion to suppress the credit card seized from the vehicle is denied. The photographs taken by the state police violated no rights of the defendant, and the motion to suppress that evidence is denied. The soil samples were retrieved pursuant to a valid search warrant, and the motion to suppress that evidence is also denied.
ORDER
For the above stated reasons, it is hereby ORDERED that the defendant’s motion to suppress evidence is DENIED.
________________________________ Raymond J. Brassard Justice of the Superior Court
Dated: February 28, 1997