Com. v. Mejia, 03-P-1178.

• Decision Date: 11 August 2005
• Docket Number: No. 03-P-1178.,03-P-1178.
• Parties: COMMONWEALTH v. Alex MEJIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

832 N.E.2d 693

64 Mass. App. Ct. 238

COMMONWEALTH v. Alex MEJIA.

No. 03-P-1178.

Appeals Court of Massachusetts, Suffolk.

Argued November 9, 2004.

Decided August 11, 2005.

Robert D. Dimler, Plymouth, for the defendant.

Dean A. Mazzone, Assistant District Attorney, for the Commonwealth.

Present: PERRETTA, GRASSO, & MILLS, JJ.

PERRETTA, J.

Convicted of unlawful possession of a firearm, the defendant complains on appeal about the denials of his motions to suppress (1) evidence obtained by electronic surveillance, (2) the firearm, and (3) his statements to the police. He also complains about the sufficiency of the evidence. He claims that the use of a "trap and trace" device without a warrant violated G.L. c. 272, § 99, that the firearm was seized in the course of a warrantless search that exceeded the scope of a permissible protective sweep, and that he was intoxicated and not fully informed at the time of his waiver of his Miranda rights and statements to the police. We affirm the judgment.¹

1. The evidence. Based on the evidence introduced at the suppression hearing, the judge found the following facts, which we supplement to a minimal extent with undisputed background from the transcripts of the evidentiary hearing. See Commonwealth v. Sweezey, 50 Mass.App.Ct. 48, 49, 735 N.E.2d 385 (2000). On the night of April 22, 1999, at about 10:30 P.M., Huber Gonzalez was kidnapped outside his house in Revere. John Benitez, a family friend, soon began receiving voice-mail messages on his pager. These messages, shown to have been made by the kidnappers, advised that Gonzalez had been kidnapped and "would not be seen alive again" unless the Gonzalez family came forward with $20,000. After their initial reaction to the messages, Benitez and members of the Gonzalez family attempted to determine the authenticity of the threat and went to the Revere police station. There they spoke with Detective Sergeant Carl Borgioli who, in turn, contacted the Federal Bureau of Investigation (FBI).

As a result of Borgioli's call, FBI agents were assigned to the investigation and proceeded to the Revere police station where, along with local law enforcement officials, they spoke with Benitez. Benitez explained to the Federal and State law enforcement officials, hereafter collectively referred to as the police, that he was the person who had been contacted by the kidnappers through the use of his pager and Gonzalez's cellular telephone, which was in his possession.

At that time, now April 23, 1999, Benitez signed a consent form authorizing the police to record any conversations to which he was a party. The investigatory methodology was established: when Benitez would receive a voice-mail on his pager, the police would call the voice-mail system from a telephone at the Revere police station and record the voice-mail messages left by the kidnappers. That same day, April 23, 1999, at about 1:00 P.M., FBI agents obtained an order from a Federal judge authorizing Cellular One, the service provider for Gonzalez's cellular telephone in Benitez's possession, either to install a mechanical "trap and trace" device² on Gonzalez's cellular telephone, which the kidnappers were calling, or to activate the "call identification" ("caller ID") function of the cellular telephone. Either option provided by the order allowed Cellular One to ascertain the telephone number from which a call was being placed to Gonzalez's cellular telephone.

In the early evening hours of that same day, April 23, Benitez received a voice-mail message on his pager instructing him to go to the Copley Square area of Boston with both the demanded money and Gonzalez's cellular telephone. Benitez drove to the designated area with an FBI agent hiding in the back seat of his car and other police officers following closely behind. After several unsuccessful attempts by the kidnappers to coordinate a location at which Benitez could drop off the money, they called Gonzalez's cellular telephone. Benitez answered the call and demanded to speak with Gonzalez so that he could verify that he was still alive. Gonzalez was allowed to speak briefly with Benitez. While speaking with Gonzalez, Benitez was able to surreptitiously alert the police officers of his speaking with Gonzalez. The police immediately contacted Cellular One.

Exercising the option provided by the Federal judge's order, Cellular One elected to activate the "caller ID" function in order to ascertain the number from which the kidnappers' call had originated. With that information and the use of an FBI database, the police ascertained the address from which the call by the kidnappers to Benitez had been made: 62 Clare Avenue in the Roslindale section of Boston.

Converging at 62 Clare Avenue, the police identified themselves to the landlady, who allowed them into the back hallway just outside the door to the first-floor apartment. Upon entering the hallway the police heard glass shatter and saw several individuals running from the premises. Some of the police officers gave chase and were able to apprehend one individual, Dennis James.³ Meanwhile, other officers received a Boston police radio transmission that shots had been fired. The officers responded by forcing their way into the apartment with their weapons drawn. Special Agent Travaglia found Gonzalez in one of the bedrooms. He was covered with tape and had a hood over his head and a ski mask rolled halfway up his face. Meanwhile, Special Agent Cacace was conducting a sweep of the apartment to determine whether any of the kidnappers had remained in the apartment. He went into one bedroom and flipped a mattress off the bed and discovered a loaded nine millimeter handgun.

To meet its burden of proof at trial on the indictment charging the defendant with unlawful possession of a firearm, the Commonwealth presented evidence that essentially tracked the evidence presented at the evidentiary hearing on the motions to suppress. In addition to that evidence, the Commonwealth also presented proof of the following facts.

On the night of his abduction, Gonzalez was standing in his driveway when a man approached him, put a handgun to his head, and pushed him into a van or pickup truck. His head was then covered, and he was ordered to contact his family and inform them of a ransom demand. In complying with this demand, Gonzalez provided the kidnappers with Benitez's pager number. On the night of his rescue and James's arrest, Gonzalez identified the vehicle parked in James's driveway as being the one in which he had been abducted.

Acting on information provided by James after his arrest, the police apprehended the defendant. Although the defendant agreed to speak with the police, he denied any involvement in Gonzalez's kidnapping. However, he did state that he was present at 62 Clare Avenue on April 23, that a number of other people were also present, including a man named Carmello, and that he saw a man bound and lying on the floor of the bathroom. The defendant also told the police that Carmello had a silver or chrome-plated handgun, which he (the defendant) had held, and that the police would find his fingerprints on the recovered gun.⁴

2. The motions to suppress. As noted at the outset, the defendant claims error in the denials of his three motions to suppress. We take them up in the order that the challenged evidence was obtained.

a. The evidence obtained by electronic surveillance. The surveillance in question consisted of two types: (1) the tape recordings made of messages left by the kidnappers on John Benitez's pager's voice-mail system; and (2) the information obtained by Cellular One identifying the telephone number from which calls were being placed to Benitez on Gonzalez's cellular telephone. The defendant did not own or possess any of the telephones or the pager system involved in the electronic surveillance.

(i) The taped messages. Even were we to assume that the defendant had an expectation of privacy in these recorded conversations, see Commonwealth v. Eason, 427 Mass. 595, 599-601, 694 N.E.2d 1264 (1998), we would not conclude that any error in the denial of his motion on this score would require reversal of his conviction. The content of the recorded messages left on Benitez's pager (that Gonzalez had been kidnapped and that the kidnappers were demanding money for his safe return) could not have prejudiced the defendant on the sole charge of which he was convicted, that is, unlawful possession of a firearm. The police learned of Gonzalez's kidnapping from his family and Benitez rather than from any recorded messages, the defendant was not a party to any of the recorded messages,⁵ and he was acquitted of the charges relating to the kidnapping. See note 1, supra.

(ii) Activation of the "caller ID" function. As previously related, Cellular One was given authorization either to install a mechanical "trap and trace" device (see note 2, supra) or to activate the "caller ID" function on Gonzalez's cellular telephone. It was Cellular One's election to activate the "caller ID" function that led the police to 62 Clare Avenue, the discovery of the firearm, and the arrest of James, who, in turn, implicated the defendant. For purposes of decision, we will assume without deciding that activation of the "caller ID" feature of Gonzalez's cellular telephone is the functional equivalent of a "trap and trace" device requiring scrutiny under G.L. c. 272, § 99, the Massachusetts wiretap statute.

Generally speaking, the use of pen registers, "trap and trace" devices, and other like means for purposes of obtaining information such as telephone numbers dialed and telephone numbers from which calls were received is deemed an "interception" within the comprehension of the wiretap statute. As explained in District Attorney for Plymouth Dist. v. New England Tel. & Tel. Co., 379 Mass. 586, 591-592, 399 N.E.2d 866 (1980),

"An interception is defined . . . to include the secret...