Com. v. Santiago

• Decision Date: 29 April 1991
• Docket Number: No. 89-P-1153,89-P-1153
• Citation: 30 Mass.App.Ct. 207,567 N.E.2d 943
• Parties: COMMONWEALTH v. Enrique SANTIAGO (and three companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 943

567 N.E.2d 943

30 Mass.App.Ct. 207

COMMONWEALTH v. Enrique SANTIAGO (and three companion cases ¹).

No. 89-P-1153.

Appeals Court of Massachusetts Middlesex.

Argued Dec. 17, 1990.

Decided March 8, 1991.

Further Appellate Review Denied

April 29, 1991.

Dana A. Curhan, New Bedford, for Carlos J. Bernier.

Brownlow M. Speer, Committee for Public Counsel Services, Boston, for Evelyn Munoz.

Thomas F. Sullivan, Melrose, for Enrique Santiago.

David R. Marks, Asst. Dist. Atty., for the Com.

Before ARMSTRONG, FINE and LAURENCE, JJ.

FINE, Justice.

Carlos Bernier, Evelyn Munoz, and Enrique Santiago were convicted of trafficking in cocaine, and Bernier was convicted also of possession of heroin, after a jury trial in Superior Court. The police found the cocaine and heroin after stopping a car in Malden which Santiago was driving and in which the other two defendants were passengers. The defendants' appeals are multifaceted. We discuss the facts in relation to each of the claims on appeal.

1. Pretrial Issues.

a. Santiago's motion to suppress the cocaine. Santiago's motion to suppress was heard by the same judge who presided over the trial. We summarize his findings, all of which are supported by evidence. On January 30, 1988, State Trooper Kevin O'Neill was directed to a Malden motel, with instructions to observe a particular room and await the arrival of another State trooper, David Sawyer. Trooper O'Neill knew only that the investigation had some connection with drugs.

The two officers arrived at the motel at about the same time. Trooper O'Neill observed Santiago leave the room carrying a bag, which turned out to contain garbage. When Santiago and Trooper O'Neill made eye contact, Santiago appeared startled and returned to his room. Someone in the room looked out the window. Then, within moments, Santiago, Bernier, and Munoz left the room. Santiago placed something in the trunk of a vehicle which all three entered, Santiago in the driver's seat and the other two in the front passenger seats. They drove off at a high rate of speed. The driving was erratic. Trooper O'Neill began to follow them in his marked cruiser. After a short while, he activated the light and siren. He saw the passengers looking in his direction, their heads bobbing up and down. Trooper O'Neill sought to stop the car for traffic violations. After some delay Santiago abruptly pulled his car to the side of the road. Both front doors swung open, and Santiago and Bernier jumped out. Trooper O'Neill ordered both men to "freeze." Santiago raised his hands in the air; Bernier ducked down behind the car. Trooper O'Neill approached Bernier, and Trooper Sawyer, who had arrived at the scene just after Trooper O'Neill, took the keys from the ignition and approached Santiago. Trooper O'Neill, fearful for his safety, pat-frisked Bernier and felt a bulge in his "top left pocket" where he found a cigarette lighter, rolling papers, and heroin. He placed Bernier under arrest and advised him of his Miranda rights.

Santiago had no proof of ownership of the car, and various efforts to check his claim of ownership led the officers to believe that it might belong to someone else. The decision was made, therefore, to have the car towed to the police station. Trooper O'Neill asked Bernier if he had any personal belongings he wanted from the car. Bernier said he had a guitar in the trunk and wished to take it with him. When told by the trooper that Bernier wanted his guitar from the trunk, Santiago handed over his car keys. Trooper O'Neill opened the trunk and saw, in addition to the guitar, a gym bag and, protruding from the gym bag, a large rectangular-shaped package wrapped in masking tape. Based upon his training and experience, he believed the package contained drugs. Santiago and Munoz were then also placed under arrest.

The judge ruled, first, that the trooper had reason to stop the car for traffic violations. See Commonwealth v. Figueroa, 18 Mass.App.Ct. 967, 469 N.E.2d 1294 (1984). At that time the trooper lacked probable cause for arrest for any drug offense, and the traffic violations did not justify an arrest. Thus, if the intrusion amounted to an arrest, it would have been invalid. There was no evidence presented at the motion hearing, however, that Trooper O'Neill had his gun drawn when he approached and ordered Santiago and Bernier to "freeze" or that Santiago's car was blocked. We agree with the judge that the officers' actions were reasonable in the circumstances and are to be judged on the assumption that there was a stop, not an arrest. See Commonwealth v. Moses, 408 Mass. 136, 141, 557 N.E.2d 14 (1990); Commonwealth v. Fitzgibbons, 23 Mass.App.Ct. 301, 502 N.E.2d 142 (1986). Contrast Commonwealth v. Bottari, 395 Mass. 777, 482 N.E.2d 321 (1985). We also agree with the judge's conclusion that the actions of Santiago and Bernier, both jumping abruptly from the car and Bernier ducking, justified the limited search for weapons on Bernier's person. See Commonwealth v. Sumerlin, 393 Mass. 127, 131, 469 N.E.2d 826 (1984). Contrast Commonwealth v. Figueroa, 18 Mass.App.Ct. at 968, 469 N.E.2d 1294. The trunk was opened, the judge concluded, with Santiago's consent, based, not upon any ruse, but upon Bernier's interest in retrieving his guitar and Santiago's handing over the car keys.

Relying on Commonwealth v. Ford, 394 Mass. 421, 426, 476 N.E.2d 560 (1985), Santiago contends that his State constitutional rights were violated when Trooper O'Neill opened the trunk to retrieve Bernier's guitar because there were no standard police procedures covering such actions. See also Commonwealth v. Bishop, 402 Mass. 449, 523 N.E.2d 779 (1988). In light of the finding of consent, we need not decide whether a police officer may honor a request of a passenger for personal belongings in a closed trunk of an automobile belonging to another, absent standard police procedures on the subject. Nor is it necessary for us to decide what significance to give to the fact that the package would inevitably have been discovered in the course of an inventory search conducted in accordance with a standard written State police motor vehicle inventory policy applicable to the contents of any towed car. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Commonwealth v. O'Connor, 406 Mass. 112, 546 N.E.2d 336 (1989). The contraband, being in plain view, was properly seized. Contrast Commonwealth v. Silva, 366 Mass. 402, 409-410, 318 N.E.2d 895 (1974). ²

b. Motions to suppress filed by Bernier and Munoz. Santiago's motion to suppress, accompanied by his affidavit, was filed and heard on July 14, 1988. On May 13, 1988, a motion to suppress drugs seized in the same incident had been filed on Munoz's behalf. Munoz's motion was accompanied by an affidavit signed by her attorney. On June 9, 1988, Bernier had filed a motion to suppress the same evidence, based upon the same police actions, also accompanied by an affidavit signed by his attorney. On July 14, 1988, all three defendants appeared for a hearing on the motions to suppress. On that date Munoz presented her own affidavit in which she swore to the truth of the contents of her attorney's affidavit, and Bernier also offered to produce his own affidavit. The judge denied the motions to suppress filed by Bernier and Munoz without a hearing on the merits. He appears to have based his action on their lack of standing to raise the issues as mere passengers in the car and on technical deficiencies, untimeliness, and the failure to produce affidavits with sufficient particulars based upon personal knowledge of the affiants. See Mass.R.Crim.P. 13(a)(2), 378 Mass. 871 (1979). He then proceeded to hear and decide Santiago's motion to suppress.

"When a defendant is charged with a crime in which possession of the seized evidence at the time of the contested search is an essential element of guilt, the defendant shall be deemed to have standing to contest the legality of the search and the seizure of that evidence." Commonwealth v. Amendola, 406 Mass. 592, 601, 550 N.E.2d 121 (1990). Both Munoz and Bernier, therefore, had standing. Their affidavits, however, did not meet the strict requirements of the rule. Ordinarily, a judge is not obligated to consider a motion not satisfying the requirements of an applicable rule. See Commonwealth v. Bongarzone, 390 Mass. 326, 337, 455 N.E.2d 1183 (1983); Commonwealth v. Pope, 15 Mass.App.Ct. 505, 507, 446 N.E.2d 741 (1983). In some circumstances, however, insistence on strict requirements to deprive a defendant of a fair hearing of a motion raising a constitutional claim may be an abuse of discretion. See Mass.R.Crim.P. 2(a), 378 Mass. 844 (1979); Commonwealth v. Santosuosso, 23 Mass.App.Ct. 310, 501 N.E.2d 1186 (1986). Cf. Commonwealth v. Benjamin, 358 Mass. 672, 676 n. 5, 266 N.E.2d 662 (1971).

In this case, notwithstanding any insufficiencies in the affidavits, the purposes of the affidavit requirement of Mass.R.Crim.P. 13 were satisfied. Those purposes, which we continue to regard as important, are "(1) to give the judge considering the motion a statement of anticipated evidence, in reliable form, to meet the defendant's initial burden of establishing the facts necessary to support his motion, and (2) to provide the Commonwealth with fair notice of the specific facts relied on in support of the motion set forth in a form, i.e., under oath, which is not readily subject to change by the affiant." Commonwealth v. Santosuosso, 23 Mass.App.Ct. at 313, 501 N.E.2d 1186 (citation omitted). The affidavits filed by Bernier and Munoz were sufficient to indicate to the judge and prosecutor that both claimed constitutional violations in the warrantless search of the car Santiago was driving and in which they were passengers when it was stopped by Trooper O'Neill. Facts relating to the stop were contained in Santiago's affidavit, which the judge apparently regarded as...