Com. v. Zuluaga

• Decision Date: 10 October 1997
• Docket Number: No. 96-P-1,96-P-1
• Citation: 43 Mass.App.Ct. 629,686 N.E.2d 463
• Parties: COMMONWEALTH v. Luis ZULUAGA (and three companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 463

686 N.E.2d 463

43 Mass.App.Ct. 629

COMMONWEALTH v. Luis ZULUAGA (and three companion cases ¹).

No. 96-P-1.

Appeals Court of Massachusetts Middlesex.

Argued March 14, 1997.

Decided Oct. 10, 1997.

Russell C. Sobelman, Lynn, for Luis Zuluaga.

Wendy Sibbison, Greenfield, for Arlon Osario.

Dana A. Curhan, Boston, for Hugo Restrepo.

Sabita Singh, Assistant District Attorney (William Bloomer, Assistant District Attorney, with her), for the Commonwealth.

Before DREBEN, GILLERMAN and FLANNERY, JJ.

DREBEN, Justice.

Aided by an informant named Kevin Brathwaite, Lowell and Massachusetts State police set up conditions for a "controlled buy" of a kilogram of cocaine. Caught as distributors of drugs were the defendants Luis Zuluaga, Hugo Restrepo, and Arlon Osario. Each was convicted of trafficking in drugs in excess of 200 grams in Lowell. Osario was also convicted of trafficking in drugs in excess of 200 grams in Dracut. In their appeals from these convictions, the defendants challenge the denial of their suppression motions and assert numerous other errors. We affirm the convictions except that of Osario for trafficking in Lowell. As to that conviction, Osario is entitled to a new trial.

MOTIONS TO SUPPRESS.

1. Facts. In his findings on the motions to suppress, the motion judge explained how the police plan for a "drug buy" led to the apprehension of the defendants. We turn to those findings which were issued after lengthy hearings. On March 30, 1993, Kevin Brathwaite informed Trooper John R. Sprague of the Massachusetts State Police that, while serving a sentence at M.C.I., Gardner, he learned that "Luis," the owner of a travel agency in Lowell, was a substantial cocaine distributor. Brathwaite believed he could effect a large drug purchase from Luis. Following Sprague's instructions, Brathwaite arranged to purchase a kilogram of cocaine for $28,000 from Luis Zuluaga ² on April 3, 1993 between 10 A.M. and noon.

Sprague sought and obtained a search warrant to "intercept, monitor and record the conversations" between Brathwaite and Zuluaga and his "presently unidentified associates." At some time between March 30 and April 3, Sprague agreed to pay Brathwaite $1,000, if the investigation proved successful and led to arrests and the seizure of cocaine. ³ On the morning of April 3, Brathwaite was outfitted with a hidden device which allowed the police to receive and record his communications. Officers were situated in motor vehicles and on foot for surveillance of the travel agency and its surrounding areas. The police also set up a video camera in a van across the street from the agency.

Brathwaite arrived at the agency about 11:40 A.M. Zuluaga told him to return in an hour, saying his man had the cocaine at his house and would arrive shortly. Thereafter, Restrepo arrived at the agency, spoke briefly with Zuluaga, walked to his car, and, followed surreptitiously by police, drove to the J & P Appliance store at 369 Bridge Street in Lowell where he met Osario. The latter left the store, entered a grey pickup truck and drove off in the direction of Dracut. Restrepo drove back to where his car had previously been parked.

Brathwaite returned to the agency at 1 P.M. and again at 1:30 P.M. but was told by Zuluaga on each occasion that the drugs had not yet arrived. He so informed Sprague. Shortly after 1:30 P.M., Restrepo returned to the agency, met briefly with Zuluaga, and walked to a street where he was picked up by Osario's grey truck. After travelling a short distance, Restrepo disembarked and stepped into a doorway, opened his jacket and placed a light-colored package underneath it. He then walked back to the area of the travel agency where he met Zuluaga on the sidewalk, and the two men entered a doorway between the agency and a "Subway Shop." A few minutes later, Zuluaga returned to the agency, and Restrepo walked away.

Brathwaite once again came back to the travel agency, met Zuluaga and Restrepo, who had returned, and, after Brathwaite took cash from an unmarked police vehicle, the three men entered the doorway between the travel agency and the "Subway Shop." A few minutes later, Brathwaite and Zuluaga came out of the doorway, whereupon Brathwaite gave a signal with his cap indicating that the cocaine had arrived.

The police moved in and arrested Zuluaga. Simultaneously, other officers entered the doorway, descended, and arrested Restrepo at the foot of the stairway. They observed a small storage room to the left of Restrepo, with its door partially opened. After Restrepo's arrest, Brathwaite came down the steps and told the officers that Restrepo and Zuluaga had gone into the storage room. After a brief search of that room, the officers found a package containing approximately one kilogram of white powder in a desk drawer. Upon analysis it was determined to be cocaine, as was the contents of a small package found beside Restrepo when he was arrested. ⁴

After the arrest of Zuluaga and Restrepo, officers went to the J & P Appliance store to arrest Osario, the operator of the grey pickup truck. Seeing the truck drive by, Trooper Thomas Greeley followed it to Dracut, where it stopped at 83 Montaup Avenue. Osario attempted to enter the front door but was arrested. Officers secured the house and waited while Greeley applied for and obtained a search warrant. During their wait for the warrant, officers saw a man knock at the front door. Upon questioning, he told the police he was carrying $3,500 which he owed to Osario.

After his arrest and prior to the search of his residence, Osario was given his Miranda rights and agreed to answer questions put to him by two Lowell police officers. He told them that he lived at 83 Montaup Avenue in Dracut, that he had lived there by himself for three years, and that he had gone home after talking to Restrepo at the J & P Appliance store.

On executing the warrant at Osario's residence, the police found approximately 2,300 grams of cocaine, a scale, 5.3 grams of marihuana, ⁵ $18,300 in cash, records, and drug-related paraphernalia.

2. Compliance with G.L. c. 272, § 99. Both at the hearing before the motion judge, and on appeal, the defendants claimed that the conditions of § 99 were not satisfied because the warrant for the wiring of Brathwaite did not set forth any facts to prove the statutory requirement that "normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried," see § 99 E 3, ⁶ and because the Commonwealth did not show the investigation was connected to organized crime.

The judge correctly rejected these arguments. The Commonwealth came within the exception of § 99 B 4 for conversations intercepted by law enforcement officers with the consent of one of the participants when investigating a designated offense "in connection with organized crime as defined in the preamble." ⁷ G.L. c. 272, § 99 B 7. See Commonwealth v. Thorpe, 384 Mass. 271, 275-276, 424 N.E.2d 250 (1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982). If the exception applies, the procedures and requirements of G.L. c. 272 § 99, need not be met. Commonwealth v. Penta, 423 Mass. 546, 551-552, 669 N.E.2d 767 (1996).

Contrary to the defendants' contention, the judge was warranted in finding a nexus to organized crime. The Commonwealth is not "required to demonstrate probable cause of the existence of organized crime," Commonwealth v. Thorpe, 384 Mass. at 279, 424 N.E.2d 250, but rather is "required to show that the decision to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offense in connection with organized crime" (emphasis supplied). Id. at 281, 424 N.E.2d 250.

Sprague's affidavit in support of the warrant stated, inter alia, that Brathwaite had met and spoken with Zuluaga and that the latter had agreed to sell him a large quantity of cocaine, that someone else would bring the cocaine, that the cocaine "is the best thing in town" and that he, Zuluaga, "had not been getting any complaints." As an investigative officer involved in "hundreds of narcotic investigations," Sprague also stated, "it is my experience that persons involved in the distribution of kilogram and multi-kilogram quantities of cocaine necessarily conduct their activities in concert with others." Similar inferences as to organized crime are noted in our cases. See, e.g., Commonwealth v. Thorpe, 384 Mass. at 281, 424 N.E.2d 250 (nature of the crime involved may lend itself to the inference of "discipline and organization"); Commonwealth v. Lykus, 406 Mass. 135, 142, 546 N.E.2d 159 (1989). ⁸ See also Commonwealth v. Price, 408 Mass. 668, 671 n. 2, 562 N.E.2d 1355 (1990); Commonwealth v. Penta, 32 Mass.App.Ct. 36, 43, 586 N.E.2d 996 (1992); S.C., 423 Mass. 546, 669 N.E.2d 767 (1996); Commonwealth v. Eason, 43 Mass.App.Ct. 114, 119-120, 681 N.E.2d 863, S.C., 425 Mass. 1108 (1997), ⁹ cases indicating that the nexus with organized crime is met when a major drug sale is the subject of the investigation. The Commonwealth met its burden of showing a reasonable suspicion that interception would lead to evidence of a designated offense in connection with organized crime.

3. Validity of warrant for wiring of Brathwaite. The defendants contend that the motion judge erred in ruling that the warrant, issued under the common law authority of Commonwealth v. Blood, 400 Mass. 61, 507 N.E.2d 1029 (1987), see Commonwealth v. Penta, 423 Mass. at 552-553, 669 N.E.2d 767, ¹⁰ was supported by probable cause. Sprague's affidavit in furtherance of the warrant meets both the basis of knowledge and the veracity prongs required by Commonwealth v. Upton, 394 Mass. 363, 374, 476 N.E.2d 548 (1985), as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

As to Brathwaite's...