Commonwealth v. Charros

• Decision Date: 06 January 2005
• Citation: 443 Mass. 752,824 NE 2d 809
• Parties: COMMONWEALTH v. MICHAEL CHARROS (and three companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

443 Mass. 752

824 NE 2d 809

COMMONWEALTH v. MICHAEL CHARROS (and three companion cases¹).

Supreme Judicial Court of Massachusetts, Bristol.

January 6, 2005.

March 31, 2005.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Dana Alan Curhan (Brad Bennion with him) for Michael Charros.

Cynthia A. Vincent for Geraldine Charros.

Steven Gagne, Assistant District Attorney (Alison R. Bancroft, Assistant District Attorney, with him) for the Commonwealth.

Richard L. Goldman, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

SPINA, J.

Michael Charros was convicted of trafficking in cocaine in excess of 200 grams, and trafficking within 1,000 feet of a school zone. Geraldine Charros, his wife, was convicted of a lesser included offense of trafficking in cocaine in an amount of twenty-eight grams or more but less than one hundred grams, based on a theory of joint venture. She also was convicted of a corresponding school zone violation. On appeal, the defendants argue that the search warrant for their home did not authorize officers of the New Bedford police department to stop them after they left their home and traveled approximately one mile, and that items seized as a result of their illegal arrest and statements made by Michael should have been suppressed in accordance with the requirements of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.² The defendants raise other issues in these consolidated appeals, including the refusal to order discovery and the exclusion of evidence concerning the identity of an alleged government informant; claims of ineffective assistance of counsel; and a contention that Geraldine's motion for a required finding of not guilty should have been allowed. We hold that the search warrant did not authorize the stop of the defendants, but that police had an independent basis for arresting Michael. We affirm Michael's convictions, but we reverse Geraldine's convictions and remand her case to the Superior Court for a new trial.

1. Background. The jury could have found the following facts. On August 10, 1998, officers of the New Bedford police department obtained a search warrant for the first-floor apartment at 164 Query Street in New Bedford, the residence of Michael and Geraldine Charros.³

After obtaining the search warrant, numerous officers in several cars positioned themselves at various locations around 164 Query Street. At approximately 5:45 P.M. a man other than Michael left the house and drove away. Shortly thereafter Michael was seen driving away in a white van. Some officers stopped the van approximately one mile away. Michael was ordered to step outside, and a patfrisk resulted in the discovery of two small paper folds containing cocaine. One fold was randomly selected for analysis and weighed 0.47 grams. It had a street value of $20 to $25. Michael was handcuffed, placed in a patrol car, and driven back to his home.

Geraldine and the couple's eight year old son were also in the van. An officer drove them in the van back to their home. Once inside their apartment both defendants were advised of the Miranda warnings and allowed to examine the search warrants. Geraldine was permitted to arrange for a relative to remove their son from the premises. She was placed in handcuffs.

Detective Paul Oliveira asked Michael if he were willing to cooperate and show them where he kept the cocaine. He indicated he would, and he led the officers to a small room with a roll-top desk from which were seized a number of items, including a shoe box that contained a plastic bag with 244.68 grams of cocaine, eight small corner bags of cocaine (one was randomly selected for analysis and had a net weight of 0.42 grams), a small corner bag of nonnarcotic white powder, a bottle of Inositol powder, a folded paper packet of cocaine (its net weight was 0.26 grams), several square pieces of paper, $140 in cash, an open box of sandwich bags, a telephone pager, two keys, a triple-beam balance scale, scissors, a butter knife, a Harley Davidson brochure with slash marks on it, and letters and bills addressed to both defendants.

The officers used the keys found in the desk to unlock a strongbox and a safe in a closet off the room where the desk was located. The strongbox contained an envelope with $10,000 cash, a blue bank bag with $8,750 cash, and a white plastic bag containing 28.42 grams of cocaine. The safe contained a .22 caliber handgun and ammunition.⁴

A waste paper basket under the desk contained an empty bottle of Inositol and plastic sandwich bags with corners cut away. Inositol powder is frequently used as a cutting agent to create or stretch a mixture of cocaine for retail sale. Sandwich bags are frequently used in the retail sale of cocaine by placing a small amount of cocaine in a corner, tying a knot in the bag close to the corner holding the drug, then cutting away the unused portion of the bag above the knot, leaving what is known as a "corner bag" of cocaine. Corner bags usually contain a one-half gram mixture of cocaine and sell for $20 to $25 on the street. Based on opinion testimony, the items seized from the desk are not consistent with personal use of cocaine, but are consistent with items used in the sale of cocaine.

From the living room, officers seized a police-band scanner that was "on" and tuned to one of the New Bedford police department frequencies. It was capable of receiving radio communications on the frequency used by the narcotics unit. One purse containing $1,500 cash was seized from the master bedroom. It contained no identification papers. The purse Geraldine had in her possession at the time she was driven back to the apartment also was seized. It contained $821 cash. Michael admitted to Detective Oliveira that he did not use cocaine, but had been selling it for about eight years. He said he was not a big dealer, and just sold a little "here and there" to make some money. He said that the approximately 250 grams that he had in the house would last him about one month. Michael explained that he kept the money in the safe, and not in a bank, because he owed $30,000 in child support. He also explained that the .22 caliber handgun and ammunition had belonged to his father, and that his father recently had passed away.

Both defendants testified. Michael denied telling Detective Oliveira that he had been selling drugs for eight years. He testified that he told Oliveira that Joe Ryan had brought the box of drugs to the house for safekeeping just minutes before Michael had been arrested, and that Ryan had been selling drugs for seven or eight years. Michael testified that he never sold drugs, and that he had purchased from Joe Ryan the two paper folds of cocaine he had on his person when arrested. He also denied telling Oliveira that he owed $30,000 in child support, or that he even mentioned owing child support. There had been papers on the roll-top desk that indicated a claim in excess of $30,000 had been made against him for child support, but Geraldine testified that they had retained a lawyer and the claim was reduced significantly.

Geraldine testified that Michael's father had lived with them from January, 1997, until his death in March, 1998. He suffered many medical complications related to diabetes. A leg had been amputated, he was confined to a wheelchair, and he required dialysis. Michael was his father's caretaker during the day, and Geraldine helped out at night by preparing his meals. Because her father-in-law was on a "renal diet," his food portions, especially meat, had to be weighed with precision. The triple-beam scale, which had been kept in the pantry when he was alive, was used for this purpose, and no other. She extended his meals by sprinkling Inositol over the food. She would prepare his meals in advance and set them aside in plastic sandwich bags. After the father died, the scale was stored in the closet, and the Inositol and sandwich bags were stored in the roll-top desk. The scale had not been used after the father's death because she dropped and broke it when placing it in the closet. The police removed it from the closet and placed it on the desk during the search of her apartment.

Geraldine also explained uses for other items that had been offered by the Commonwealth as paraphernalia used in the drug trade. The pager was hers, and was used to reach Michael at a time when their child frequently became ill at school. She testified that she used the butter knife as a letter opener, and that she attended to the family bills at the roll-top desk. The scratches on the Harley Davidson brochure were the result of Michael's cutting Harley Davidson emblems from the brochure and laminating them onto magnets.

The police scanner belonged to the father, who had listened to it constantly until his death. The father's monthly pension checks, which totalled approximately $1,100, went to his care, and to compensate Michael for giving up his job to serve as his father's caretaker. The $10,000 found in an envelope in the strongbox was money that the father had saved. As for the $8,750 in the blue bank bag, $7,000 were proceeds of two life insurance policies the father had left to the defendants, $1,100 was money Geraldine's employer had reimbursed her for a short term loan she had made, and the rest was "house money" Geraldine had put aside.

Geraldine testified that she made short-term loans to her employer, a trucking company, to help keep the company operating. The company was in bankruptcy, and she used her credit cards to pay for current company expenses. The company would then reimburse her and record the payment on its books as "toll money." Her motive for helping in this manner was to build up a good personal credit rating which she could someday use to obtain a mortgage to purchase a home. She had twenty-six credit cards, all in good...