Commonwealth v Cruz
| Decision Date | 22 October 2001 |
| Docket Number | 99p1427 |
| Citation | 53 Mass. App. Ct. 24 |
| Parties | COMMONWEALTH vs. EDWARD CRUZ. 99-Massachusetts Court of Appeals |
| Court | Appeals Court of Massachusetts |
County: Essex.
Present: Brown, Perretta, Jacobs, Greenberg, & Gelinas, JJ.1
Arrest. Search and Seizure, Probable cause, Protective sweep, Plain view. Probable Cause. Constitutional Law, Search and seizure. Evidence, Hearsay. Practice, Criminal, Argument by prosecutor.
Indictments found and returned in the Superior Court Department on September 11, 1996.
A pretrial motion to suppress evidence was heard by Richard E. Welch, III, J., and the cases were tried before Peter M. Lauriat, J.
Wendy H. Sibbison for the defendant.
Gregory I. Massing, Assistant District Attorney, for the Commonwealth.
The defendant was convicted of trafficking in cocaine having a net weight of twenty-eight grams or more, G. L. c. 94C, 32E; conspiracy with a codefendant, Brandy Hartzog, to violate the controlled substance laws, G. L. c. 94C, 40; telecommunications fraud, G. L. c. 166, 42A; unlawful possession of telecommunications equipment, G. L. c. 166, 42B; and larceny of property exceeding $250 in value, G. L. c. 266, 30. Prior to trial, the defendant filed a motion to suppress evidence seized from his apartment at the time of a search pursuant to a warrant for drug and drug-related items, procured after a "protective sweep" of the apartment. After an evidentiary hearing, a Superior Court judge denied the suppression motion. The case against the defendant proceeded to trial with Hartzog as a witness for the prosecution under a plea agreement. A jury found the defendant guilty on all of the charges.
On appeal, the defendant argues that his suppression motion should have been allowed because the police lacked probable cause to arrest Hartzog, rendering the subsequent seizure of cocaine from her person and the search of the apartment occupied by them unlawful. In addition, the defendant contends that the seizure of cellular telephone equipment and related unlawful telephone cloning paraphernalia was not authorized by the search warrant and should have been suppressed. On that basis, he argues that the Commonwealth's evidence pertaining to telecommunications fraud and possession of unlawful telecommunications devices was insufficient. He also challenges the admission of certain evidence concerning his past drug-dealing endeavors and contends that portions of the prosecutor's closing argument were improper.
1. Denial of the suppression motion. After a hearing at which Duane Kennefick, a State police officer, testified, the judge issued a seventeen-page memorandum of decision containing his findings of fact. We summarize relevant portions of those findings, supplemented by uncontroverted testimony at the motion hearing. See Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000).
During May, 1996, State police Officer Thomas Coffey enlisted the help of an untested informant concerning a drug- dealing operation in the Haverhill area. Based on information obtained from this informant and another identified informant who was a drug user willing to cooperate with the police because of pending criminal charges against her husband, Coffey and other officers of the Essex county drug task force initiated a surveillance of the defendant's and Hartzog's joint residence at 24 Iris Way in Haverhill. On June 19, 1996, Coffey had Kennefick set in motion a chain of events that led to the arrest of the defendant and Hartzog. They instructed the first untested, but known informant to page the defendant to make a purchase of cocaine, the delivery of which would take place at the informant's residence.2 Other officers conducting a surveillance of the defendant's apartment would track the delivery. One-half hour after the surveillance began, the police saw Hartzog leave the apartment, apparently in response to the informant's telephone call. They followed her to the rendezvous point. When the police approached, she placed a small paisley bag on the roof of the car, unnoticed by them. Asked, "Where is it?" Hartzog pointed to the roof of the car. The police seized the bag and she was placed under arrest.
Fearful that her failure to return to 24 Iris Way would tip off the defendant that the deal had gone awry -- and that the evidence related to their drug-dealing operation would be at risk -- Kennefick went to 24 Iris Way to secure the apartment, by assigning officers to watch it, and made a protective sweep of the apartment. The defendant answered the door, and an officer stayed with him while Kennefick looked through the apartment to make sure no one else was there.3 The judge found that, "while upstairs, Kennefick entered an area that was set up like an office and noticed computer equipment together with a small black box . . . in plain view." Kennefick had seen such a device once before and thought it might be cellular telephone cloning equipment.4 He suspected those items could be used for an unlawful purpose but was not sure.
Without removing anything, and leaving two Haverhill officers to secure the apartment, Kennefick returned to his office to prepare an application for a search warrant. By that time, the defendant had been placed under arrest for dealing in cocaine and brought in for routine booking.
Neither the application and accompanying affidavit nor the warrant obtained to search 24 Iris Way mentioned anything about cellular telephone cloning equipment. The warrant dealt solely with the seizure of evidence related to illegal narcotics distribution. While at his office to prepare the application for the warrant, Kennefick contacted State Trooper Kevin C. Hogaboom, who had special training with the cellular fraud unit, and requested his assistance. Hogaboom assembled a search team who were familiar with the equipment used in cellular technology and specially trained in cellular fraud, composed of two United States Secret Service special agents and a telephone company (Bell Atlantic NYNEX Mobile) employee, to join him and the other officers in the search of the apartment.
Kennefick returned with a warrant to search the apartment and its storage areas, including the garage, for evidence of drug trafficking. In a utility closet off the living room, the officers found a black knapsack -- which Hartzog identified as belonging to the defendant -- containing more than a kilogram of boric acid, two digital scales, and other items associated with cocaine trafficking. In the master bedroom, the defendant's wallet, containing $2,105 in cash, was found. From the floor of the bedroom, the officers recovered an extra-large tee shirt with the recipe for making crack cocaine displayed on the back. In the upstairs office area were two notebooks containing records and notes of narcotics transactions. Hartzog later identified the defendant's handwriting in each notebook.
While the police were executing the search warrant, Hogaboom and his team arrived. Kennefick handed Hogaboom a cellular telephone that he had found in his search of the defendant's car, which was parked in the garage. Hogaboom tested it and found that it had been altered; it was a Motorola telephone, but its serial number began with digits assigned to another brand of cellular telephones. Hogaboom and his colleagues then fanned out through the apartment.
On an ironing board in the master bedroom, Hogaboom found a device used to reprogram telephones and serial numbers of cellular telephone sets. He also discovered a scanner and programmer, a sophisticated and expensive piece of equipment capable of capturing telephone and serial numbers from the airwaves. Both devices, a Motorola program box and a "copycat" box used exclusively to clone cellular telephones, are illegal.
Beside the telephone cloning equipment was a list of MIN and ESN numbers, see note 3 supra, in matched pairs. The list, which could have been generated by the scanner, included 200 telephone numbers owned by the Cellular One Company, including the number that had been programmed into the Motorola telephone. Upstairs, Hogaboom's team found computers and other electronic equipment, including what is known as a double "E" prong box, a second list of MIN and ESN numbers, and instructions for telephone cloning.
a. Probable cause to arrest Hartzog. We need not pause long to consider the defendant's first contention, that the arrest of Hartzog was unlawful and tainted the subsequent search of the apartment. The information the police obtained and corroborated satisfies both prongs of the Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). See also Commonwealth v. Upton, 394 Mass. 363, 374 (1985). Independent police corroboration of a detailed tip may compensate for deficiencies in either or both prongs of the test. Commonwealth v. Cast, 407 Mass. 891, 896 (1990). See Commonwealth v. Spence, 403 Mass. 179, 181 (1988). We continue to use the Draper standard (Draper v. United States, 358 U.S. 307, 309-310, 313-314 [1959]) as a "benchmark" for what is needed to illustrate the necessary level of detail for corroboration. Commonwealth v. Robinson, 403 Mass. 163, 165-166 (1988). Commonwealth v. Cast, 407 Mass. at 896. In this case the information supplied by the two untested informants proved accurate. The vehicle Hartzog drove to the rendezvous fit the description given by the informant, and the approximate time that elapsed between the time of the informant's call to arrange the sale and Hartzog's ultimate meeting with the informant corroborated the informant's account. The information corroborated in this case compares favorably with the facts in Draper and in cases where the Supreme Judicial Court has applied Draper and found sufficient detail to show the information was based on personal knowledge. See Commonwealth v. Robinson, 403 Mass. at 165-166; Commonwealth v. Santana, 403 Mass. 167, 168, 171 (1988); Commonwealth v. Farrow, 403 Mass. 176,...
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