Commonwealth v. Delgado-Rivera

• Decision Date: 01 June 2021
• Docket Number: SJC-12919
• Parties: COMMONWEALTH v. Jorge DELGADO-RIVERA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

487 Mass. 551

168 N.E.3d 1083

COMMONWEALTH

v.Jorge DELGADO-RIVERA.

SJC-12919

Supreme Judicial Court of Massachusetts, Middlesex.

Argued November 2, 2020.

Decided June 1, 2021.

Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.

Barry A. Bachrach, Leicester, for the defendant.

David Rassoul Rangaviz, Committee for Public Counsel Services, Matthew R. Segal, Jessie J. Rossman, Jason D. Frank, & Michael A. Hacker, Boston, for American Civil Liberties Union of Massachusetts, Inc., & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

GAZIANO, J.

Jorge Delgado-Rivera and six codefendants were indicted on charges of trafficking in 200 grams or more of cocaine, G. L. c. 94C, § 32E (b ) ; conspiracy to violate the drug laws, G. L. c. 94C, § 40 ; and conspiracy to commit money laundering, G. L. c. 267A, § 2. Delgado-Rivera's indictments stemmed from an investigation that originated, in part, from evidence acquired during a search of his codefendant's cellular telephone. Delgado-Rivera sought to join the owner of the telephone in a motion to suppress evidence obtained as a result of the search, which produced, inter alia, the contents of text messages sent by Delgado-Rivera; Delgado-Rivera argued that he had a privacy interest in the sent messages, while the Commonwealth argued that he had no standing to challenge the search. A Superior Court judge concluded that Delgado-Rivera had standing to challenge the motor vehicle stop of his codefendant, as well as the voluntariness of the search, and allowed him to join the motion to suppress.¹

We conclude that, in the circumstances at issue here, the judge erred in deciding that Delgado-Rivera could join in the motion to suppress to challenge the stop and subsequent search. Delgado-Rivera should not have been allowed to join in the motion to suppress because he enjoyed no reasonable expectation of privacy, under either State or Federal law, in the text messages sent by him that were stored on a cellular telephone belonging to, and possessed by, another person.²

1. Factual background. Although the judge held an evidentiary hearing on the motion to suppress and, subsequent to that hearing, the Commonwealth requested that the judge "issue written findings of fact," ultimately her decision contained no explicit findings of fact. We recite the facts based upon the uncontroverted and undisputed evidence offered at the suppression hearing. See Commonwealth v. Alexis, 481 Mass. 91, 93, 112 N.E.3d 796 (2018).

On September 18, 2016, then Officer Jose Tamez of the Pharr police department in Texas stopped a vehicle in neighboring McAllen, Texas, after he observed a traffic violation. Tamez had been watching the vehicle because he had received information that Federal agents were conducting an investigation that indicated that the vehicle might contain narcotics. Leonel Garcia-Castaneda was the driver and sole occupant of the vehicle. The stop included a canine search of the vehicle and a search by Tamez of the vehicle as well as of Garcia-Castaneda's cellular telephones. There is a factual dispute as to whether Garcia-Castaneda consented to these searches.³

While looking through one of Garcia-Castaneda's cellular telephones, Tamez observed text messages sent to and received from a Massachusetts area code. The messages appeared to discuss shipments of narcotics and payments to be made into certain bank accounts. The search, which evolved to include an X-ray of the vehicle at a nearby port of entry, did not yield contraband, and Castaneda thereafter was released with a warning. During the stop, Tamez was assisted by a second member of the Pharr police department, who also was a task force officer with the Department of Homeland Security.

Following the stop, Texas authorities relayed the information they had gleaned to law enforcement officers in the Commonwealth, who linked the Massachusetts telephone number to Delgado-Rivera. Police in Massachusetts thereafter conducted an investigation of Delgado-Rivera and other individuals suspected of engaging in a series of related drug trafficking and money laundering schemes. This investigation led to the indictments of Delgado-Rivera, along with Garcia-Castaneda, Jairo Salado-Ayala, Maritza Medina, Brandon Ortiz, Adika Manigo, and Mark Yarde as codefendants.

2. Procedural background. Garcia-Castaneda moved to suppress all evidence seized during the traffic stop; he argued that the search was without a warrant and without probable cause, in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. Delgado-Rivera moved to join Garcia-Castaneda's motion; the Commonwealth opposed the motion on the ground that Delgado-Rivera lacked standing to challenge the search.

At the evidentiary hearing on the motion to suppress, a Superior Court judge orally ruled that Delgado-Rivera had standing and allowed him to join Garcia-Castaneda's motion. In response to the Commonwealth's request, the judge subsequently issued a written decision on the matter. The Commonwealth sought leave to pursue an interlocutory appeal in the county court pursuant to Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017), and the single justice allowed the appeal to proceed in the Appeals Court. We then transferred the matter to this court on our own motion.

3. Standard of review. In reviewing a judge's decision on "a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Washington, 449 Mass. 476, 480, 869 N.E.2d 605 (2007), citing Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). See Commonwealth v. Tremblay, 480 Mass. 645, 652, 107 N.E.3d 1121 (2018). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Scott, supra, quoting Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

4. Constitutional provisions. Article 14 and the Fourth Amendment protect individuals from unreasonable, governmental searches and seizures. The rights secured by these protections are specific to the individual. Under the Fourth Amendment, the right to be free from an unreasonable search and seizure is a "personal right." See Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) ("rights assured by the Fourth Amendment are personal rights"). With respect to art. 14, "an individualized determination of reasonableness" similarly is required in light of the individualized rights protected. Commonwealth v. Feliz, 481 Mass. 689, 690-691, 119 N.E.3d 700 (2019), S.C., 486 Mass. 510, 159 N.E.3d 661 (2020). Thus, under both State and Federal law, "the question is whether the challenged search or seizure violated the ... rights of a criminal defendant who seeks to exclude the evidence" obtained from the search, specifically those rights of privacy that these constitutional provisions were "designed to protect." Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

See generally Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 2213–2214, 201 L.Ed.2d 507 (2018) ; Commonwealth v. McCarthy, 484 Mass. 493, 498, 142 N.E.3d 1090 (2020). A defendant bears the burden of establishing such an infringement. See Rawlings v. Kentucky, 448 U.S. 98, 104–105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) ; Commonwealth v. Miller, 475 Mass. 212, 219, 56 N.E.3d 168 (2016).

The substantive rights protected by these constitutional provisions, however, are not necessarily coterminous. Article 14 "does, or may, afford more substantive protection to individuals than that which prevails under the Constitution of the United States." Commonwealth v. Mora, 485 Mass. 360, 365, 150 N.E.3d 297 (2020), quoting Commonwealth v. Almonor, 482 Mass. 35, 42 n.9, 120 N.E.3d 1183 (2019). See, e.g., Commonwealth v. Stoute, 422 Mass. 782, 785-789, 665 N.E.2d 93 (1996) ( art. 14 defines moment when individual's personal liberty has been restrained by police more broadly than does Fourth Amendment); Commonwealth v. Upton, 394 Mass. 363, 373, 476 N.E.2d 548 (1985) (concluding that probable cause to issue search warrants is more narrowly defined under art. 14 than under Fourth Amendment). The Fourth Amendment provides a floor below which the protection granted by art. 14 cannot fall. See Garcia v. Commonwealth, 486 Mass. 341, 350, 158 N.E.3d 452 (2020) ("Privacy rights under art. 14 are at least as extensive as those under the Fourth Amendment").

The tests that courts have adopted to determine whether defendants validly may invoke the protections of these constitutional provisions are related but distinct. Traditionally, under art. 14, "we determine initially whether the defendant has standing to contest the search and then whether she [or he] had an expectation of privacy in the area searched." Commonwealth v. Williams, 453 Mass. 203, 207-208, 900 N.E.2d 871 (2009). Although the "two concepts are interrelated, we consider them separately." Id. at 208, 900 N.E.2d 871. See Commonwealth v. Frazier, 410 Mass. 235, 244 n.3, 571 N.E.2d 1356 (1991) ("we think it is best to separate the issue of standing from the question whether there has been a search for constitutional purposes"). Only if the defendant proves both standing and a reasonable expectation of privacy do the protections of art. 14 apply. Almonor, 482 Mass. at 40-41, 120 N.E.3d 1183. See Commonwealth v. Tavares, 482 Mass. 694, 705, 126 N.E.3d 981 (2019) ; Commonwealth v. Lugo, 482 Mass. 94, 107-108, 120 N.E.3d 1212 (2019).

For purposes of art. 14, "[a] defendant has standing [to challenge a government search] either if [he or] she has a possessory interest in the place searched or in the property seized or if [he or] she was present when the search...