Commonwealth v. Destephan, 101015

• Decision Date: 16 May 2011
• Docket Number: 101015
• Parties: Commonwealth v. David Destephan No.115826
• Court: Massachusetts Superior Court

Commonwealth
v.
David Destephan

No.115826

No. 101015

Superior Court of Massachusetts, Middlesex

May 16, 2011

Caption Date: May 16, 2011

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Billings, Thomas P., J.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND DEFENDANT'S MOTION TO SUPPRESS STATEMENTS

Thomas P. Billings, Associate Justice

The defendant is charged with trafficking in oxycodone, possession of a Class E substance (alprazolam) with intent to distribute, and two counts of conspiracy to violate Chapter 94C. The case began with an investigation into an oxycodone distribution enterprise in Billerica. Delivery, money transfer and telephone records, interviews in Billerica, and fingerprint evidence pointed to a Florida wholesale source; specifically, the defendant Destephan.

Using information supplied by the Billerica police, a Florida DEA agent applied for and obtained a federal warrant to search Destephan's Miami residence. The warrant issued on August 18, 2009 and was executed the same day. A Billerica detective was on the search team, which also included members of the Miami-Dade police department. The defendant now seeks to suppress the fruits of (a) the warranted search of his residence, (b) a statement he gave at the scene, and (c) a further search which exceeded the parameters of the warrant but to which the defendant ostensibly consented. I held an evidentiary hearing and heard argument on April 26, 2011.

For the following reasons, Defendant's Motion to Suppress Statements and Defendant's Motion to Suppress Evidence are both ALLOWED in their entirety.

I. THRESHOLD ISSUE: COLLATERAL ESTOPPEL

At the outset, the Commonwealth argues that Destephan is collaterally estopped from moving to suppress the evidence in this case by virtue of a Florida criminal proceeding involving contraband that was seized in the same search as is challenged here, but does not form the basis of any of the Massachusetts charges. That search yielded a quantity of Oxycontin pills, for which Destephan was arrested. He was arraigned on September 17, 2009 in the Miami-Dade circuit criminal court.^[1] No motion to suppress was ever filed or litigated, however; instead, on February 2, 2010, Destephan entered into a plea agreement, tendered his plea of guilty, and was sentenced to three years' probation and $633.00 in fines and court costs.

Seven months later, on September 9, 2010, a Massachusetts grand jury indicted Destephan in this case. On September 23 the indictment was returned in court, and Destephan was defaulted. On October 14, he brought a motion in the Miami-Dade court for permission to travel, which was allowed the next day. He appeared and was arraigned in this Court on October 25. Bail was set at $20, 000, which Destephan has not posted. Back in Miami, his attorney filed a motion to terminate his probation, which the court there allowed on January 14, 2011.

Before me, Destephan's counsel (a member of the Florida bar, who also represented Destephan in the Miami-Dade case) recalled that the Florida disposition was a "withholdive adjudication" based on a "best interests plea of no contest."^[2] This may well be so, though the docket provides no insight on the question and I do not have a transcript of the plea hearing. In any event, it makes no difference to the collateral estoppel issue whether or not the defendant admitted guilt in connection with his plea.

In Commonwealth v. Cabrera, 449 Mass. 825 (2007), the SJC discussed the application of collateral estoppel, a doctrine which "has its roots in civil proceedings, " to criminal cases.

Collateral estoppel guarantees that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."

Five requirements must be met for collateral estoppel to apply in the context of a suppression motion: (1) the issues in the two proceedings must be identical; (2) the party estopped must have had sufficient incentive to litigate the issue fully and vigorously; (3) the party estopped must have been a party to the previous litigation; (4) the applicable law must be identical in both proceedings; and (5) the first proceeding must have resulted in a final judgment on the merits such that the defendant had sufficient incentive and an opportunity to appeal.

449 Mass. at 829 (citations and footnote omitted). Put more succinctly,

collateral estoppel requires the concurrence of three circumstances: (1) a common factual issue; (2) a prior determination of that issue in litigation between the same parties; and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar. The burden of showing these circumstances is always on the person raising the bar.

Commonwealth v. Lopez, 383 Mass. 497, 499 (1981).

The most fundamental flaw in the Commonwealth's collateral estoppel argument is that unlike Cabrera^[3] and every other case where collateral estoppel applies, the factual issues sought to be precluded in this action—the constitutionality of the searches and the statement in Miami—were never litigated or decided in the Florida criminal case. See Commonwealth v. Rodriguez, 443 Mass. 707, 709-10 (2005) (collateral estoppel, also called issue preclusion applies "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment..."; citation omitted).^[4]

A second, and logically related, defect is that Destephan, having been offered probation in Florida pursuant to a plea agreement that relieved him from a three-year mandatory sentence, see note 1, supra—and not yet having been charged in Massachusetts—had little incentive to litigate the suppression issues; in fact, he never even brought a motion. Finally, as discussed in the section immediately below, the law applicable in this proceeding is not the same as would have been applied had the suppression issues been litigated in a Florida court, where the "good faith" exception to the exclusionary rule might have salvaged the fruits of an unconstitutional search. For all of these reasons, Destephan remains free to litigate the admissibility of the fruits of the searches, as well as his statement, in this proceeding.

II. VALIDITY OF THE SEARCH WARRANT

The warrant in question issued on August 28, 2009 out of the United States District Court for the Southern District of Florida. The application was supported by the affidavit of Special Agent David Huang of the Drug Enforcement Agency's Fort Lauderdale office, and recites that the information therein was developed in a joint investigation by the DEA, the FBI, and the Billerica Police Department into an oxycodone and Xanax trafficking operation in Billerica. The principals of the operation were Kevin Cormier and Mark Doherty. Because the chief challenge to the warrant is that the information was stale, I here summarize the chronology given in Agent Huang's affidavit, which began with the observation that the averments therein were "based on a joint investigation by the Billerica (Massachusetts) Police Department, the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF'), and the DEA."

October 2008	Billerica investigation begins.
November 12, 2008	Undercover buy of two oxycontin pills from Kevin Cormier and Mark Doherty, in Billerica; both Cormier and Doherty arrested.
January 2009	Confidential informant tells ATF and Billerica police that between September and December 2008, he sold five New Hampshire-purchased handguns to Doherty in barter transactions for oxycontin pills. The CI's purchases are confirmed in gun shop records. From a photo array, CI identifies Doherty and also Mark Cincotta, another dealer from whom he has purchased oxycontin on 10-15 occasions. Unnamed sources report that Doherty is purchasing large quantities of oxycontin from a Florida source.
January 6, 2009	CI makes a controlled purchase of two oxycontin pills from Doherty.
January 23, 2009	With a warrant, police search Doherty's Lowell, Massachusetts residence. The search yields five Xanax pills and no oxycontin, but in a safe the police find seven wire transfer receipts showing transfers by Doherty and William Regan to defendant Destephan (at 677 N.E. 87th Street, Miami) and Regan himself. The transfers were to Miami, totaled $19, 839, and occurred between November 2 and December 28, 2008.
A ledger records the transfers and has abbreviations suggestive of quantities and types of drugs. Doherty, Regan and Cincotta are present for the search.
The police look in Cincotta's wallet for identification, and find (to Cincotta's avowed puzzlement) a note with a Federal Express tracking number and a phone number. Police determine that the package originated in Miami and will arrive at Cincotta's home the next day.
January 24, 2009	Police intercept the Cincotta package, get a warrant, open it, and find 100 oxycodone pills and 100 Xanax pills.
From FedEx and UPS records, police determine that between September 23, 2008 and January 23, 2009, Doherty, Regan and Cincotta have received at least twenty packages from largely fictitious Miami addresses, on dates corresponding closely with those of the wire transfers, from senders with names (Stevens, Estephan, Stefano) that they suspect may be aliases for Destephan.
From phone records, police learn of 1, 295 calls between Regan and Destephan and 111 calls between Doherty and Destephan between September 2008 and January 2009, often clustered around the dates of the wire transfers. Also, Cincotta called Destephan numerous times on January 24, 2009.
February 12, 2009	Police interview Regan, who admits to...