Commonwealth v. Diaz

Citation999 N.E.2d 503 (Table),84 Mass.App.Ct. 1126
Decision Date23 December 2013
Docket NumberNo. 12–P–673.,12–P–673.
PartiesCOMMONWEALTH v. Frederick DIAZ.
CourtAppeals Court of Massachusetts

84 Mass.App.Ct. 1126
999 N.E.2d 503 (Table)

COMMONWEALTH
v.
Frederick DIAZ.

No. 12–P–673.

Appeals Court of Massachusetts.

December 23, 2013.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in Superior Court, the defendant was convicted of trafficking in cocaine in an amount of twenty-eight grams or more. The conviction was based on two packages of cocaine that the police seized from the defendant's car following a warrantless search. Prior to trial, the defendant unsuccessfully moved to suppress that evidence. The motion judge denied the motion on grounds that he raised sua sponte, and the principal issue on appeal is whether that ruling was correct. Because we agree with the defendant that the discovery of the cocaine was the product of an invalid search, we reverse.1

The motion judge made extensive oral findings, and the defendant has not shown these findings to be clearly erroneous. We therefore accept those findings as true and review whether the judge properly applied the law. Commonwealth v. Mubdi, 456 Mass. 385, 388 (2010). The police spotted the defendant's car parked in the rear parking area of a building that housed a business known as Family Oil. At that point, the police were aware that the Family Oil building was regularly used during off hours for small social gatherings that included the defendant, and that the defendant even had a key to the premises. Nevertheless, the defendant's presence at the Family Oil property sparked the interest of the police because—several months earlier—they had received information from confidential sources that the defendant sold drugs, including sometimes at Family Oil, and that he sometimes packaged drugs there. As the judge found, the informants' “past history of providing accurate information up until that time at least has not been established.”

Although the judge ultimately characterized the police entry onto the property as a “well being check” of the premises, it is undisputed that the police at that time had an interest in investigating the defendant's alleged drug activities there. See Commonwealth v. Lubiejewski, 49 Mass.App.Ct. 212, 216 (2000), quoting from Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (community caretaker exception does not apply where police are engaged in the “detection, investigation, or acquisition of evidence relating to the violation of a criminal statute”). There is thus at least some doubt as to the validity of the police officers' initial entry onto the Family Oil premises.

After they entered the property, the police saw the defendant exit the Family Oil building and—perhaps having become aware of their presence—hurriedly place his jacket into his car and seek to reenter the building. The police immediately seized the defendant and physically restrained him. There is doubt about whether the police...

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