Commonwealth v. Negron
| Citation | 2005 MBAR 321 |
| Decision Date | 22 June 2005 |
| Docket Number | ESCR2005494 |
| Parties | Commonwealth of Massachusetts v. Angel Negron |
| Court | Massachusetts Superior Court |
As-is Docket Number: ESCR2005-494
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Agnes, Peter W., J.
This present controversy arises out of the arrest of the defendant, Angel Negron, on March 21, 2005 in Lawrence Massachusetts for Trafficking in Cocaine in excess of 200 grams and Distribution of Cocaine. The defendant was arraigned on these charges in District Court on March 22 2005. After proceedings in the district court which do not have a bearing on the present problem, he was indicted by the Essex County Grand Jury. On May 24, 2005, the defendant was arraigned before this court on four indictments charging him with these same violations. See G.L.c. 94C, §§32A and G.L.c. 94C, §§32E. Bail was set in the amount of one million dollars with surety or $100,000 cash. On that same day, a motion for return of seized property was filed by attorney Paul Farina on behalf of his client, the defendant Angel Negron, and Evelyn Lopez-Mercado who has offered to be the surety for the defendant (paper no. 5).
The defendant and Ms. Lopez-Mercado maintain that their rights were violated when the Massachusetts State Police seized the $100,000 cash on May 4, 2005 without a warrant and without probable cause while Ms. Lopez and others waited at the Essex County House of Correction and Jail at Middleton to post the cash as bail for the defendant. Following an evidentiary hearing, the court makes the following findings of fact and rulings of law.
The investigation which led to the defendant's arrest was led by Sergeant Canty and Trooper Masterson of the Massachusetts State Police who at the time were assigned to the Essex County Drug Task Force. The investigation also involved federal law enforcement agents including Special Agent Dowling of the Division of Homeland Security. They were investigating drug trafficking and bulk cash smuggling in the Lawrence, Massachusetts area.
During the investigation, Deputy Sheriff Shawn Richards of the Essex County Sheriff's Department, who also is assigned to the Essex County Drug Task Force, participated in surveillance of "controlled buys" involving the defendant Angel Negron. There were three completed controlled buys. The defendant was observed during the daytime hours on February 16, 2005 to leave 21 Wendell Street and drive without stopping to a location within several miles which Deputy Richards could not identify. The defendant was again observed during the daytime hours on February 24, 2005 to leave 21 Wendell Street and drive without stopping to the "Plaza" described as on or near Broadway or Cross Street in Lawrence. The defendant was observed a third time during the daytime hours on March 11, 2005 to leave 21 Wendell Street and drive several miles without stopping to a location which Deputy Richards could not identify.
The defendant was arrested on March 21, 2005 as he operated his motor vehicle and reportedly while on his way to complete another prearranged controlled buy. The police discovered a sophisticated, electronic "hide" or hidden compartment in the dashboard of the defendant's car in which they found in excess of 14 grams of cocaine. Based on this discovery and other information, the police obtained a search warrant for 21 Wendell Street in Lawrence, Mass. The property consists of residential apartments and is owned by Sarah Lluberes (the principal putative surety in this case). She and the defendant were present at 21 Wendell Street during the execution of the search warrant. The police discovered a significant quantity of cocaine located in a bureau in the basement area of the building. They also found several picture identifications containing the photograph of the defendant under several different names. The police also discovered and opened a safe deposit box which contained another picture identification containing the defendant's picture but a different name, along with what appeared to be female jewelry. Both male and female clothing were found at the apartment. The officers gained entry to the basement by means of a key supplied by the defendant. Ms. Lluberes, as landlord of the premises, also had a key to the basement. Ms Lluberes denied any knowledge of the existence of the drugs. She was not arrested at the time of the search, and has not been charged with any violations of the criminal law. She has not been identified as the target of any ongoing police investigation.
On May 3, 2005, the defendant was being held at the Middleton House of Correction under an order of the district court in lieu of bail in the amount of one million dollars with surety or $100,000 in cash. At approximately 7: 30 p.m., two women, Evelyn Lopez Mercado and Sarah Lluberes, along with attorney Paul Farina arrived at the jail and advised the Sheriff's Department that they had $100,000 in cash (hereafter "the currency") and wanted to post it as bail for the defendant. The Records Unit of the Sheriff's Department followed standard procedure by checking each putative surety to determine that she did not have a prior criminal record. There is no indication that these women did not qualify as sureties and therefore the court assumes that they met whatever criteria are used by jail officials for that purpose. The Sheriff's Department also called First Assistant Clerk-Magistrate Robert Murphy who was the judicial officer assigned to handle out of court bails that evening.
When Murphy learned that the amount of the bail was $100,000 and that two women were at the jail with cash in that amount to post, he became suspicious about the source of the funds. He also had concerns about handling such a large amount of cash. He decided not to respond to the jail to conduct a hearing. Clerk Murphy suggested that the sureties go to the Lawrence District Court the following day and present the cash to the district court Clerk.
Murphy also contacted the Massachusetts State Police, informed them of the facts, including his suspicions, and stated that he would not be coming to the jail. The State Police indicated they would alert the District Attorney's Office. The Sheriff's Department was aware that in addition to the bail order, the federal government had lodged an immigration detainer against the defendant and that even if bailed he would not be released from custody that evening.[1] On other occasions, Clerk Murphy has taken out of court bails involving amounts of cash in excess of $100,000. The three above-named individuals waited at the jail from 7: 30 p.m. until about 11: 00 p.m. before learning that there would be no bail hearing that evening.
On the following day, May 4, 2005, the two sureties did bring the currency to the Lawrence District Court and sought to post it as bail. However, they learned that the court had a policy against issuing process to bring a prisoner to the court for the sole purpose of having bail posted. Once again, the Records Unit at the Middleton Jail contacted Clerk Murphy and advised him of the situation. Clerk Murphy suggested that the sureties speak to the daytime bail commissioner, Manuel Dakos.[2] Clerk Murphy contacted Mr. Dakos, told him that there were several individuals with a large amount of cash who would be contacting him in an effort to post bail for the defendant, and advised him of the potential involvement of the state police.
Thereafter, Ms. Lopez-Mercado and Ms. Lluberes did speak to the daytime bail commissioner who told them to go back to the jail. Attorney Farina and the two women returned to the jail at approximately 12: 00 noon in an effort to post bail for the defendant. Again, they brought the currency. There, they were met by Trooper Masterson and other members of the Essex County Drug Task Force. I find that Ms. Lluberes speaks some English although Spanish is her first language. She was able to converse with the police in English, but with limitations and was not always able to understand the police or to be understood. Ms. Mercado-Lopez does not speak English. Each of the women was cooperative with the police.
Ms. Mercado-Lopez had physical custody of the cash which was in a paper bag. Trooper Masterson does not speak Spanish. He communicated with Ms. Lopez-Mercado through a Spanish-speaking employee of the Sheriff's Department. It is impossible to assess the extent to which the suspicions harbored by the police about the source of the funds were heightened by the communications problems with the two women, but in assessing the totality of the circumstances it appears that the language barriers did adversely affect the ability of the two women to fully and completely answer the questions posed by the police. Each of these women had valid identifications. Ms. Lopez-Mercado had a Massachusetts driver's license that gave an address of 117 South Broadway in Lawrence. This created suspicion in the mind of the police because Trooper Masterson was aware that the address was the location of a cellular phone store where the defendant had been observed in the past. However, it was later revealed that Ms. Lopez-Mercado owns that business.
Trooper Masterson questioned the two women about the source of such a large quantity of cash. Ms. Mercado-Lopez stated that $50,000 was contributed by Ms. Lluberes and $50,000 was raised by her (Ms. Lopez-Mercado) from friends. She explained that she lived at 59 Bromfield Street, apartment #2 in Lawrence and worked at the cellular phone business located at 117 South Broadway in Lawrence. See exhibits 4 & 5. She also stated that $6,000 had come from a person by the name of Luis...
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