Commonwealth v. Santana

Decision Date24 February 2021
Docket NumberDocket: 1977CR00458
PartiesCOMMONWEALTH v. ALBERTO SANTANA
CourtMassachusetts Superior Court

Dates: February 24, 2021

Present: Jeffrey T. Karp Associate Justice, Superior Court

County: ESSEX, ss.

Keywords: MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTIONS TO SUPPRESS POLE CAMERA EVIDENCE (Paper Nos. 20 and 23)

As the result of a long-term investigation by police of a sophisticated drug trafficking organization that allegedly operated in Lawrence and Methuen, the Commonwealth obtained indictments in 2019 against defendant Alberto Santana (“Santana”) and sixteen other members of the alleged drug trafficking organization. He is charged with drug trafficking and firearms offenses arising from the police investigation.

On August 6, 2020, the Supreme Judicial Court ruled in Commonwealth v. Mora, 485 Mass. 360 (2020), for the first time that the continuous surveillance of a person’s residence by police for more than two months by use of a pole camera is a “search” under Article 14 of the Massachusetts Declaration of Rights and, prospectively, requires a search warrant. Id. at 376.

In this case, Santana has moved to suppress evidence generated from pole cameras used by police to surveil his two residences in Lawrence located at 15 – 17 Ames St. and 81 Stearns Avenue.1 More specifically, Santana seeks to suppress the camera footage and police observations thereof, which the police used, inter alia, to obtain search warrants for the two homes. Thus, the parties ask the Court to determine if the Commonwealth met its burden under Mora to establish, generally speaking, that the officers had probable cause when they installed each of the pole cameras in 2019.

On October 27, 2020, and February 17, 2021, the Court conducted an evidentiary hearing on Defendant’s Supplemental Motion To Suppress Evidence In Light Of The Court’s Decision In Mora (Ames St. Motion) (Paper No. 20) and Defendant’s Motion To Suppress Pole Camera Evidence Used To Obtain The Search Warrant For 81 Stearns Street (“Stearns Ave. Motion”) (Paper No. 23).2

At the hearing on October 27, 2020, the Court received two exhibits in evidence: (i) (supplemental) Affidavit of Robert C. Noonan (Exhibit 1) (“Supplemental Affidavit”), offered by the Commonwealth; and, (ii) Application For An Order And Warrant To Intercept Certain Oral And/Or Wire Communications Over Telephone Service Numbered 617-380-9599 Pursuant To G.L. c. 272, § 99 (Exhibit 2) (“Wiretap Application 1”), offered by Santana.3

At the hearing on February 17, 2021, Santana submitted the following additional evidence for the Court’s consideration: (i) thumb drive containing short portions of three videos captured by the car camera deployed by police on Ames St. (Exhibit 3); (ii) list of electronic surveillance locations (Exhibit 4); (iii) Affidavit of Sgt. Daniel P. Clemens and Trooper Robert C. Noonan In Support Of Application For Warrant For Electronic Surveillance Pursuant To G.L. c. 272, § 99, dated April 8, 2019 (Exhibit 5); (iv) Affidavit of Sgt. Daniel P. Clemens and Trooper Robert C. Noonan In Support Of Application For Warrant For Electronic Surveillance Pursuant To G.L. c. 272, § 99, dated April 22, 2019 (Exhibit 6); and, (v) Application For An Order And Warrant To Intercept Certain Oral And/Or Wire Communications Over Telephones Numbered (603)275-2879 . . . Pursuant To G.L. c. 272, § 99 (Exhibit 7).

As is fully explained below, after thorough consideration of the Supplemental Affidavit, the other Exhibits, the parties’ submissions, and arguments of counsel, the Ames St. Motion and the Stearns Ave. Motion are DENIED.

FINDINGS OF FACT

The Court makes the following findings from the facts set forth in the Supplemental Affidavit and reasonable inferences drawn therefrom.4

1. Overview Of Investigation

In spring 2017, Trooper Robert Noonan (“Noonan”) and Sgt. Daniel Clemens (“Clemens”) of the Massachusetts State Police (“MSP”), and other investigators began investigating a narcotics distribution network in the Lawrence area. The initial target of the investigation was Robinson Adames Abreu (Adames Abreu), who investigators suspected was selling fentanyl, heroin, and cocaine in the Lawrence area. Investigators learned cellular telephone numbers used by Adames Abreu, and identified Jhony Mota- Rodriguez and Jose Lugo-Garcia as “runners” he used to deliver narcotics to buyers.

Clemens eventually arranged and conducted eleven undercover purchases of narcotics from Adames Abreu and his runners. Investigators suspected Adames Abreu used an auto body garage located at 333 Methuen St., Lawrence (“Garage”) to sell and store (“stash”) narcotics.

2. Continuing Investigation And Initial Wiretap Warrants

On March 25, 2019, investigators obtained an order from a Superior Court judge (“Judge”)5 that authorized the interception of communications over a cellular telephone number (i.e., a “wiretap warrant”) used by Adames Abreu. Immediately thereafter investigators intercepted communications during which Adames Abreu engaged in the distribution of narcotics.6

3. Police Identify Santana As A Narcotics Supplier

Through the intercepted communications, investigators quickly determined that a person later identified (i.e., on April 9, 2019) as Santana supplied narcotics to Adames Abreu.

For example, on March 26, 29, and 30, 2019, investigators intercepted multiple communications between Santana and Adames Abreu during which Adames Abreu requested additional time to pay Santana money for a previous narcotics purchase and Adames Abreu complained about the quality of the narcotics Santana previously supplied. Santana told Adames Abreu that he would ask “these people about giving Adames Abreu additional time to pay the money owed. Shortly thereafter, Santana told Adames Abreu that they gave him (Santana) a few additional days to collect the drug debt. Later, Santana told Adames Abreu that he “called [his] people regarding Adames Abreu’s complaints about the quality of the previously sold narcotics, but he was told it was too late to address the complaints. Based on these communications in late March 2019, the police reasonably believed Santana was an active member of a drug trafficking organization and that he reported to higher-ranking members.

On April 2 and 3, 2019, officers intercepted communications during which Santana and Adames Abreu discussed collecting the money owed, and Santana reported that “those people are mad” and are “pressur[ing] him to collect the money. On April 8, 2019, the Judge renewed the wiretap warrant for Adames Abreu’s telephone number, and authorized wiretap warrants for a cellular telephone number used by Santana and another number used by Adames Abreu.

By early April 2019, investigators reasonably determined from intercepted communications, surveillance, and location data7 that Santana was a member of a highly organized, sophisticated drug trafficking organization (“DTO”), and that the source of fentanyl and cocaine Santana sold to Adames Abreu and others came from members of the DTO. Officers also reasonably concluded that Santana collected money from Adames Abreu and other buyers on behalf of the DTO.

4. Operative Events Regarding Santana’s Nexus To The Two L ocations At Issue

By at least April 12, 2019, the police reasonably believed that Santana lived at 81 Stearns Ave. and used a location near 15-17 Ames St. to “stash” narcotics.

For example, using CSLI from Santana’s cell phone, police determined his cell phone was at 81 Stearns Ave. from 9:45 p.m. on April 8, 2019 to 11:04 a.m. on April 9. While Santana was there during the late morning on April 9, officers intercepted Santana discussing a shipment of narcotics he was awaiting. Shortly thereafter, location data placed Santana’s cell phone near 15–17 Ames St. (i.e., on April 9, 2019, from 11:19 a.m. until 12:19 p.m.). While Santana was present at that location, officers intercepted communications during which Santana received information that the shipment of fentanyl he was awaiting had arrived, and he discussed meeting UM66818 at the location with money to pay for the shipment. Shortly thereafter, officers observed Santana enter a motor vehicle near 81 Stearns Ave. and drive away.9 Shortly thereafter, location data placed Santana’s cell phone near 15-17 Ames St., and then officers observed Santana near the Garage and intercepted him asking Adames Abreu to “open” up. Based on this information, officers reasonably believed that Santana picked up fentanyl from a supplier and delivered it to Adames Abreu at the Garage. After the delivery, officers observed Santana, Adames Abreu, and Mota-Rodriguez exit the Garage (at different times), and location data showed Santana’s cell phone returned to 15-17 Ames St. and stayed there for approximately 45 minutes. During that time, officers intercepted Santana communicating with a narcotics purchaser who complained about the quality of narcotics Santana previously sold and Santana arranged the sale of a kilogram of fentanyl to that buyer. Shortly thereafter, location data placed Santana’s cell phone at 81 Stearns Ave.

Also on April 9, 2019, officers intercepted Santana discussing a sale of narcotics to UM1920. On April 10, 2019, location data placed Santana’s cell phone in the area of 15-17 Ames St. for approximately 90 minutes. During that time, officers intercepted Santana coordinating the sale of narcotics to UM1920 that officers heard Santana and UM1920 discuss the previous day. Location data then placed Santana’s cell phone in the area of 81 Stearns Ave. during which he arranged to meet UM1920 “in fifteen minutes.” Shortly thereafter, location data placed Santana’s cell phone near the Garage. Thus, the police reasonably believed Santana consummated the narcotics sale to UM1920 near the Garage. During late morning on April 11, 2019, location data placed Santana’s cell phone at the Garage. While there, officers intercepted Santana arranging another sale of...

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