Commonwealth v. Soto-Suazo, 20-P-716

CourtAppeals Court of Massachusetts
Writing for the CourtDITKOFF, J.
Decision Date25 October 2021
Docket Number20-P-716



No. 20-P-716

Appeals Court of Massachusetts, Middlesex

October 25, 2021

Heard: July 13, 2021.

Indictments found and returned in the Superior Court Department on March 24, 2016.

A pretrial motion to suppress evidence was heard by C. William Barrett, J.

An application for leave to prosecute an interlocutory appeal was allowed by David A. Lowy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

Bruce G. Linson for the defendant.

Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Milkey, & Ditkoff, JJ.


The defendant, Wilkims Soto-Suazo, appeals from an order of a Superior Court judge denying a motion to


suppress evidence recovered following a warrantless entry into his girlfriend's apartment. We conclude that the officers' entry was lawful because they had probable cause to believe that the apartment would contain evidence of the defendant's use of a false identity, and that they had a reasonable belief that failing to secure that evidence would result in its destruction, as the defendant's associate informed the police that she had called another person in the defendant's organization while the police were searching her apartment. Further concluding that the motion judge properly found, based on the defendant's girlfriend's testimony, that she subsequently voluntarily consented to a search of the apartment, we affirm.

1. Background.

On December 4, 2015, a search warrant was executed in relation to a drug investigation in which the defendant was a suspect. The warrant authorized the search of four apartments: one in Medford, two in Maiden, and one in Revere. It also authorized the search of four vehicles. The search was primarily for narcotics and evidence of drug trafficking, but it was also for evidence of the defendant's use of false identities.[1]


At the Medford location, Watertown Police Detective Mark Lewis[2] arrested the defendant. As Detective Lewis arrested the defendant, he observed on the kitchen island two apartment keys with a Gold's Gym membership tag attached.[3] When another detective contacted Gold's Gym and inquired about the membership associated with the gym tag attached to the keys, that detective was informed that the gym tag belonged to Josue Torres.

Officers were aware that the defendant used the alias Josue Torres for "fraudulent documents," including on a New Jersey driver's license with a photograph of the defendant and to rent various apartments subject to the search warrant. The Medford apartment, where the defendant was arrested, was rented under the Torres alias and another woman's name.

Around 6:30 A.M., as Maiden Police Detective Renee Kelley executed the search warrant at one of the Maiden apartments, on the first floor, she was informed by Jennifer Vasquez, an occupant of that apartment, that the defendant had a girlfriend who lived in the same building on the fourth floor. After being


shown a photograph of Maudelyn Cordero, the defendant's girlfriend, Detective Kelley "immediately" recognized her as someone who was "part of the investigation," and knew that one of the target vehicles of the search warrant was registered under her name. Vasquez pointed out the door of Cordero's apartment to several detectives. Cordero's apartment was rented under the same woman's name as the Medford apartment, where the defendant was arrested. The detective had seen the defendant enter the Maiden apartment building previously. A maintenance worker told the detective that he believed Cordero had friends on the first floor. While the officers were in Vasquez's apartment, Vasquez made a phone call to the defendant's wife, identified as someone in the defendant's drug operation, warning her that the search was occurring.

Subsequently, Detective Kelley notified Detective Lewis, who was arresting the defendant, that there might be a fifth apartment connected to the organization under investigation that had not been listed in the search warrant. Detective Lewis informed Detective Kelley that he had observed a set of keys as he was arresting the defendant, and he took custody of the keys. After the keys were transported to the Maiden location, officers knocked and announced their presence, then entered Cordero's apartment with one of the keys. The officers entered the apartment "to secure the property."


As they entered the apartment, Cordero came out of her bedroom. Detective Kelley brought her into the kitchen to explain why they were there. An officer spoke in Spanish to Cordero, which was the language that she felt most comfortable speaking. They explained to Cordero that she could either consent to a search of the apartment, or the officers could get a search warrant for it. The officers told her that, if they had to get a search warrant, she might be held responsible for what they found in the apartment. Around 9 A.M., Cordero signed a consent to search form and a Miranda form. She led the officers to her bedroom, and pointed to a dresser in that bedroom. Inside the dresser were bundles of cash. Cordero also pointed out the closet area, where the officers found drugs inside an electrical panel.

The defendant moved to suppress, inter alia, evidence found during the warrantless search of Cordero's apartment. At the hearing on the motion to suppress, Cordero testified that she fully understood the officers, that she was not threatened by the officers, and that they were "correct and respectful." She stated that she wanted them to search the apartment, and that the officers' statements that she may be held responsible for anything found in the apartment were they to get a search warrant did "[n]ot exactly" influence her decision to allow them to search "[b]ecause in [her] home, there was nothing for [her]


not to allow them to search." The motion judge denied the defendant's motion to suppress, crediting Cordero's testimony. A single justice of the Supreme Judicial Court allowed this interlocutory appeal.

2. Standard of review.

"When reviewing the denial of a motion to suppress, we accept the motion judge's findings of fact absent clear error, but independently review the judge's ultimate finding and conclusions of law." Commonwealth v. Tejada, 484 Mass. 1, 7, cert, denied, 141 S.Ct. 441 (2020) . Accord Commonwealth v. Dennis, 96 Mass.App.Ct. 528, 529 (2019).

3. Probable cause to enter and secure the apartment.

a. Standard for entry.

Because the officers entered Cordero's apartment prior to requesting her consent, we must first consider whether the police properly entered the apartment in the first place. "[A]11 warrantless entries into a home are presumptively unreasonable." Commonwealth v. Alexis, 481 Mass. 91, 97 (2018). One exception to that general principle is that, under certain circumstances, police may enter a home to secure it while they apply for a search warrant. See Commonwealth v. DeJesus, 439 Mass. 616, 621 (2003). "[T]here is a fundamental difference between securing or controlling the perimeter of a dwelling from the outside and the entry and physical surveillance of a dwelling from the inside."


Commonwealth v. Owens, 480 Mass. 1034, 1035-1036 (2018), quoting DeJesus, supra. "We consider first whether the officers in the instant case had probable cause to believe that there was evidence of illegal [activity] in the apartment, and then whether they had specific information to support an objectively reasonable belief that evidence of the illegal activity would be removed or destroyed unless the police entered and secured the apartment prior to seeking a warrant." Commonwealth v. Streeter, 71 Mass.App.Ct. 430, 436 (2008). See DeJesus, supra ("We now hold that police officers who secure a dwelling while a warrant is being sought in order to prevent destruction or removal of evidence may not enter that dwelling, in the absence of specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken"). See also Commonwealth v. Arias, 481 Mass. 604, 615 (2019) ("when probable cause exists to believe that a crime has occurred, is occurring, or will occur imminently, warrantless entry is justified only if exigent circumstances also are present").

b. Probable cause.

"In determining whether probable cause exists, 'we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act.'" Commonwealth v. Guastucci, 486 Mass. 22, 26 (2020),


quoting Commonwealth v. Hason, 387 Mass. 169, 174 (1982). "[T]he probable cause inquiry is 'not a high bar.'" Guastucci, supra, quoting District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018). "Probable cause means a 'substantial basis' to conclude that 'the items sought...

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