|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Sanchez, 1998 WL 181811 (
MEMORANDUM AND
ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS
E. SUSAN GARSH, Justice of the Superior Court.
The defendants, Alma Patricia Bojorquez
("Bojorquez") and Manual Sanchez ("Sanchez"), are charged
with trafficking in marihuana and conspiracy to traffick in marihuana. They seek to suppress evidence found during a
search of a sealed package at a United Parcel Services ("UPS")
facility as well as other evidence found and statements made in connection with
the arrest of Bojorquez following the search and seizure of that package. (FN1)
For the reasons set forth below, the motions to suppress are denied.
FINDINGS OF FACT
After an
evidentiary hearing and evaluation of the credibility of all the witnesses, and
based on all the credible evidence and reasonable inferences drawn from that
evidence, the court finds the following facts:
On
Saturday morning, September 27, 1997, four police officers from the Watertown
and Waltham police departments working as part of the Suburban Middlesex County
Police Drug Task Force ("Task Force")‑‑K‑9 Officer
Joseph Juno, Jr. ("Juno"),
Detective Joseph Deignan ("Deignan"), Detective Barry Ward
("Ward"), and Detective Joseph Connors ("Connors")‑‑along
with Barron, a certified police narcotics detection dog, were present at the
UPS facility in
The Task
Force's presence at UPS was authorized by UPS.
Spurred by the fact that UPS had from time to time contacted the
Watertown Police Department to report that it had found illegal drugs in
packages being shipped (FN2) and by anecdotal information, gleaned in August of
1997 from several UPS drivers, while Deignan was assigned to strike detail,
that air shipments were a common means of transporting large amounts of
marihuana within state and interstate, Deignan initiated a meeting between
himself and UPS management. At this
meeting, Deignan requested that UPS assist the Task Force in its drug
interdiction efforts by permitting members of the Task Force to be present at
the central facility in Watertown while packages from overnight air shipments
were off‑loaded and rerouted into delivery trucks. UPS agreed.
For UPS,
time was of the essence; UPS advised
Deignan that the Task Force would have to complete its work within the
approximately thirty minutes that generally lapsed from the time the truck
arrived from the airport with 400 to 500 packages at about 8:30 AM to the time
that the delivery trucks left the Watertown facility so that those trucks could
complete their deliveries by UPS's noontime deadline. There is no credible evidence as to the
specific details, if any, of the arrangement worked out between UPS and the
Task Force as to how the operation at UPS was to be conducted. (FN3)
UPS also agreed to permit a member of the Task Force to borrow a UPS
uniform and UPS truck for the purpose of delivering any package found to
contain contraband.
On the
morning in question, Deignan was the first member of the Task Force to arrive
at the UPS facility. He spoke with John
J. Butkuss, Jr. ("Butkuss"),
the UPS air‑freight supervisor whose job duties include processing the
overnight mail packages for Saturday delivery.
This was the same UPS employee with whom Deignan had interacted on the
Task Force's previous visits to UPS.
Butkuss was also the employee whom Deignan had contacted to pre‑arrange
the days on which the Task Force would be present at UPS. When Deignan met with Butkuss, he reminded
him that there would be four police officers at the UPS facility that day plus
a trained dog. Deignan did not tell
Butkuss what type of packages to look for, ask Butkuss to profile packages,
seek Butkuss' assistance in profiling packages, nor ask Butkuss to select and
set aside packages that he would recognize as consistent with the shipment of
illegal drugs. Additionally, Deignan did
not tell Butkuss that if he came upon a package that he believed contained
drugs, he should decide whether or not to open it as if the police were not
present. He did not tell Butkuss that
the judgment call as to whether a package could be opened was to be entirely
that of Butkuss and that the Task Force was to have nothing to do with his
decision to open a package. Deignan did
not tell Butkuss to pretend that the police were not there and to decide to open
a package only if he believed it contained drugs and not because of anything
that may be said by the police. Deignan
did not tell Butkuss that no package would be opened until Butkuss personally
opened it or authorized it to be opened.
Not only did Deignan not have such a conversation with Butkuss on
September 27, 1997, but he also did not have such a conversation with Butkuss
on any previous occasion. (FN4) Butkuss did not volunteer to profile packages
for the Task Force.
Butkuss'
sole concern was that the Task Force not interfere with his operation. When the Task Force first came to UPS,
Butkuss told the officers that they must conduct their operations in such a way
that it would not interfere with his responsibility to get the packages out and
he, in turn, would stay out of their way.
His function was to ensure that packages coming off the truck onto the
moving conveyer belt were dispatched promptly into the correct delivery
trucks. Butkuss performed his function
by walking up and down next to the length of the moving belt.
On September
27, 1997, a truck arrived at the UPS facility from the airport with the
overnight mail at about 8:30 AM. Thirty‑two
UPS drivers with their trucks were lined up next to the moving conveyer
belt. Deignan positioned himself at the
back of the truck from the airport; two
UPS employees were on the truck off‑loading packages onto the moving
conveyer belt. As the packages were
placed on the belt, they were sniffed by Barron. Juno was walking with Barron on the back
belt, a stationary belt that is six to eight inches away from and parallel to
the moving belt. Most of the packages
were placed by the UPS employees onto the moving conveyer belt where they were
sniffed by Barron. Some packages,
however, were held aside by Deignan because they matched some aspect of a
police profile for packages likely to contain controlled substances. These packages were not placed on the moving
belt; instead, Deignan handed them
directly to one of the other officers who put the packages on the back belt.
Barron
reacted positively to two packages on the moving belt. One of the officers removed them to the back
belt. That morning, members of the Task
Force placed a total of eight to ten packages on the back belt. No packages were put there by Butkuss. (FN5)
Butkuss did not touch any of the packages removed to the back belt; he did not select them for removal to the
back belt or suggest that they be put on the back belt, and he did not
authorize their removal to the back belt.
Butkuss did not participate in any way in the profiling of the packages
coming off the truck onto the moving conveyer belt.
The police
opened all the packages removed to the back belt even though Barron had reacted
positively to only two of them. Those
two contained marihuana; the others did
not. As was true on the previous weeks,
Butkuss did not open any of the packages, nor did he ask the police to open any
of the packages, or authorize the police to open any of the packages.
Barron had
reacted to the package in question almost immediately after it had been placed
on the moving belt at approximately 8:45 AM.
Barron is a dog specially trained to react to marihuana and other
controlled substances. By September of
1997, Barron had successfully completed several weeks of formal training in
narcotics detection as well as informal training. Juno, who trained with Barron, had frequently
used Barron in package detection. The
dog is reliable. The manner in which
Barron reacted to the box signaled to Juno that the dog had detected a
controlled substance.
After
Barron's reaction, the package was removed to the back belt where Ward opened
it using a cutting blade knife. Connors
assisted by holding the box. Before it
was opened, no police officer sought Butkuss' authority or permission to open
the package, and he did not grant permission.
Butkuss had no conversation with any of the officers about the opening
of the box. (FN6) From the moment the package was placed on the
back belt, it was under the exclusive domain of the Task Force.
The box
met the profile for a package likely to contain marihuana because it was
heavily taped at the top and bottom and around all the edges, and the flaps
were glued down. This type of sealing
commonly is used when marihuana is sent through the mail in order to mask the
drug's odor. The box met the profile in
other ways as well. For example, the
delivery and return address were handwritten;
the delivery address was to a hotel;
the return address was Ponoma, California, an area known to the police
as a site from which marihuana is distributed.
Moreover, the package had been shipped from a postal packaging center so
that the sender of the package remained untraceable. The size and weight of the package were
consistent with the shipment of marihuana.
The package
was addressed to Doris McGleen at the Best Western Hotel in Waltham. The Task Force intended to make delivery of
the package if it contained marihuana.
The Task Force also intended to arrest whomever picked up the package
and, if possible, to ascertain to whom that person intended to deliver the
package. The police had no reason to
believe that Bojorquez or Sanchez had any connection to the package.
Based on
his training and some very limited experience, Deignan reasonably believed that
if a UPS package were not delivered by the UPS guaranteed noon deadline, the
person picking up the package would become suspicious and the Task Force
probably would lose the ability to apprehend that individual and others who may
have been involved with the package.
Deignan was not present when Ward opened the box. Before the package was opened, none of the
officers attempted to secure a search warrant or discussed the feasibility of doing
so. They made no conscious decision not
to seek a warrant because of any perceived exigency. The conviction that a warrant was unnecessary
because there was no state action was the reason no warrant was sought on
September 27, 1997. (FN7)
On no
prior occasion in connection with its drug interdiction efforts at UPS had the Task
Force attempted to secure a search and seizure warrant. The Task Force knew before it went to the
facility that if it were to develop probable cause, it would be between 8:30 AM
and 9:00 AM.
When the
package addressed to McGleen was opened, the officers found cellophane wrapped
"bricks" inside which, based upon their training and experience,
reasonably appeared to constitute compressed marihuana. The police repackaged, resealed, and retaped
the package using a box supplied by Butkuss and tape that the police purchased.
Viewing
the totality of the evidence, the search and seizure of the package at issue
constitutes serious, distinctly egregious police misconduct. The search and seizure of the package was
simply one in a series of warrantless searches and seizures spanning several
weeks, many of which involved no probable cause; the police were not acting at the specific
explicit behest of the airfreight supervisor at UPS; they gave no consideration to obtaining a
warrant. I infer that the Task Force
intentionally and unlawfully searched and seized the package for the purpose of
facilitating arrests. At a minimum, the
Task Force acted recklessly.
Deignan,
wearing a UPS driver's uniform borrowed from UPS and driving a UPS truck on
loan from UPS, delivered the package to the Best Western Hotel in Waltham,
leaving it with a clerk at the front desk at 11:00 AM. Other members of the Task Force were inside
the hotel lobby performing surveillance when Deignan arrived. Twenty to thirty minutes later, Bojorquez
walked through the front door of the hotel and approached the front desk. She asked the clerk if there was a package
for Doris McGleen, in Room 302, whom she stated was a friend of hers. The clerk indicated that there was such a
package, but that the name and room number did not match, to which Bojorquez
responded that she was there to pick up the package. The clerk advised Bojorquez that the package
was heavy, asked if she had a car, and inquired whether she wished him to carry
the package out for her. Bojorquez
assented, exited the lobby, retrieved a car, and parked it in front of the
hotel. Bojorquez opened the trunk, and
the desk clerk, who had carried the package out of the hotel, placed it in the
trunk. Bojorquez closed the trunk of the
car; as she attempted to enter the car,
an officer approached, displayed his badge, and placed Bojorquez under
arrest. She was not handcuffed at that
point, but her keys were taken from her, and one of the officers opened the
trunk of the car.
Once the
police apprehended Bojorquez, Deignan was notified, and he and Juno
approached. Inside the trunk were two
packages; the second package looked
identical to the one that had been delivered by Deignan except it was addressed
to a female other than McGleen at a hotel in Dedham. It was separated from the one that had been
opened at UPS; Barron alerted positively
to the second package. Deignan peeled
some of the bottom wrapping back; when
he did so, he saw what, based upon his training and experience, he reasonably
believed to be compressed marijuana.
After
viewing the contents of the second box, Deignan identified himself to Bojorquez
as a police officer with the Watertown Police Department and advised her of her Miranda rights. Bojorquez told Deignan that she understood
her rights. Deignan asked if she were
willing to waive those rights and speak with him; she said that she would. Bojorquez appeared nervous but composed. She did not appear to be under the influence
of alcohol or any narcotic, nor did she appear to be suffering from any mental
illness or impairment. She spoke English
and was capable of understanding her
Miranda warnings. No promises were
made or rewards offered before Bojorquez spoke to Deignan, and no threats were
made to induce her to waive her right to remain silent. I find, beyond a reasonable doubt, that when
she agreed to speak with Deignan, Bojorquez knowingly, willingly and
voluntarily waived her Miranda
rights, and that her statements thereafter were made voluntarily, rationally,
and freely. Bojorquez told Deignan that
she knew that there was marihuana in the boxes, but that she did not know for
whom the boxes in her trunk were destined.
After
talking to Deignan, Bojorquez was placed in handcuffs and taken to the Waltham
Police Department. The two boxes were
also taken to the Waltham Police Department.
When Bojorquez was arrested, she was in possession of a digital pager; Deignan noted several two and three digit
pages, not identifiable telephone numbers, coming into the display screen of
the pager. The use of two and three
digit numbers is consistent with the sending of coded messages.
At the
police station, Bojorquez again was read her
Miranda rights. She acknowledged
understanding each of her rights and signed a form to that effect. Although upset, and crying from time to time,
Bojorquez understood her rights and voluntarily agreed once again to speak with
the police and to cooperate. She
responded rationally and intelligibly.
She provided some information in response to questions, but she declined
to disclose the name of the person who had picked her up at the airport when
she arrived in Boston, the name of the person to whom she was to deliver the
marihuana, or the details of her financial arrangements for delivering packages
of marijuana sent into Massachusetts from California. The conversation was in English. An officer told her that the situation she
found herself in was not a "good one," and, that if she cooperated,
it would be noted with the District Attorney, but he made no promises and did
not threaten Bojorquez. I find, beyond a
reasonable doubt, that Bojorquez knowingly, willingly, and voluntarily waived
her Miranda rights at the police
station and that her statements thereafter were made voluntarily, rationally,
and freely.
Bojorquez
agreed to cooperate with the police by telling the individual who had paged her
that her car had been towed to Waltham Auto Body. In the presence of three officers, one of
whom was Spanish‑speaking, Bojorquez had a conversation in Spanish with
an unknown individual. Following that
conversation, the vehicle she had been driving was taken to Waltham Auto Body,
and the two boxes that had been taken from that vehicle were placed back into
the trunk.
At 5:30
PM, Sanchez and another male arrived at Waltham Auto Body where they approached
an officer, who was posing there as a mechanic.
They engaged him in conversation about the status of the vehicle. After being told that the disabled car could
not be left on the street overnight, the two sought and obtained permission to
retrieve belongings from inside the vehicle and the trunk by representing
themselves to be very good friends of the driver. Once the officer opened the truck, each of
the men grabbed a box, walked to their vehicle, and put the two boxes into the
trunk of that car. Both men then were
arrested.
Bojorquez
did not have a legitimate expectation of privacy in the package while it was at
UPS. Sanchez did not have a legitimate
expectation of privacy in the package while it was at UPS.
RULINGS OF LAW
Where
police have conducted a warrantless search and seizure, the Commonwealth has
the burden of proving that it falls within a permissible exception to the
warrant requirement and is therefore reasonable. Commonwealth v. Berry, 420
Mass. 95, 105‑106, 648 N.E.2d 732 (1995).
However, that burden attaches only after the defendant has demonstrated
that a search and seizure in the constitutional sense has occurred. Id.
at 105, 648 N.E.2d 732; see also Commonwealth v. McCambridge, 44
Mass.App.Ct. 285, 289, 690 N.E.2d 470 (1998).
A search is not protected by the Fourth Amendment or article 14 of the
Massachusetts Declaration of Rights if it is conducted by a private freight
company which is not acting as an agent of the police. United States v. Jacobsen,
466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Commonwealth v. Varney, 391
Mass. 34, 38, 461 N.E.2d 177 (1984).
Because
the court credits the testimony of the UPS supervisor that the police opened
the box addressed to Doris McGleen without any input from him, the
Commonwealth's position that the search was conducted by a private party, and
thus falls outside the scope of the Fourth Amendment and article 14, is
rejected. If police open containers sent
by mail or private carrier, the requirements of the Fourth Amendment must be
satisfied. Jacobson, 466 U.S. at 114. Even if Butkuss' testimony were not to be
credited, the Task Force operation at UPS hardly could be characterized as
"hands‑off." (FN8)
I.
Probable Cause to Search and Exigent Circumstances
Once a
reliable, well‑trained narcotics detection dog affirmatively reacted to
the box in a way that his handler understood to indicate the presence of
contraband, probable cause was established.
E.g., Florida v. Royer, 460
U.S. 491, 506, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Probable cause alone does not justify a
warrantless search in the absence of exigent circumstances. The burden is on the Commonwealth to
demonstrate exigency. Commonwealth v. Huffman, 385 Mass. 122,
124, 430 N.E.2d 1190 (1982). The
Commonwealth must show that it was impracticable for police to have obtained a
warrant.
Id. at 124, 430 N.E.2d 1190.
While it
is true, as defendants argue, that there was no danger of evidence being
removed or destroyed while the police sought a warrant, (FN9) the concept of
exigency is broad enough to encompass those situations where obtaining a
warrant is impracticable because it would thwart an arrest. Where police have probable cause to believe a
shipped package contains drugs, but delaying the delivery in order to obtain a
warrant to seize would alert the suspects to police involvement and frustrate
their apprehension, an exigency may exist justifying seizure without a warrant.
United States v. Ford, 525 F.2d 1308, 1313 (10th Cir.1975) (exigency
where package seized after private inspection had to be shipped from Oklahoma
City to California in timely fashion or subject would have become suspicious
and avoided arrest). See also United States v. De La Fuente, 548 F.2d
528, 539, n. 14 (1977). However, the
failure of the police to obtain a warrant to seize can only be excused where
"the circumstances at the time of the seizure were sufficiently exigent to
make their course of action imperative." Ford, 525 F.2d at
1313. Where probable cause has been
established, even assuming some exigency exists justifying seizure, a
warrantless search is not automatically permissible. If, at that point, the property is in the
control of the police, neutralizing the threat of destruction of evidence, and
no demanding circumstances justify an immediate search, "the Fourth
Amendment mandates the intervention of a detached Magistrate and the issuance
of a warrant before there occurs a further intrusion on an individual's privacy
interests." People v. Adler, 50 N.Y.2d 730, 431
N.Y.S.2d 412, 409 N.E.2d 888, 890‑891 (N.Y.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980).
The time
when probable cause arose has an obvious bearing upon whether exigent
circumstances existed when the search was carried out. In
Commonwealth v. Wigfall, 32 Mass.App.Ct. 582, 586‑587, 595 N.E.2d
327, rev. denied, 413 Mass. 1104, 598
N.E.2d 1133 (1992), for example, because there were three hours between the
time that probable cause to arrest arose and the time of the warrantless entry
and search, the police had no "justifiable excuse why it was impracticable
for them to obtain a warrant."
Compare Commonwealth v. Minh Ngo,
14 Mass.App.Ct. 339, 340‑342, 439 N.E.2d 839, rev. denied, 387 Mass. 1103, 441 N.E.2d 260 (1982) (two hours not
enough time to obtain warrant) with
Commonwealth v. Forde, 367 Mass. 798, 802, 329 N.E.2d 717 (1975) (failure
of the Commonwealth to explain why no effort was made to obtain a warrant in
three hours is fatal to claim of exigency).
Barron
alerted to the box three hours and fifteen minutes prior to the noon delivery
deadline. The Commonwealth did not
persuasively demonstrate that this was insufficient time to obtain a warrant
and make delivery of the package in Waltham.
An on‑call judge residing in the region where the UPS facility is
located is available at all hours on Saturdays to review warrant applications
and can be reached by beeper or telephone.
The ability to borrow a UPS truck and uniform had already been pre‑authorized
by UPS. The failure of the officers to
discuss whether there was time to obtain a warrant and the Task Force's failure
on all past occasions to have attempted to obtain a warrant to search or seize
a box at UPS undercuts the notion that there were exigent circumstances. Moreover, at the hearing, the Commonwealth's
witnesses did not offer the impracticability of securing a warrant as the
actual explanation for their failure to have sought a warrant on September 27,
1997.
In sum,
the Commonwealth did not meet its burden of establishing an exigency which
would justify the warrantless search and seizure of the package at UPS. A defendant with standing to challenge the
search and seizure would be entitled to suppression of the evidence obtained
from a search of both boxes as well as the statements made by Bojorquez, all of
which are the fruit of the search and seizure at UPS. (FN10)
II. Standing
A.
Legitimate Expectation of Privacy
A
defendant generally can challenge an unreasonable search and seizure only if
the defendant has a subjective expectation of privacy in the place searched or
the item seized and society recognizes that expectation as reasonable.
California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d
210 (1986); Commonwealth v. Price, 408 Mass. 668,
672, 562 N.E.2d 1355 (1990). The burden
is on the defendants to demonstrate that they had a legitimate expectation of
privacy.
Commonwealth v. D'Onofrio, 396 Mass. 711, 714‑715, 488 N.E.2d
410 (1986); Commonwealth v. Brass, 42 Mass.App.Ct.
88, 89, 674 N.E.2d 1326, cert. denied,
424 Mass. 1108, 679 N.E.2d 558 (1997).
Mail is
subject to Fourth Amendment protection because "[l]etters and other sealed
packages are in the general class of effects in which the public at large has a
legitimate expectation of privacy...." Jacobsen, 466 U.S. at 114. See also
Commonwealth v. Garcia, 34 Mass.App.Ct. 386, 393, 612 N.E.2d 674 (1993)
(receipt of letters and packages is inherently private). The addressee and the sender of a package
each has the requisite privacy interest to contest a search or seizure. See, e.g.,
Varney, 391 Mass. at 38, 461 N.E.2d 177 (addressee has privacy interest in
package's contents); United States v. Villarreal, 963 F.2d
770, 774 (5th Cir.1992) (senders and addressees have standing to object to
search en route); State v. Pohle, 160 N.J.Super. 576, 390
A.2d 692, 696‑697 (N.J.1978), rev'd
on other grounds, 166 N.J.Super. 504, 400 A.2d 109 (1979) (addressee and co‑defendant
whose address is on package both have standing). If the consignee is a fictitious person, an
individual who shows that the package was addressed to him, although under a
fictitious name, might also have a reasonable expectation of privacy.
Villarreal, 963 F.2d at 774 ‑775 (co‑conspirators both
have standing where one had receipt indicating ownership that bore the name
Roland Martin and the other had been identified as Roland Martin; neither denied their possessory interest and
they consistently acted as if they were the ones who were to receive
transported materials). See also United States v. Pierce, 959 F.2d 1297,
1303 n. 11 (5th Cir.) cert. denied,
506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992) (distinguishing between
packages addressed to the alter ego of a defendant and those addressed to an
individual other than the defendant).
The
addressee is presumed to be the true owner unless there is evidence to the
contrary showing that the defendant had a legitimate privacy interest in the
package at the time of the search. United States v. Smith, 39 F.3d 1143,
1144 (11th Cir.1994) (letter not addressed to defendant and his equivocal
testimony that it was really intended for him insufficient to establish
standing); United States v. Koenig, 856 F.2d 843, 846
(7th Cir.1988) (defendant lacks standing if he is neither sender nor addressee
and does not assert any ownership interest in the drugs in transit);
United States v. Givens, 733 F.2d 339, 341‑342 (4th Cir.1984)
(no reasonable expectation of privacy in package addressed to another actual
person even if defendant is intended recipient); State v. Christel, 61
Wis.2d 143, 211 N.W.2d 801, 808 (Wisc.1973) (in the absence of testimony from
defendants at suppression hearing, list inside package containing their first
names is insufficient to overcome presumption that addressee is owner), overruled on other grounds, State v.
Poellinger, 153 Wis.2d 493, 451 N.W.2d 752, 756‑757 (1990). Cf. State v. Kosta, 304 Or. 549, 748 P.2d 72,
75 n. 2. (Or.1987) (testimony during
suppression hearing that A, to whom package was delivered, was told by B, to
whom he had intended to deliver package, that defendant C, who was coming to
pick up the package, was going to "end up with it" is insufficient to
establish C's protectable interest under state constitution).
Bojorquez
and Sanchez did not satisfy their burden of demonstrating a protectable privacy
interest in the package opened and seized at UPS. There is no evidence that would suggest
either defendant mailed the package, and they were not the addressee. There is no evidence that Doris McGleen is a
fictitious person and the alter ego of Alma Bojorquez. The mere fact that Bojorquez presented herself
at a hotel, was permitted by the hotel clerk to take the package, and knew that
the package contained marihuana is insufficient to meet her burden of
demonstrating a possessory, proprietary, or other protectable privacy interest
in the package while it was in transit.
When Sanchez retrieved the package, he, like Bojorquez, represented that
he was acting on behalf of a friend.
There is no evidence that Sanchez is the person with whom Bojorquez
communicated when she spoke to someone by telephone at the police station. There is no evidence that he had pre‑paid
for the marihuana. The mere fact that
Sanchez took possession of the package with another man is insufficient to meet
his burden of establishing a protectable privacy interest in the package when
it was at UPS. The defendants chose not
to testify at the hearing, and the affidavits filed in support of the
suppression motions assert no privacy interest whatsoever in the package
searched and seized at UPS. Without
more, Bojorquez's "alleged status as an intended recipient ... is simply
not sufficient to confer upon [the defendants] a legitimate expectation of
privacy in the contents of a package sent through an independent carrier and
addressed to someone other than [the defendants]." New Hampshire v. Alosa, 137
N.H. 33, 623 A.2d 218, 222 (1993).
B. Automatic Standing
In order
to avoid forcing a defendant to choose between admitting to facts that
demonstrate a privacy interest in order to demonstrate standing at the
suppression hearing or not testifying and, therefore, not making incriminating
statements, Massachusetts has adopted automatic standing as a matter of state
constitutional law. Commonwealth v. Amendola, 406 Mass. 592,
601, 550 N.E.2d 121 (1990). "When a
defendant is charged with a crime in which possession of the seized evidence at the time of the contested search is
an essential element of guilt, the defendant shall be deemed to have standing
to contest the legality of the search and seizure of that evidence." Id.
at 601, 550 N.E.2d 121 (emphasis added).
In Commonwealth v. Frazier,
410 Mass. 235, 571 N.E.2d 1356 (1991), the Court reiterated that the concept of
automatic standing is not broad enough to confer standing to challenge an
allegedly illegal search and seizure on anyone charged with possession as a
result of the search. "The
dispositive issue in determining whether a defendant has automatic standing is
whether 'possession of the seized evidence at the time of the contested search
is an essential element of guilt.' " Id. at 243, 571 N.E.2d 1356, quoting Amendola, 406 Mass. at 601, 550 N.E.2d
121. When the Court in Frazier extended the automatic standing
rule beyond the limit of a house and automobile search to the search of a co‑defendant's
handbag, it reasoned that the fact that the defendant did not have actual
possession of the seized item at the time of the search and was not present
during the search did not preclude him from having automatic standing because
he had been charged with constructively possessing the drugs found in the
handbag at the time of the search. Id. at 243‑245, 571 N.E.2d 1356.
Where,
however, the search takes place out of the presence of the defendant on
territory where the defendant had no right to be, and where a third party is
not a confederate in the commission of the crime, the automatic standing rule
does not eliminate the requirement to show a legitimate expectation of privacy.
Commonwealth v. Carter 424 Mass. 409, 411‑412, 676 N.E.2d 841
(1997). Neither Sanchez nor Bojorquez
had a right to be in the UPS facility, and they were not present during the
search. Neither UPS nor any of its
employees is alleged to be a joint venturer.
Therefore, the defendants must demonstrate that a constitutionally
protected search occurred. Id.
To do so, they must produce evidence that the police intruded on a
reasonable expectation of privacy. Id.
The defendants had no expectation of privacy in the UPS facility and so
must demonstrate a legitimate expectation of privacy in the package
itself. As discussed above, they failed
to meet their burden of establishing a reasonable expectation of privacy in the
package while it was in transit.
Furthermore,
possession of the box searched at UPS is not an essential element of the crimes
with which the defendants are charged.
Possession is not an essential element of the conspiracy charge.
Frazier, 410 Mass. at 245‑246, 571 N.E.2d 1356. The offense of trafficking in marihuana, the
other charge made against the defendants, can be committed in any of three
ways: (1) knowingly or intentionally
manufacturing, distributing, dispensing, or cultivating marihuana; (2) possessing with intent to manufacture,
distribute, dispense, or cultivate marihuana;
and, (3) bringing marihuana into the commonwealth. G.L. c. 94C, § 32E(a). "[P]ossession is an essential element in
two of the three categories of activities prohibited by the statute...."
Fraizer, 410 Mass. at 245, 571 N.E.2d 1356 (analyzing the
substantially identical provision of the statute prohibiting trafficking in a
class B controlled substance). The first
two categories are the ones for which possession is an element.
Fraizer, 410 Mass. at 245, 571 N.E.2d 1356; Commonwealth v. Perry, 391
Mass. 808, 813‑814, 464 N.E.2d 389 (1984), citing Commonwealth v. Gagnon, 387 Mass. 768, 769, 443 N.E.2d 407 (1982),cert. denied, 464 U.S. 815, 104 S.Ct.
70, 78 L.Ed.2d 84 (1983) (crime of possession is a lesser included offense of
the crime of manufacturing, dispensing or distributing a controlled substance);
Commonwealth v. Manrique, 31 Mass.App.Ct. 597, 604, 581 N.E.2d 1036
(1991), cert. denied, 411 Mass. 1106,
587 N.E.2d 790 (1992) (elements of the third prong of trafficking are the
bringing into the Commonwealth of a controlled substance from some place
outside and the defendant's participation in some manner in the act of
importing).
The first category
of trafficking is not at issue here.
Possession is not an essential element of the third category. With respect to the second category, the
facts charged by the Commonwealth and the representations made by the
Commonwealth at the hearing and in its post‑hearing memorandum,
representations on which the defendants are entitled to rely, make it clear
that the defendants are not charged with constructive possession of the box at
the time of its search at UPS. The possession
alleged in connection with the second prong of trafficking arose, if at all,
when the hotel clerk put the box into the trunk of the vehicle operated by
Bojorquez. Thus, the Commonwealth is not
advancing contradictory positions in charging trafficking and opposing the
defendants' standing to challenge the search and seizure of the package at UPS.
C. Target Standing
"Target
standing" is a theory designed to permit a defendant to contest the search
of a third person where police violate the constitutional rights of the
"little fish" with the intent to catch a "big fish."
Commonwealth v. Manning, 406 Mass. 425, 429, 548 N.E.2d 1223 (1990)
(target standing not appropriate where challenged conduct merely produced
information used to justify issuance of search warrant and no intentional
wrongdoing). The defendants urge that
the circumstances of this case warrant the adoption of target standing.
The United
States Supreme Court rejected target standing. United States v. Payner,
447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). "Our Fourth Amendment decisions have
established beyond any doubt that the interest in deterring illegal searches
does not justify the exclusion of tainted evidence at the instance of a party
who was not the victim of the challenged practices." Id. at 735, citing Rakas v. Illinois, 439 U.S. 128, 137,
99 S.Ct. 421, 58 L.Ed.2d 387 (1978). See
also Alosa, 623 A.2d at 221‑222;
State v. Benjamin, 417 N.W.2d 838, 840 (N.D.1988).
The
Supreme Judicial Court has not recognized target standing. Commonwealth v. Scardamaglia,
410 Mass. 375, 379, 573 N.E.2d 5 (1991) (no tangible evidence seized in
allegedly unlawful stop and no significantly improper conduct because question
of probable cause was a close one). The
Supreme Judicial Court also has not rejected target standing. "[S]erious, distinctly egregious police
misconduct ... might justify granting
the defendant the right (under the 'target standing' theory) to challenge the
allegedly unlawful search." Commonwealth v. Waters, 420 Mass. 276,
278, 649 N.E.2d 724 (1995) (emphasis added).
Here, the
Task Force had the right to be at UPS, and it had probable cause to search and
seize the box addressed to McGleen. What
makes the unlawful search and seizure of that box serious and distinctly
egregious is not the lack of exigency, in and of itself, but the fact that a
belief that it would have been impracticable to obtain a warrant was not the
reason that a warrant was not sought and that the opening of this box was not
an isolated matter. It was but one in a
series of searches spanning several weeks in which the warrant requirement was
routinely disregarded and numerous packages were opened without probable cause.
The
defendants contend in their post‑hearing memorandum that, given these
facts, this court is "left with the task of devising a remedy to punish
the conduct [of the Task Force] in the investigation and courtroom
testimony." They maintain that
granting them target standing would be an appropriate punishment. For the reasons articulated by the Supreme
Court in Payne, this court declines
to adopt target standing as a matter of state constitutional law. I do not assume that improper conduct,
"if brought to the attention of responsible officials, would not be dealt
with appropriately. (FN11) To require in addition the suppression of
highly probative evidence in a trial against a third party would penalize
society unnecessarily." Payne, 447 U.S. at 733‑734 n. 5.
ORDER
For the
reasons set forth above, it is hereby
ORDERED that the defendants' motions to suppress evidence be and hereby are DENIED.
(FN1.) Following the evidentiary hearing, both
defendants withdrew their contention that the search of a second sealed box in
the trunk of Bojorquez's car following her arrest is independently invalid. In addition, Bojorquez withdrew her argument
that she had not been givenMiranda
warnings prior to making statements to the police or that, even if her rights
had been explained to her, any statements by her had not been made
voluntarily. The defendants do argue that
the results of the second search as well as the statements must be suppressed
as fruits of the first search and seizure.
(FN2.)
The UPS supervisor who testified stated that he only opened packages that were
damaged or leaking; he did not know
whether UPS's agreement with its customers would have permitted him to open
packages that were not damaged, but he assumed that he did not have carte
blanche to open undamaged packages.
(FN3.)
Deignan testified that UPS required him to agree that only a UPS airfreight
supervisor or someone from its Loss Prevention Department could make the
decision whether to open a package and that he so agreed. I have grave doubts as to the truthfulness of
other parts of Deignan's testimony and, thus, without corroboration from UPS, I
am unwilling to credit his testimony as to the role UPS offered to play when
the Task Force was on its site. No one
from UPS management advised the airfreight supervisor of the critical
responsibility he allegedly had when the Task Force was present at UPS. If it were to be assumed that the arrangement
between Deignan and the UPS did require one of its employees to decide whether
a particular box could be opened, the Task Force did not comply with the express
terms of that arrangement and exceeded the scope of its authorization from UPS.
(FN4.)
I find Deignan's testimony to the contrary to be untrue. I find Butkuss' testimony that he did not
have such a conversation with Deignan on September 27, 1997, or at any other
time, to ring true. Butkuss, a witness
called by the Commonwealth, appeared to be utterly frank and forthright with no
motive to prevaricate. If Butkuss were
to be profiling the boxes and making decisions as to what boxes should be
opened as if the Task Force were not present, there would have been no reason
to have the police dog at the UPS facility sniffing packages, no reason for
Juno to be interpreting the dog's actions for Butkuss as he said he did, no
reason for Deignan to be in the truck inspecting the packages before they were
off‑loaded, and no reason for both Task Force officers and UPS to be
profiling, as Deignan said they were. If
Butkuss were to perform all the duties Deignan claims to have outlined for him,
undoubtedly one of his superiors at UPS would have so advised him, but Butkuss
was never authorized by anyone at UPS to profile and open undamaged
packages. Indeed, it would have been
difficult for Butkuss to perform his job responsibilities‑‑making
sure that all the packages were loaded on the right delivery trucks quickly so
that the packages could be delivered by noon‑‑if he were
simultaneously responsible for profiling packages and making individualized
decisions as to which packages, if any, should be opened. For example, due to the length of the belt,
at times Butkuss was up to eighty feet away from Deignan and the other members
of the Task Force.
(FN5.)
The testimony to the contrary is not credible.
(FN6.) I do not believe the testimony of Ward
and Connors that Butkuss said words to the effect, "While I check these
other packages to save time, can you open the package for me?" or "Go
ahead, I give you permission to open the box." I find the testimony of Butkuss, which
directly contradicts that of the officers, to be more credible.
(FN7.) In unrelated matters, it has taken
Deignan four hours to obtain a search warrant on a Saturday; here, large portions of the affidavit could
have been drafted beforehand. In any
event, a belief that no warrant was needed, and not any practical difficulty
with obtaining a warrant, motivated the Task Force not to seek one.
(FN8.) See generally United States v. Kelly, 529 F.2d 1365, 1371 (8th Cir.1976)
(consent by UPS to a search by the FBI does not satisfy the requirements of the
Fourth Amendment); Commonwealth v. Dembo, 451 Pa. 1, 301
A.2d 689, 693‑695 (Pa.1973).
(FN9.) Of course, the box could have been
secured pending an application for a warrant to search and seize.
United States v. Van Leeuwen, 397 U.S. 249, 252‑253, 90 S.Ct.
1029, 25 L.Ed.2d 282 (1970) (upholding detention of mail while search warrant
could be obtained).
(FN10.) The Commonwealth argues that even if
the defendants have standing to challenge the illegality of the search and
seizure, suppression would not be mandated.
That contention is based on the erroneous assumption that the police had
evidence independent of the illegal search and seizure which supplied the
probable cause to arrest Bojorquez and to search and seize the two boxes in
connection with her arrest.
"Evidence which may have been unlawfully seized does not ...
automatically become sacred and inaccessible.... Instead the apt question in such a case is
whether granting the establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the
primary taint." Commonwealth v. Frodyma, 393 Mass. 438,
441, 471 N.E.2d 1298 (1984) (citations omitted). Evidence is not fruit of the poisonous tree
if it is obtained through an independent source, if the connection between the
improper conduct and the evidence is so attenuated as to dissipate the taint,
or the Commonwealth can demonstrate that the evidence inevitably would have
been discovered by lawful means. Commonwealth v. Fredette, 396 Mass. 455,
459, 486 N.E.2d 1112 (1985). Here, all
the evidence upon which the police relied upon to arrest Bojorquez and seize
further evidence flowed directly from the initial unlawful search and seizure. When Barron reacted to the box, the police
had probable cause to believe that there was contraband in that box, but they
had no probable cause to believe or even to suspect that Bojorquez and Sanchez
were linked to the package. The only way
the defendants came to the attention of the police was through the Task Force's
illegal seizure of the box; it was
delivered by the police, not by UPS, to the hotel. The arrest of Bojorquez and all that flowed
from that arrest is the direct fruit of the illegal search and seizure. Accordingly, the Commonwealth's reliance on Commonwealth v. Weiss, 370 Mass. 416,
348 N.E.2d 787 (1976) is misplaced. In
that case, before illegally searching a locker, the officer had probable cause
based on a private search; there was no
unlawful seizure and delivery of the evidence following the police search. Id.
at 420, 348 N.E.2d 787.
(FN11.) A copy of this decision will be
forwarded to the Chief of the Watertown Police Department, the Chief of the
Waltham Police Department, the District Attorney for Middlesex County, and the
Attorney General.