Petition for Writ of Certiorari — Charros v. Massachusetts

6

handcuffed, placed in a patrol car,

and driven back to his home.

Geraldine and the couple’s

eight year old son were also in the

van. An officer drove them in the van

back to their home. Once inside their

apartment both defendants were

advised of the Miranda warnings and

allowed to examine the search

warrants. Geraldine was permitted to

arrange for a relative to remove their

son from the premises. She was

placed in handcuffs.

Detective Paul Oliveira asked

Michael if he were willing to cooperate

and show them where he kept the

cocaine. He indicated he would, and

he led the officers to a small room

with a roll-top desk from which were

seized a number of items, including a

shoe box that contained a plastic bag

with 244.68 grams of cocaine, eight

small corner bags of cocaine (one was

randomly selected for analysis and

had a net weight of 0.42 grams), a

small corner bag of nonnarcotic white

powder, a bottle of Inositol powder, a

folded paper packet of cocaine (its net

weight was 0.26 grams), several

square pieces of paper, $140 in cash,

an open box of sandwich bags, a

telephone pager, two keys, a triple-

beam balance scale, scissors, a

butter knife, a Harley Davidson

brochure with slash marks on it, and

7

letters and bills addressed to both

defendants.

The officers. used the keys

found in the desk to unlock a

strongbox and a safe in a closet off

the room where the desk was located.

The strongbox contained an envelope

with $10,000 cash, a blue bank bag

with $8,750 cash, and a white plastic

bag containing 28.42 grams of

cocaine. The safe contained a .22

caliber handgun and ammunition.!4!

A waste paper basket under the

desk contained an empty bottle of

Inositol and plastic sandwich bags

with corners cut away. Inositol

powder is frequently used as a

cutting agent to create or stretch a

mixture of cocaine for retail sale.

Sandwich bags are frequently used in

the retail sale of cocaine by placing a

small amount of cocaine in a corner,

tying a knot in the bag close to the

corner holding the drug, then cutting

away the unused portion of the bag -

above the knot, leaving what is

known as a “corner bag” of cocaine.

Corner bags usually contain a one-

half gram mixture of cocaine and sell

for $20 to $25 on the street. Based on

'*! At the conclusion of all the evidence the judge allowed

Michael! Charros's motion for a required finding of not guilty as to

a charge of unlawful possession of a firearm and a charge of

unlawful possession of ammunition concerning these items.

8

opinion testimony, the items seized

from the desk are not consistent with

personal use of cocaine, but are

consistent with items used in the sale

of cocaine.

From the living room, officers

seized a police-band scanner that

was “on” and tuned to one of the New

Bedford police department

frequencies. It was capable of

receiving radio communications on

the frequency used by the narcotics

unit. One purse containing $1,500

cash was seized from the master

bedroom. It contained no

identification papers. The purse

Geraldine had in her possession at

the time she was driven back to the

apartment also was_ seized. It

contained $821 cash.

Michael admitted to Detective

Oliveira that he did not use cocaine,

but had beerselling it for about eight

years. He said he was not a big

dealer, and just sold a little “here and

there” to make some money. He said

that the approximately 250 grams

that he had in the house would last

him about one month. Michael

explained that he kept the money in

the safe, and not in a bank, because

he owed $30,000 in child support. He

also explained that the .22 caliber

handgun and ammunition had

9

belonged to his father, and that his

father recently had passed away.

Both defendants testified.

Michael denied telling Detective

Oliveira that he had been selling

drugs for eight years. He testified that

he told Oliveira that Joe Ryan had

brought the box of drugs to the house

for safekeeping just minutes before

Michael had been arrested, and that

Ryan had been selling drugs for

seven or eight years. Michael testified

that he never sold drugs, and that he

had purchased from Joe Ryan the

two paper folds of cocaine he had on

his person when arrested. He also

denied telling Oliveira that he owed

$30,000 in child support, or that he

even mentioned owing child support.

There had been papers on the roll-top

desk that indicated a claim in excess

of $30,000 had been made against

him for child support, but Geraldine

testified that they had retained a

lawyer and the claim was reduced

significantly.

Geraldine testified that

Michael's father had lived with them

from January, 1997, until his death

in March, 1998. He suffered many

medical complications related to

diabetes. A leg had been amputated,

he was confined to a wheelchair, and

he required dialysis. Michael was his

father’s caretaker during the day, and

10

Geraldine helped out at night by

preparing his meals. Because her

father-in-law was on a “renal diet,”

his food portions, especially meat,

had to be weighed with precision. The

triple-beam scale, which had been

kept in the pantry when he was alive,

was used for this purpose, and no

other. She extended his meals by

sprinkling Inositol over the food. She

would prepare his meals in advance

and set them aside in _ plastic

sandwich bags. After the father died,

the scale was stored in the closet,

and the Inositol and sandwich bags

were stored in the roll-top desk. The

scale had not been used after the

father’s death because she dropped

and broke it when placing it in the

closet. The police removed it from the

closet and placed it on the desk

-during the search of her apartment.

Geraldine also explained uses

for other items that had been offered

by the Commonwealth as

paraphernalia used in the drug trade.

The pager was hers, and was used to

reach Michael at a time when their

child frequently became ill at school.

She testified that she used the butter

knife as a letter opener, and that she

attended to the family bills at the roll-

top desk. The scratches on the Harley

Davidson brochure were the result of

Michael's cutting Harley Davidson

1]

emblems from the brochure and

laminating them onto magnets.

The police scanner belonged to

the father, who had listened to it

constantly until his death. The

father’s monthly pension checks,

which totaled approximately $1,100,

went to his care, and to compensate

Michael for giving up his job to serve

as his father’s caretaker. The $10,000

found in an envelope in the strongbox

was money that the father had saved.

As for the $8,750 in the blue bank

bag, $7,000 were proceeds of two life

insurance policies the father had left

to the defendants, $1,100 was money

Geraldine’s employer' had reimbursed

her for a short term loan she had

made, and the rest was “house

money” Geraldine had put aside.

Geraldine testified that she

made short-term loans to _ her

employer, a trucking company, to

help keep the company operating.

The company was in bankruptcy, and

she used her credit cards to pay for

current company expenses. The

company would then reimburse her

and record the payment on its books

as “toll money.” Her motive for

helping in this manner was to build

up a good personal credit rating

which she could someday use to

obtain a mortgage to purchase a

12

home. She had _ twenty-six credit

cards, all in good standing.

She explained that the $821 in

the purse she had at the time of her

arrest consisted of $800 that was

ready to be used to meet her

employer's needs, and she had taken

$21 from the strongbox just before

they were stopped by police. It was to

have been used to buy supper. The

$1,500 in her purse in the master

bedroom was a reimbursement from

her employer.

When Michael's father died,

Michael became depressed. He

started drinking alcohol to excess,

and he resumed the use of cocaine

after a period of abstention of

approximately four years. This

became a source of marital problems.

Michael obtained his cocaine from

Joe Ryan. Ryan appeared at their

apartment at 5:30 P.M. on August 10,

1998. He had a cardboard box (the

shoe box with the 244.68 grams of

cocaine) which he asked Michael to

hold for him until the next day

because he had “something going

down with the cops.” Michael told

- Ryan he did not want anything to do

with it, but Ryan threatened him.

Ryan placed the box on the roll-top

desk. Ryan also discarded a bag of

trash (containing the empty Inositol

bottle and the sandwich bags with

13 -

corners cut out) in the waste basket

under the roll-top desk.

Michael left the room for a

short time while Ryan used their

telephone. When he returned, Ryan

had the keys to the strongbox and

the safe in his hand. Two weeks

earlier, Ryan had seen Michael

retrieve the keys and open the

strongbox to get money to buy

cocaine. Both Michael and Geraldine

testified they had never seen the

white plastic bag containing 28.42

grams of cocaine that police seized

from the strongbox. Geraldine

testified that when she opened the

strongbox shortly before Ryan arrived

on August 10, to get $20 for supper,

the bag of cocaine was not in the

strongbox.

Michael and his sister, Linda,

both testified about threats that Ryan

had communicated to them in late

winter and spring of 1999 about what

he would do to Michael if Michael

continued to accuse Ryan in court.

Ryan made it known that the source

of his information about Michael's

statements had been Detective

Oliveira.

Commonwealth v. Charros, 443 Mass. at 754-758,

824 N.E.2d at 811-814. [Appendix 3a-9a].

14

REASONS FOR GRANTING THE WRIT

I. The Supreme Judicial Court Of

Massachusetts Has Decided An

Important. Federal Question In A Way

That Conflicts With Relevant Decisions

Of This Court Where, After Finding An

Egregious And Intentional Violation Of

The Principles Set Forth In Michigan v.

Summers, 452 U.S. 692 (1981), The

Court Nevertheless Upheld The Stop And

Search Of The Petitioner On Separate

Grounds That Were Not Supported By

The Record And That The Prosecution

Had Never Raised At Any Stage In The

Proceedings

In this case, the Supreme Judicial Court of

Massachusetts has decided an important federal

question in a way that conflicts with relevant

decisions of this Court. Specifically, the

Massachusetts court correctly held that the police

violated principles set forth in Michigan ov.

Summers, 452 U.S. 692 (1981) by intentionally

delaying their execution of a search warrant until

the defendant had left his home and then

stopping him a considerable distance away.

Notwithstanding the clear violation of the

petitioner's constitutional rights, the state court

upheld the seizure and subsequent search on the

theory that the police had probable cause to

arrest him independent of their stated grounds.

The petitioner contends, however, that although

there was probable cause to search his residence,

the police lacked independent grounds to arrest

him. Further, the prosecution waived that theory

by failing to raise it at any stage of proceedings,

15

including on appeal. By upholding the denial of

his motion to suppress the Supreme Judicial

Court effectively disregarded clearly established

principles of federal constitutional law. The

court's ruling effectively denied the petitioner, and

will deny all similarly’ situated -criminal

defendants, the right to be free from

unreasonable searches and seizures guaranteed

by the Fourth and Fourteenth Amendments to the

United States Constitution. His petition for a writ

of certiorari should be granted.

In this case, the police sought an obtained

a warrant that authorized them to search the

petitioner's residence. The warrant also permitted

them to detain and search all persons present at

the time of its execution. Instead of executing the

warrant upon their arrival, the police intentionally

waited for the petitioner to leave his home and

then followed him as he and his family drove off

in a van. The police stopped the vehicle about a

mile from the house. At that point, they searched

the petitioner, and upon finding two packets of

cocaine in his pocket, they arrested him. They

then returned him to the house where he made a

number of incriminating admissions. Ultimately,

the contraband found on his person and his

admissions linked him to larger amounts of

cocaine found at the house and to other evidence

of drug activity. Prior to trial, the petitioner moved

to suppress the evidence seized during the

warrantless search of his person and the

subsequent admissions. He argued that, while the

police might have had probable cause to believe

that contraband would be found in his residence,

they lacked grounds to stop and search him

without a warrant.

16

In opposing the petitioner's motion to

suppress, the Commonwealth argued that under

principles set forth in Michigan v. Summers,

supra, the police could, pursuant to the search

warrant, lawfully seize him at a remote location

and return him to the scene. The Commonwealth

further argued that the police had the right to

search the defendant's person pursuant to the all

persons present clause of the search warrant. In

denying the petitioner's motion to suppress, the

trial court agreed with the Commonwealth,

holding that Michigan v. Summers, indeed

authorized such a course of action.

The Supreme Judicial Court. of

Massachusetts correctly rejected that theory.

Michigan v. Summers held that “for Fourth

Amendment purposes. . . a warrant to search for

contraband founded on probable cause implicitly

carries with it the limited authority to detain the

occupants of the premises while a proper search

is conducted.” Commonwealth v. Charros, 443

Mass. at 760, 824 N.E.2d at 815. See Michigan v.

Summers, 452 U.S. at 705. This “Court noted

that the detention of a person incident to a search

of his home is but an ‘incremental intrusion on

[his] personal liberty|.}"” Jd. at 761, 824 N.E.2d at

816, quoting Michigan v. Summers, 452 U.S. at

703. However, the Massachusetts court held that

where the police intentionally allowed the

petitioner to drive away and then stopped him “in

spectacular fashion” a mile from his home, “[t)his

was hardly an ‘incremental intrusion’ on personal

liberty, but a significant deprivation of liberty far

beyond what was contemplated in Michigan v.

Summers|.|" Id. “The circumstances of the seizure

of the [petitioner] also had the palpable potential

17

for exploitation by the officers, who otherwise had

no authority to search the van in which [he and

his family] were traveling.” Id. at 761-762, 824

N.E.2d at 816. |

Notwithstanding the constitutional

violation, the Supreme Judicial Court upheld the

search of the petitioner's person, finding that the

search warrant affidavit provided the police with

probable cause to arrest the petitioner.

Commonwealth v. Charros, 443 Mass. at 765, 824

N.E.2d at 818. In doing so, the court appears to

have assumed that a showing of probable cause

for a search warrant necessarily establishes

probable cause to arrest the suspected

perpetrator. However, this Court and the lower

federal courts have noted a distinction, albeit a

subtle one, between the showing required to

establish probable cause to search and the

showing required for an arrest. See Michigan v.

Summers, 452 U.S. at 704; United States v.

Whitner, 219 F.3d 289, 297 (3rd Cir. 2000) (“We

begin by noting the distinction between probable

cause to arrest and probable cause to search.”).

“[W]hile it is true that there is this common

ground for discussing the quantum of evidence

required under the Fourth Amendment’s probable

cause test, it does not follow that probable cause

for arrest and probable cause to search are in all

respects identical. This is clearly not the case.” 2

W. LaFave, Search and Seizure, § 3.1(b), p. 8 (4%

ed. 2004). “The two determinations are measured

by similar objective standards but contain

different inquiries.” Greene v. Reeves, 80 F.3d

_ 1101, 1106 (6th Cir. 1996). “Each requires a

showing of probabilities as to somewhat different

facts and circumstances—a point which is seldom

18

made explicit in the appellate cases.” 2 LaFave,

Search and Seizure, § 3.1(b), pp. 8-9 (4™ ed. |

2004).

To justify. the issuance of a warrant to

search a particular location, the police must

establish that a crime has been committed and

that evidence of a crime will be found in the

location to be searched. United States v. Sokolow,

490 U.S. 1, 7 (1989); Illinois v. Gates, 462 U.S.

213, 238 (1983). To establish probable cause to

arrest, the focus is on the person, or more

specifically, whether the police have reasonably

trustworthy information that the defendant has

committed or is committing an offense. Beck v.

Ohio, 379 U.S. 89, 91 (1964).

As the Supreme Judicial Court correctly

noted, the petitioner conceded that the search

warrant affidavit established probable cause to

search his residence. Commonwealth v. Charros,

443 Mass. at 765, 824 N.E.2d at 818. That

affidavit described information provided by. two

confidential informants, together with some

limited .corroboration of innocuous details. The

petitioner contends, however, that more of a

showing must be made in order to establish

probable cause to arrest. In many of the decisions

of this Court and of lower federal courts the

offense is committed in the presence of the officer,

and the showing of probable cause is clear. See

Illinois v. Caballes, ___ U.S. __, 125 S.Ct. 834,

841 (2005) (police officer had probable cause to

arrest defendant for an offense committed in his

presence); Maryland v. Pringle, 540 U.S. 366, 370

(2003). Where the offense is not alleged to have

been committed in the presence of the police, and

19

especially where the officers rely on information

provided by an unnamed informant, this Court

and the lower courts have generally required

corroboration of some significant details linking

the suspect to the crime in order to establish

probable cause to arrest. See Taylor v. Alabama,

457 U.S. 687, 693 (1982) (police improperly

arrested defendant without probable cause based

on an uncorroborated informant’s tip). See also

Adams v. Williams, 407 U.S. 143, 148-149 (1972)

(police officer had probable cause to arrest

defendant where he corroborated incriminating

details of the informant’s tip); McCray v. Illinois,

386 U.S. 300, -304-305 (1967) (probable cause to

arrest established where informant’s tip was

corroborated by officers’ personal observations of

the petitioner engaging in suspicious activities);

Draper v. United States, 358 U.S. 307, 313 (1959)

(same).

In this case, the police did not have their

informants make controlled purchases, they did

not recover any contraband from the petitioner,

they observed no suspicious activities, and as

noted above, they confirmed only innocuous

details provided by the informants. Contrast

United States v. Watson, 423 U.S. 411, 414-420

(1976) (finding probable cause for arrest based on

information from _ reliable informant that

defendant possessed stolen credit cards where

informant provided one of those cards to the

officers and at a later meeting, alerted them that

defendant had additional cards). The Supreme

Judicial Court stated that the search warrant

established probable cause both to search the

residence and to arrest the defendant, but the

record does not support the court's conclusion as

20

to the latter point. Ultimately, the state court’s

failure to distinguish between probable cause to

search and arrest contradicts principles of federal

law established by this Court. Allowance of

certiorari would clarify the distinction between

probable cause to arrest and probable cause to

search—that is, to make explicit what has been

implicit in decisions of this Court.

The Supreme Judicial Court also ruled

contrary to a second clearly established principle

of federal law. Specifically, in addressing the °

grounds cited by the trial court for denying the

suppression motion, the court found that “‘it is of

no consequence whether the reason assigned by

the judge was accurate” as long as there is some

theory on which the decision can be supported.

Commonwealth v. Charros, 443 Mass. at 765, 824

N.E.2d at 818. In fact, where the reason cited by

the judge was the only reason raised in any

proceeding in the Massachusetts courts, it

certainly is of some consequence where the

Supreme Judicial Court substituted a theory that

had effectively been waived. Specifically, in

opposing the motion to suppress,’ the

Commonwealth never claimed that the police had

probable cause to arrest the petitioner, nor did

the motion judge rely on those grounds in

upholding the search and seizure. In arguing this

case before the Massachusetts appellate couris,

the Commonwealth never raised this theory.

In fact, the police in this case apparently

did not believe they had probable cause to arrest

the petitioner. Contrast Davenpeck v. Alford, __

U.S. __, 125 S.Ct. 588, 593-594 (2005) (police

believed they had grounds to arrest defendant

21

although they ultimately charged him with a

different offense). They did not apply for an arrest

warrant, nor did they claim that they were

arresting him based on probable cause to believe

‘he had committed a crime. They also did not

charge him with any offense based on the

information in the search warrant affidavit,

relying entirely on the contraband found on his

person and in the house.

This Court has held that the government

“may lose its right to raise factual issues of this

sort . . . when it has failed to raise such questions

in a timely fashion during the litigation.” Steagald

v. United States, 451 U.S. 204, 209 (1981). See

United States v. Thompson, 710 F.2d 1500, 1504

(9th Cir.), cert. denied, 464 U.S. 1050 (1984)

(alternate justifications for search waived by

government’s failure to raise them at suppression

hearing); United States v. Sanchez, 689 F.2d 508,

509 n.1 (5th Cir. 1982) (government waived issue

of defendant’s standing to complain of stop and

search by failing to raise it below). See also

Knowles v. Iowa, 525 U.S. 113, 116 n.2 (1998)

(government’s failure to raise argument

constitutes waiver). See generally United States v.

Alwan, 279 F.3d 431, 438-439 (7th Cir. 2002)

(failure to raise particular theory in addressing

motion to suppress evidence constitutes a

waiver); United States v. Wright, 215 F.3d 1020,

1026 (9th Cir. 2000) (same). The petitioner

contends that under principles articulated by this

Court, the Supreme Judicial Court should not

have been permitted to rely on grounds never

raised in any proceeding that neither he nor the

lower court had an opportunity to address. By

deciding this case on an issue that was neither

22

raised nor preserved in any manner and in any

court, the Supreme Judicial Court has clearly

signaled that the waiver rules articulated by this

Court will not be followed. Certiorari is

appropriate in these circumstances.

Finally, although the Supreme Judicial

Court found that the police had violated both the

letter and the spirit of the principles set forth in

Michigan v. Summers, by refusing to apply the

remedy articulated by this Court, the

Massachusetts courts have sent a clear signal

that those principles will not be enforced. The

state court’s rejection of principles articulated by

this Court affected the outcome of the petitioner's

case and will no doubt affect cases of other

similarly situated defendants. For those reasons,

allowance of the writ would be appropriate.

CONCLUSION

For the reasons stated above, the writ

should be -granted and the case set down for

argument.

Respectfully submitted,

Michael Charros,

By his attorney,

DANA ALAN CURHAN

101 Arch Street

Suite 305

Boston, MA 02110

(617) 261-3800

Counsel of Record for the Petitioner

)

APPENDIX TABLE OF CONTENTS

APPENDIX A

Commonwealth v. Charros, 443 Mass.

752, 824 N.E.2d 809 (2005) ......... la

APPENDIX B

Search Warrant And Supporting

SS TREES a pre AE PO 25a

APPENDIX C

Defendants’ Motion To Suppress

Search And Seizure (Without

Warrant) As Well As

Statements Attributed To

Defendant Michael Charros ........ 39a

APPENDIX D

Affidavit Of Counsel In Support Of All

Defendants’ Motions .................. 44a

APPENDIX E

Affidavit Of Michael Charros ................ 47a

APPENDIX F_.

Supplemental Affidavit Of Geraldine

NTI nil s0k 5 ccc das ducogenansnevanedsturn 49a

APPENDIX G

Memorandum Of Decision And Order

On Defendants’ Motion To

PMID. ccicipeininibankeckiavensitnayennne 52a

- APPENDIX A

Supreme Judicial Court of Massachusetts

443 Mass. 752 (2005)

COMMONWEALTH

Vv.

Michael CHARROS (and three companion cases!).

Bristol. January 6, 2005. - March 31, 2005.

Present: MARSHALL, C.J., GREANEY, SPINA,

COWIN, SOSMAN, & CORDY, Ju.

INDICTMENTS found and returned in the Superior

Court Department on October 1, 1998.

A pretrial motion to suppress evidence was

heard by John A. Tierney, J. and the cases were

tried before Patrick F. Brady, J.

The Supreme Judicial Court on its own

initiative transferred the case from the Appeals

Court.

Dana Alan Curhan, Boston (Brad Bennion with

him) for Michael Charros.

Cynthia A. Vincent, New Bedford, for Geraldine

Charros.

Steven Gagne, Assistant District Attorney

(Alison R. Bancroft, Assistant District Attorney,

with him) for the Commonwealth.

1 Two against Geraldine Charros and one against Michael

Charros.

2a

Richard L. Goldman, Boston, for Committee for

Public Counsel Services, amicus curiae,

submitted a brief.

SPINA, J. Michael Charros was convicted of

trafficking in cocaine in excess of 200 grams, and

trafficking within 1,000 feet of a school zone.

Geraldine Charros, his wife, was convicted of a

lesser included offense of trafficking in cocaine in

an amount of twenty-eight grams or more but less

than one hundred grams, based on a theory of

joint venture. She also was convicted of a

corresponding school zone violation. On appeal,

the defendants argue that the search warrant for

their home did not authorize officers of the New

Bedford police department to stop them after they

left their home and traveled approximately one

mile, and that items seized as a result of their

illegal arrest and statements made by Michael

should have been suppressed in accordance with

the requirements of the Fourth Amendment to the

United States Constitution and art. 14 of the

Massachusetts Declaration of Rights.2 The

defendants raise other issues in_ these

consolidated appeals, including the refusal to

order discovery and the exclusion of evidence

concerning the identity of an alleged government.

informant; claims of ineffective assistance of

counsel; and a contention that Geraldine’s motion

for a required finding of not guilty should have

been allowed. We hold that the search warrant

did not authorize the stop of the defendants, but

that police had an independent basis for arresting

Michael. We affirm Michael's convictions, but we

2 We acknowledge the amicus brief on this issue filed by the

Committee for Public Counsel Services.

3a

reverse Geraldine’s convictions and remand her

case to the Superior Court for a new trial.

1. Background. The jury could have found the

following facts. On August 10, 1998, officers of

the New Bedford police department obtained a

search warrant for the first-floor apartment at

164 Query Street in New Bedford, the residence of

Michael and Geraldine Charros.* :

After obtaining the search warrant, numerous

officers in several cars positioned themselves at

various locations around 164 Query Street. At

approximately 5:45 P.M. a man other than

Michael left the house and drove away. Shortly

thereafter Michael was seen driving away in a

white van. Some officers stopped the van

approximately one mile away. Michael was

ordered to step outside, and a patfrisk resulted in

the discovery of two small paper folds containing

cocaine.’ One fold was randomly selected for

analysis and weighed 0.47 grams. It had a street

value of $20 to $25. Michael was handcuffed,

placed in a patrol car, and driven back to his

home. |

Geraldine and the couple’s eight year old son

were also in the van. An officer drove them in the

van back to their home. Once inside their

apartment both defendants were advised of the

Miranda warnings and allowed to examine the

search warrants. Geraldine was permitted to

arrange for a relative to remove their son from the

premises. She was placed in handcuffs.

’ 3 They had a second warrant authorizing the search of a brown

pick-up truck registered to Michael.

4a

Detective Paul Oliveira asked Michael if he were

willing to cooperate and show them where he kept

the cocaine. He indicated he would, and he led

the officers to a small room with a roll-top desk

from which were seized a number of items,

including a shoe box that contained a plastic bag

with 244.68 grams of cocaine, eight small corner

bags of cocaine (one was randomly selected for

analysis and had a net weight of 0.42 grams), a

small corner bag of nonnarcotic white powder, a

bottle of Inositol powder, a folded paper packet of

cocaine (its net weight was 0.26 grams), several

square pieces of paper, $140 in cash, an open box

of sandwich bags, a telephone pager, two keys, a

triple-beam balance scale, scissors, a butter

knife, a Harley Davidson brochure with slash

marks on it, and letters and bills addressed to

both defendants.

The officers used the keys found in the desk to

unlock a strongbox and a safe in a closet off the

room where the desk was located. The strongbox

contained an envelope with $10,000 cash, a blue

bank bag with $8,750 cash, and a white plastic

bag containing 28.42 grams of cocaine. The safe

contained a .22- caliber handgun = and

ammunition.*

A waste paper basket under the desk contained

an empty bottle of Inositol and plastic sandwich

bags with corners cut away. Inositol powder is

frequently used as a cutting agent to create or

4 At the conclusion of all the evidence the judge allowed

Michael Charros’s motion for a required finding of not guilty as to

a charge of unlawful possession of a firearm and ‘a charge of

unlawful possession of ammunition concerning these items.

5a

stretch a mixture of cocaine for retail sale.

Sandwich bags are frequently used in the retail

sale of cocaine by placing a small amount of

cocaine in a corner, tying a knot in the bag close

to the corner holding the drug, then cutting away

the unused portion of the bag above the knot,

leaving what is known as a “corner bag” of

cocaine. Corner bags usually contain a one-half

gram mixture of cocaine and sell for $20 to $25

on the street. Based on opinion testimony, the

items seized from the desk are not consistent with

personal use of cocaine, but are consistent with

items used in the sale of cocaine.

From the living room, officers seized a police-

band scanner that was “on” and tuned to one of

the New Bedford police department frequencies. It

was capable of receiving radio communications on

_ the frequency used by the narcotics unit. One

purse containing $1,500 cash was seized from the

master bedroom. It contained no identification

papers. The purse Geraldine had in her

possession at the time she was driven back to the

apartment also was seized. It contained $821

cash.

Michael admitted to Detective Oliveira that he

did not use cocaine, but had been selling it for

about eight years. He said he was not a big

dealer, and just sold a little “here and there” to

make some money. He _ said that the

approximately 250 grams that he had in the

house would last him about one month. Michael

explained that he kept the money in the safe, and

not in a bank, because he owed $30,000 in child

support. He also explained that the .22 caliber

handgun and ammunition had belonged to his

6a

father, and that his father recently had passed

away.

Both defendants testified. Michael denied

telling Detective Oliveira that he had been selling

drugs for eight years. He testified that he told

Oliveira that Joe Ryan had brought the box of

drugs to the house for safekeeping just minutes

before Michael had been arrested, and that Ryan

had been selling drugs for seven or eight years.

Michael testified that he never sold drugs, and

that he had purchased from Joe Ryan the two

paper folds of cocaine he had on his person when

arrested. He also denied telling Oliveira that he

owed $30,000 in child support, or that he even

mentioned owing child support. There had been .

papers on the roll-top desk that indicated a claim

in excess of $30,000 had been made against him

for child support, but Geraldine testified that they

had retained a lawyer and the claim was reduced

significantly.

Geraldine testified that Michael's father had

lived with them from January, 1997, until his

death in March, 1998. He suffered many medical

complications related to diabetes. A leg had been

amputated, he was confined to a wheelchair, and

he required dialysis. Michael was his father’s

caretaker during the day, and Geraldine helped

out at night by preparing his meals. Because her

father-in-law was on a “renal diet,” his food

portions, especially meat, had to be weighed with

precision. The triple-beam scale, which had been

kept in the pantry when he was alive, was used

for this purpose, and no other. She extended his

meals by sprinkling Inositol over the food. She

would prepare his meals in advance and set them

7a

aside in plastic sandwich bags. After the father

died, the scale was stored in the closet, and the

Inositol and sandwich bags were stored in the

roll-top desk. The scale had not been used after

the father’s death because she dropped and broke

it when placing it in the closet. The police

removed it from the closet and placed it on the

desk during the search of her apartment.

Geraldine also explained uses for other items

that had been offered by the Commonwealth as

paraphernalia used in the drug trade. The pager

was hers, and was used to reach Michael at a

time when their child frequently became ill at

school. She testified that she used the butter

knife as a letter opener, and that she attended to

the family bills at the roll-top desk. The scratches

on the Harley Davidson brochure were the result

of Michael's cutting Harley Davidson emblems

from the brochure and laminating them onto

magnets.

The police scanner belonged to the father, who

had listened to it constantly until his death. The

father's monthly pension checks, which totalled

approximately $1,100, went to his care, and to

compensate Michael for giving up his job to serve

as his father’s caretaker. The $10,000 found in an

envelope in the strongbox was money that the

father had saved. As for the $8,750 in the blue

bank bag, $7,000 were proceeds of two life

insurance policies the father had left to the

defendants, $1,100 was money Geraldine’s

employer had reimbursed her for a short term

loan she had made, and the rest was “house

money” Geraldine had put aside.

8a

Geraldine testified that she made short-term

loans to her employer, a trucking company, to

help keep the company operating. The company

was in bankruptcy, and she used her credit cards

to pay for current company expenses. The

company would then reimburse her and record

the payment on its books as “toll money.” Her

motive for helping in this manner was to build up

a good personal credit rating which she could

someday use to obtain a mortgage to purchase a

home. She had twenty-six credit cards, all in good

standing.

She explained that the $821 in the purse she

had at the time of her arrest consisted of $800

that was ready to be used to meet her employer's

needs, and she had taken $21 from the strongbox

just before they were stopped by police. It was to

have been used to buy supper. The $1,500 in her

purse in the master bedroom was a

reimbursement from her employer.

When Michael's father died, Michael became

depressed. He started drinking alcohol to excess,

and he resumed the use of cocaine after a period

of abstention of approximately four years. This

became a source of marital problems. Michael

obtained his cocaine from Joe Ryan. Ryan

appeared at their apartment at 5:30 P.M. on

August 10, 1998. He had a cardboard box (the

shoe box with the 244.68 grams of cocaine) which

he asked Michael to hold for him until the next

day because he had “something going down with

the cops.” Michael told Ryan he did not want

anything to do with it, but Ryan threatened him.

Ryan placed the box on the roll-top desk. Ryan

also discarded a bag of trash (containing the

9a

empty Inositol bottle and the sandwich bags with

corners cut out) in the waste basket under the

roll-top desk.

Michael left the room for a short time while

Ryan used their telephone. When he returned,

Ryan had the keys to the strongbox and the safe

in his hand. Two weeks earlier, Ryan had seen____

Michael retrieve the keys and open the strongbox

to get money to buy cocaine. Both Michael and

Geraldine testified they had never seen the white

plastic bag containing 28.42 grams of cocaine

that police seized from the strongbox. Geraldine

testified that when she opened the strongbox

shortly before Ryan arrived on August 10, to get

$20 for supper, the bag of cocaine was not in the

strongbox.

Michael and his sister, Linda, both testified

about threats that Ryan had communicated to

them in late winter and spring of 1999 about

what he would do to Michael if Michael continued

to accuse Ryan in court. Ryan made it known

that the source of his information about Michael’s

statements had been Detective Oliveira.

2. Required findings of not guilty. Geraldine

claims error in the denial of her motion for

required findings of not guilty at the close of the

Commonwealth's evidence. She argues specifically

that the Commonwealth failed to prove that she

acted as a joint venturer. We review this claim

under the standard of Commonwealth v. Latimore,

378 Mass. 671, 676-677, 393 N.E.2d 370 (1979),

to determine whether the evidence, in its light

most favorable to the Commonwealth, is sufficient

to permit any rational jury to convict. In order to

- 10a

succeed om a theory of joint venture, the

Commonwealth must prove that the defendant

was “(1) present at the scene of the crime, (2) with

knowledge that another intends to commit the

crime or with intent to commit a crime, and (3) by

agreement is willing and available to help the

other if necessary.” Commonwealth v. Bianco, 388

Mass. 358, 366, 446 N.E.2d 1041, S.C., 390

Mass. 254, 454 N.E.2d 901 (1983).

A jury could have inferred that Geraldine was

knowingly present in the apartment, where

Michael trafficked in cocaine. A large volume of

cocaine and paraphernalia for cutting, weighing,

and packaging cocaine for distribution were kept

openly, on a desk to which she had access. Her

mail was kept in the same place. The evidence

warranted a finding that, in the circumstances,

she had to know that a substantial cocaine

distribution operation was being run out of her

home. With respect to the third element of joint

venture, a jury reasonably could infer that

Michael’s cocaine trafficking operation generated

large amounts of cash, and that Geraldine

assisted in the management or concealment of

the proceeds of that~ operation by holding

proceeds in her purses. The motion for required

findings was properly denied.

3. Suppression issues. The search warrant

issued at 2:15 P.M. on August 10, 1998. The

motion judge found that the officers set up

surveillance of the premises at 164 Query Street

sometime between 5:30 and 6 P.M. that evening.

Their intention was to wait for Michael to leave

the premises and then stop him within a few

blocks, that is, as soon as he was out of view from

lla

his home. They believed, based on training and

experience, that this was the safer course, and

that evidence possibly could be destroyed by

someone inside the house if the defendants were

stopped in front of the house. The judge accepted

the officers’ concerns, and he found that the

ability of the officers to stop Michael's van before

it traveled nearly one mile was affected by Query

Street being a one-way thoroughfare. Relying on

Michigan v. Summers, 452 U.S. 692, 101 S.Ct.

2587, 69 L.Ed.2d 340 (1981), the judge concluded

that the officers did not act unreasonably, within

the meaning of the Fourth Amendment.

The defendants argue the officers’ authority

under the warrant to detain them exists only if

they are on the premises at the time police

conduct the search. They further argue that the

officers had no authority to seize them one mile

from their home, return them, and detain them

inside while officers conducted a search. Even if

their detention were permitted under the Fourth

Amendment, they maintain that it is not

acceptable under the more protective guarantee of

art. 14, which the motion judge did not address.

a. Authority under the warrant. The Supreme

Court held in Michigan v. Summers, supra at 705,

101 S.Ct. 2587, that, “for Fourth Amendment

purposes ... a warrant to search for contraband

founded on probable cause implicitly carries with

it the limited authority to detain the occupants of

5 Because the defendants were residents of the premises, we

are not concemed with the authority under this warrant to search

any person present. See Commonwealth v. Catanzaro, 441 Mass.

46, 51-52 n. 10, 57- 58 & n. 16, 803 N.E.2d 287 (2004).

12a

the premises while a proper search is conducted.”

In that case the Court approved the seizure of an

occupant as he was descending the front steps of

his residence, the house to be searched. He was

returned and detained inside while officers

searched his house. The Court reasoned that

“limited intrusions” on personal liberty incident to

a search may be justified under the Fourth

Amendment on less than probable cause by

“substantial law enforcement interests ... so long

as police have an articulable basis for suspecting

criminal activity.” Id. at 699, 101 S.Ct. 2587.

The .Court identified three law enforcement

interests that justify a detention on less than

probable cause when officers execute a search

warrant. The first is “preventing flight in the event

that incriminating evidence is found.” Id. at 702,

101 S.Ct. 2587. The second interest is

“minimizing the risk of harm to the officers:

Although no special danger to the police [need be

shown], the execution of a warrant to search for

narcotics is the kind of transaction that may give

rise to sudden violence or frantic efforts to

conceal or destroy evidence. The risk cf harm to

both the police and the occupants is minimized if

the officers routinely exercise unquestioned

command of the situation.” (Footnote omitted.) Id.

at 702-703, 101 S.Ct. 2587. The third law

enforcement interest involves “the orderly

completion of the search [that] may be facilitated

if the occupants of the premises are present.

Their self-interest may induce them to open

locked doors or locked containers to avoid the use

of force that is not only damaging to property but

may also delay the completion of the task at

hand.” Id. at 703, 101 S.Ct. 2587.

13a

With respect to the requirement that officers

have an “articulable and individualized suspicion”

of criminal activity, the Court said _ this

requirement is satisfied, at least as to occupants,

by circumstances underlying the issuance of the

warrant, namely, a judicial officer's finding of

probable cause to believe that a crime is being

committed in the house. Id. at 703, 101 S.Ct.

2587.

The Court noted that the detention of a person

incident to a search of his home is but an

“incremental intrusion on [his] personal liberty,”

id. at 703, 101 S.Ct. 2587, when compared to the

“substantial invasion of [his] privacy” authorized

by the warrant for his home. Id. at 701, 101 S.Ct.

2587. The Court further observed that “the type

of detention imposed here is not likely to be

exploited by the officer or unduly prolonged in

order to gain more information, because the

information the officers seek normally will be

obtained through the search and not through the

detention. Moreover, because the detention in this

case was in the respondent’s own residence, it

could add only minimally to the public stigma

associated with the search itself and would

involve neither the inconvenience nor _ the

indignity associated with a compelled visit to the

police station.” (Footnotes omitted.) Id. at 701-

702, 101 S.Ct. 2587. The Court concluded that

“the detention of _ this respondent was

‘substantially less intrusive’ than an arrest.” Id. at

702, 101 S.Ct. 2587.

The present case has little in common with

Michigan v. Summers, supra. The seizure of these

defendants did not-occur in the privacy of their

l4a

home, but at a location one mile away with no

connection to the premises to be _ searched.

Moreover, it occurred in spectacular fashion by

driving a police car across their path to cut off

their forward progress while they were driving on

one of the busiest streets in New Bedford during

evening rush-hour traffic. The seizure produced

all the indignity of an arrest in full view of the

public. This was hardly an _ “incremental

intrusion” on personal liberty, but a significant

deprivation of liberty far beyond what was

contemplated in Michigan v. Summers, supra at

703, 101 S.Ct. 2587. The circumstances of the

seizure of the defendants also had the palpable

potential for exploitation by the officers, who

otherwise had no authority to search the van in

which the defendants were ne See id. at

701, 101 S.Ct. 2587.

Two of the three interests of law enforcement

identified by the Supreme Court that arise during

the execution of search warrants did not exist in

this case. Once the defendants had left their

home, unaware of the existence of the warrant,

the officers had no interest in preventing their

flight from the search site during the search or

minimizing harm the defendants might cause

during a search. Other courts that have

considered this issue under the Fourth

Amendment have reached a similar conclusion.

See United States v. Edwards, 103 F.3d 90 (10th

Cir.1996) (defendant seized three blocks- from

search site and detained at point of seizure while

search completed); United States v. Sherrill, 27

F.3d 344 (8th Cir.), cert. denied, 513 U.S. 1048,

115 S.Ct. 647, 130 L.Ed.2d 552 (1994) (defendant

seized one block from search site); State v. Crank,

ae

212 Ga.App. 246, 441 S.E.2d 531 (1994)

(defendant seized two to three miles from search

site); State v. Ruoho, 685 N.W.2d 451

(Minn.Ct.App.2004) (defendant seized one-half

mile from search site). The Supreme Court of

Pennsylvania has reached a similar conclusion

under art. 1, § 8, of the Pennsylvania

Constitution. See Commonwealth v. Graziano-

Constantino, 553 Pa. 150, 718 A.2d 746 (1998)

(defendant seized two and one-half miles from

search site). With respect to the third law

enforcement interest recognized under Michigan v.

Summers, supra at 703, 101 S.Ct. 2587, the

orderly execution of the warrant, the officers

could have ensured the presence of the

defendants by executing the warrant earlier,

when they knew the defendants were home, or

they could have waited until their return. The

officers had other viable alternatives.

The Commonwealth, relying on Commonwealth

v. Catanzaro, 441 Mass. 46, 803 N.E.2d 287

(2004), and United States v. Cochran, 939 F.2d

337, 339 (6th Cir.1991), cert. denied, 502 U.S.

1093, 112 S.Ct. 1166, 117 L.Ed.2d 413 (1992),

argues that the rule in Michigan v. Summers,

supra, does not depend on the geographic

proximity of the seizure of an occupant to his

residence (the search site), but rather on the

reasonableness of police performance, that is,

whether officers seized the occupant as soon as

practicable after his departure from his residence.

Those cases are distinguishable.

In Commonwealth v. Catanzaro, supra, we held

that it was reasonable under the Fourth

Amendment and art. 14 to stop an occupant of an

16a

apartment to be searched as she was walking

down the driveway fifty to seventy feet from her

apartment building. She was stopped as soon as

reasonably practicable on leaving, and there was

a nexus between the place where the stop

occurred and the premises covered by the

warrant. In those circumstances, the stop was

merely an incremental intrusion beyond what had

been authorized by the warrant. Id. at 57, 803

N.E.2d 287. Here, there was no connection

between the place of seizure and the premises to

be searched, and the defendants were stopped on

a public street, away from their home.

In United States v. Cochran, supra, there were

special circumstances supported by specific facts

that do not exist here. The defendant there was

believed to carry a firearm at all times, and the

interior of his residence was protected by a guard

dog. Officers decided to stop him as he was

driving off his property and request his assistance

in entering his home. The defendant was stopped

as soon as practicable, on a public road a short

distance from his home. The court concluded that

in the circumstances the initial stop was valid.

. The purpose and scope of the initial stop were

broadened by the defendant’s conduct as police

approached his car, leading to searches of the car

that were justified under different principles. In

the case before us there were no such exigencies,

and the officers had planned in advance to stop

the defendants two blocks from their home and

take them back.

It is important to recognize the need of law

enforcement officers to “exercise unquestioned

command” of a search site and detain persons on

17a

the premises in the interest of the safety of all

involved, and to prevent the destruction of

evidence. Michigan v. Summers, supra at 702-703,

101 S.Ct. 2587. However, this authority is

incidental to, and exists contemporaneously with,

the execution of the warrant. It arises from

necessity, that is, from the need to control the

inherent volatility produced by the _ search

environment. It requires no special showing. i...

To conclude that such authority arises in

anticipation of the execution of the warrant, as

the Commonwealth suggests, requires a distorted

reading of the Summers case that effectively

would eliminate any meaningful relation between

the place of the seizure and the premises to be

searched, and it would give officers authority to

act in anticipation of the execution of a warrant

comparable to making an arrest without having to

meet the requirements of an arrest. Moreover, if

officers believe the element of surprise is needed

to conduct a search safely, they may apply for a

“no-knock” warrant and make the requisite

showing of probable cause to believe that

announcing themselves in advance of execution of

the warrant would jeopardize their safety or result

in the destruction of evidence (one of the three

law enforcement interests identified in Michigan v.

Summers, supra at 702-703, 101 S.Ct. 2587). See

Commonwealth v. Scalise, 387 Mass. 413, 418,

421, 439 N.E.2d 818 (1982). A no-knock warrant

was not sought here. The authority to seize and

detain an occupant incident to a search makes

sense only if -it is seen as_ arising

contemporaneously with the officers’ arrival at

premises to execute the warrant, and not in

preparation for the execution of that warrant.

-18a

For the foregoing reasons we conclude that, for

purposes of the Fourth Amendment, the officers

had no authority under the search warrant to

seize the defendants one mile from their home, or

to return and detain them in their home while the

search took place. Because we apply the same

general analysis to a claim that an off-premises

seizure of an occupant incident to a search

violates art. 14, see Commonwealth v. Catanzaro,

supra at 54-57, 803 N.E.2d 287, we reach the

same conclusion as a separate, adequate, and

independent ground under art. 14. This case does

not provide the opportunity for us to decide

whether art. 14 affords greater protection than

the Fourth Amendment with respect to off-

premises seizures of occupants incident to the

execution of a search warrant.

b. Probable cause to arrest. The conclusion we

reach with respect to the officers’ authority under

the warrant does not necessarily mean that the

order denying suppression must be vacated. The

defendants argue that the officers had no other

justification for stopping and detaining them. We

disagree, as to Michael. The affidavit in support of

the application for the search warrant indicates

that a confidential reliable informant, see

Commonwealth v. Crawford, 417 Mass. 40, 628

N.E.2d 4 (1994), purchased cocaine from Michael

Charros within fifteen days of the date of the

application for the warrant. The defendants do

not challenge the validity of the search warrant,

which was issued based, in part, on this

information. This information constitutes

probable cause to believe that Michael had

committed a felony as proscribed by G.L. c. 94C,

§ 32A {a). In addition to its support for the

19a

probable cause requirement for the issuance of

the search warrant, this evidence satisfies the

probable cause requirement for an arrest. See

Gerstein v. Pugh, 420 U.S. 103, 111-112, 95 S.Ct.

854, 43 L.Ed.2d 54 (1975), and cases cited.

Consequently, the officers had the authority to

arrest Michael without a warrant. See United

States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46

L.Ed.2d 598 (1976); Commonwealth v. Holmes,

344 Mass. 524, 183 N.E.2d 279 (1962). The initial

stop of Michael was valid, as it was based on

probable cause to arrest,© and his motion to

suppress was properly denied. However, there

was no probable cause to justify any arrest of

Geraldine. Her motion to suppress the $821 cash

found in her purse should have been allowed.

c. Harmless error. We must determine whether

the erroneous admission of evidence of the $821

found in the purse Geraldine was carrying

requires reversal of her convictions.

Constitutional errors that have been preserved

are reviewed to determine whether they are

harmless beyond a _ reasonable doubt. See

Commonwealth v. Vinnie, 428 Mass. 161, 163,

698 N.E.2d 896, cert. denied, 525 U.S. 1007, 119

S.Ct. 523, 142 L.Ed.2d 434 (1998). Under this

standard, the burden shifts to the

Commonwealth, see Commonwealth v. MacDonald

(No. 1), 368 Mass. 395, 399, 333 N.E.2d 189

(1975), to show that the wrongfully admitted

6 “Although to justify the seizure neither the Commonwealth

nor the judge relied on this theory, the general rule is that, if the

evidence is admissible, ‘it is of no consequence whether the reason

assigned by the judge was accurate.” Commonwealth v. Signorine,

404 Mass. 400, 403 n. 1, 535 N.E.2d 601 (1989), quoting Mathews

v. Orlandella, 320 Mass. 386, 388, 69 N.E.2d 571 (1946).

20a

evidence did not contribute to the verdicts. See

Commonwealth v. Peixoto, 430 Mass. 654, 660,

722 N.E.2d 470 (2000). The Commonwealth has

not addressed this issue in its brief.

We begin with the observation that it is difficult

on this record to weigh what was tainted and

what was not tainted by the wrongful admission

of the money in the purse Geraldine had in her

possession at the time of the initial stop. This

includes Geraldine’s testimony. Geraldine offered

an explanation at trial for the $821 in her purse,

thereby admitting possession of the item that

should have been suppressed. Some courts hold

that such voluntary testimony concerning the

item that should have been suppressed renders

any error harmless. See Muff v. State, 254 Ga. 45,

326 S.E.2d 454 (1985); Commonwealth v. Hart,

471 Pa. 271, 370 A.2d 298 (1977). However, at

least one commentator has suggested that this

approach, which places a defendant in a “Catch-

22” position, is little more than a manipulation of

the harmless error rule, and a defendant's

testimony explaining illegally admitted evidence

should be considered tainted. See 6 W.R. LaFave,

Search and Seizure § 11.7(f), at 482-484 (4th

ed.2004). In an early case involving the

exclusionary rule, this court, with no analysis,

disregarded the testimony of a defense witness

offered on the subject of illegally admitted

physical evidence. See Comuonwealth v. |

McCleery, 345 Mass. 151, 186 N.E.2d 469 (1962).

Moreover, the Supreme Court has said that one of

the “cumulative prejudicial effect[s]” of the

admission of physical evidence that should have

been suppressed includes the damaging

admissions made by a defendant in testimony

2la

offered to explain the wrongfully admitted

evidence. See Fahy v. Connecticut, 375 U.S. 85,

91, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).

Geraldine’s testimony, while apparently helpful

to her on the question of her connection to the

244 gram bag of cocaine, as well as the broken

condition of the triple-beam scale, may have had

the opposite effect as to the twenty-eight gram

bag of cocaine in the strong box, which she

admitted opening to get $20 just before her

arrest. This $20 is a portion of the evidence that

should have been excluded. It is particularly

significant because the Commonwealth contends

it is the proceeds of the crime of selling cocaine.

Geraldine’s explanation of where, when and why

she obtained it established that she had access to

the locked strong box used to conceal the twenty-

eight grams of cocaine, which appears to have

been the basis for her conviction. It is virtually

impossible to say, on this record, whether

Geraldine would have testified had the evidence

been suppressed. However, we think the evidence

of the $821 and Geraldine’s testimony were at

least as damaging as the few pieces of mail and

the purse with $1,500 (but no identification), the

only other evidence connecting her to the drugs.

The case against Geraldine was not strong. We

are not confident that the admission of the $821

found in her purse, together with her testimony

explaining the source of at least some of that

money, did not contribute to the verdicts. She is

therefore entitled to a new trial.’

7 Because of the conclusion we reach on this issue, we need

not address the remaining issues raised ir: her brief.

22a

4. Disclostire of confidential informant. There is

no merit to Michael Charros’s claim of error in the

judge’s failure to order disclosure of the identity

of the confidential informant “CI-1” described in

the affidavit in support of the application for the

search warrant. Michael filed a motion for

disclosure of CI-1's identity, but he did not press

the motion. The issue is waived, see

Commonwealth v. Padilla, 42 Mass.App.Ct. 67,

71, 674 N.E.2d 1102 (1997), but reviewable for a

substantial risk of a miscarriage of justice.

Michael was trying to show that “CI-1” was Joe

Ryan, and that Ryan was acting with knowledge

of New Bedford police when he allegedly arrived at

the Charros home on August 10, 1998, with 244

grams of cocaine. Instead of pressing the motion

for disclosure, Michael pursued an alternative

course by filing a motion to reopen the hearing on

the motion to suppress. At a hearing on the

motion to reopen, which had been preceded by

discovery of police reports concerning Ryan, the

detectives testified that they did not know Joe

Ryan on August 10, 1998. The judge credited that

testimony.

Michael was permitted discovery concerning

Joe Ryan, as well as a hearing on his motion to

reopen. He claims no error relating to the course

of that hearing, e.g., that his questions were

unfairly limited. Once it became apparent that

Ryan could not have been “CI-1,” Michael had no

further interest in the identity of “CI-1.” He has

failed to show any error in the judge’s decision to

credit the testimony of the officers. Although he

did not learn the identity of “CI-1,” Michael

nevertheless was able to present his defense that

23a

Ryan delivered the drugs to his home, and he

offered Ryan’s purported explanation that he had

“something going down with the police.” There

has been no showing of a substantial risk of a

miscarriage of justice.

5. Statement against penal interest. There is no

merit to Michael's claim of error in the exclusion

of statements attributable to Ryan to the effect

that he apologized to Michael's sister and to

Geraldine Charros for what he did, but he had to

solve his own problems with the police. The

statements were properly excluded as hearsay,

and they did not qualify as statements against

penal interest. There had been no showing that

Ryan was not available, and the statement had

not been- corroborated by circumstances clearly

indicating trustworthiness. See Commonwealth v.

Drew, 397 Mass. 65, 73, 489 N.E.2d 1233 (1986),

quoting United States v. Thomas, 571 F.2d 285,

288 (5th Cir. 1978).

Both defendants testified that they saw Ryan

the morning of their trial when he drove by the

court house. He was, therefore, not unavailable.

He was not called to testify, and unavailability

due to the possibility of a claim of privilege

against self-incrimination will not be presumed.

See Commonwealth v. Lopera, 42 Mass.App.Ct.

133, 137 n. 3, 674 N.E.2d 1340 (1997).

The primary corroboration offered for the

accuracy of Ryan's statements is the testimony of

Michael and Geraldine Charros that Ryan

delivered the drugs to their home on August 10,

1998, because of some difficulty he was having

with the police, and that the police also saw a

man, whom the defendants contend was Ryan,

24a

leaving the house shortly before the defendants.

However, the police could not say that the man

they saw leaving was Ryan, or that he came from

the defendants’ apartment. Moreover, even if it

were Ryan, the statement attributable to Ryan

does not support Michael's assertion that Ryan

was acting with knowledge of the police. There is

no evidence that police were aware of Ryan's

activities as a drug dealer until about July, 1999,

nearly one year after the arrests in this case. This

does not constitute circumstances clearly

indicating trustworthiness of statements made to

a defendant and his sister, both of whom have a

strong interest in the outcome of the case. There

was no error. .

6. Ineffective assistance. Michael contends that

his attorney was _ ineffective because he

abandoned the theory of the defense in his

closing.

Defense counsel had tried the case on the

theory that Joe Ryan and the police had “set

Michael up.” This necessarily meant that the

police were lying at trial. Although he did not

expressly accuse them of lying, and at times said

he was not accusing them of lying, he

unmistakably implied as much, and no

reasonable juror could have interpreted counsel's

closing as an abandonment of the attorney's very

aggressive and well managed trial strategy.

Michael’s Charros’s convictions are affirmed.

Geraldine Charros’s convictions are reversed, the

verdicts set aside, and her case is remanded to

the Superior court for a new trial.

So ordered.

25a

APPENDIX B

SEARCH WARRANT

G.L. c. 276, §§ 1-7

TRIAL COURT OF MASSACHUSETTS

Bristol

New Bedford

SEARCH WARRANT DOCKET NUMBER

TO THE SHERIFFS OF OUR SEVERAL

COUNTIES OR THEIR DEPUTIES, ANY STATE

POLICE OFFICER, OR ANY CONSTABLE OR

POLICE OFFICER OF ANY CITY OR TOWN,

WITHIN OUR COMMONWEALTH:

Proof by affidavit, which is hereby incorporated by

reference, has been made this day and I find that

there is PROBABLE CAUSE to believe that the

property described below:

O has been stolen, embezzled, or obtained

by false pretenses.

O is intended for use or has been used as

the means of committing a crime.

a Has been concealed to prevent a crime

from being discovered.

is unlawfully possessed or concealed for

an unlawful purpose.

O is evidence of a crime or is evidence of

criminal activity.

X other (specify) Cocaine, a class B

controlled substance as defined in MGL

YOU ARE THEREFORE COMMANDED within a

reasonable time and in no event later than seven

days from the issuance of this search warrant to

search for the following property:

26a

All controlled substances which have been

manufactured, distributed, dispensed, or

acquired in violation of Chapter 94C to include

specifically COCAINE. All materials, products,

and equipment of any kind, which are used, or

intended for use, in manufacturing,

compounding, processing, delivering,

dispensing, importing or exporting, of any

controlled substances in violation of Chapter

94C. All books and records, including

magnetic storage devices, tapes and computer

equipment, software and all monies used or

intended for use in procurement, manufacture,

compounding, processing, delivery, or

distribution of any controlled substance, in

violation of Chapter 94C, including all monies

which are believed to be the proceeds of sales,

or distribution of any controlled substance.

K) at:

164 Query Street first floor apartment in

New Bedford, Massachusetts. This is a two

- story structure that is gray with white trim.

The number 164 is on the front of the house.

Which is occupied by and/or in _ the

possession of: Michael Charros DOB:8-29-56

SS#017-48-9236

Geraldine Charros DOB:8-26-61

SS#015-46-8238

& on the person or in the possession of:

Same as above.

27a

You OO) are & are not also authorized to

conduct the’ search at any time during the

night.

You 0) are & are not also authorized to enter

the premises without announcement.

You & are O are not also commanded to

search any person present who may be found

to have such property in his or her possession

or under his or her control or to whom such

property may have been delivered.

YOU ARE FURTHER COMMANDED if you

find such property or any part thereof, to bring

it, and when appropriate, the persons in whose

possession it is found before the Bristol

Division of the New Bedford District Court

Department.

DATE ISSUED 8-10-98 2:15 PM

SIGNATURE OF JUSTICE, CLERK-MAGISTRATE OR

ASSISTANT CLERK

x Ilene M. Adams

PRINTED NAME OF JUSTICE, CLERK-MAGISTRATE OR

ASSISTANT CLERK

Ilene M. Adams

FIRST OR ADMINISTRATIVE JUSTICE

WITNESS: Aileen H. Belford

28a

APPLICATION FOR SEARCH WARRANT

G.L. c. 276, §§ 1-7

TRIAL COURT OF MASSACHUSETTS

Bristol

New Bedford

SEARCH WARRANT DOCKET NUMBER

NAME OF APPLICANT

Det. Paul J. Oliveira

POSITION OF APPLICANT

Police Officer - City of New Bedford

I, the undersigned APPLICANT, being duly sworn,

depose and say that:

1. I have the following information based upon

the attached affidavit(s), consisting of a total of

4 pages, which is (are) incorporated herein by

reference. |

2. Based upon this information, there is

PROBABLE CAUSE to believe that the

property described below:

L) has been stolen, embezzled, or obtained

by false pretenses.

O is intended for use or has been used as

the means of committing a crime.

O Has been concealed to prevent a crime

from being discovered.

is unlawfully possessed or concealed for

an unlawful purpose.

Oj is evidence of a crime or is evidence of

criminal activity.

x)

29a

X) other (specify) Cocaine, a class B

controlled substance as defined in MGL

3. I am seeking the issuance of a warrant to

search for the following property (describe the

property to be searched for as particularly as

possible):

All controlled substances which have been

manufactured, distributed, dispensed, or

acquired in violation of Chapter 94C to include

specifically COCAINE. All materials, products,

and equipment of any kind, which are used, or

intended for use, in manufacturing,

compounding, processing, delivering,

- dispensing, importing or exporting, of any

controlled substances in violation of Chapter

94C. All books and records, including

magnetic storage devices, tapes and computer

equipment, software and all monies used or

intended for use in procurement, manufacture,

compounding, processing, delivery, or

distribution of any controlled substance, in

violation of Chapter 94C, including all monies

which are believed to be the proceeds of sales,

or distribution of any controlled substance.

4. Based upon this information, there is also

probable cause to believe that the property

may be found (check as many as apply):

& at {identify the exact location or description of

the place(s) to be searched):

164 Query Street first floor apartment in

New Bedford, Massachusetts. This is a two

story structure that is gray with white trim.

The number 164 is on the front of the house.

30a

Which is occupied by and/or in the

possession of: Michael Charros DOB:8-29-56

SS#017-48-9236

Geraldine Charros DOB:8-26-61

SS#015-46-8238

] on the person or in the possession of:

Same as above.

&) on any person present who may be found to

have such property in his or her possession

or under his or her control or to whom such

property may have been delivered.

THEREFORE, I! respectfully request that the

court issue a Warrant and order of seizure,

authorizing the search of the above described

place(s) and person{s), if any, to be searched, and

directing that such property or evidence or any

part thereof, if found, be seized and brought

before the court, together with such other and

further relief that the court may deem proper.

I OO have previously submitted the same

application

I & have not previously submitted the same

application.

PRINTED NAME OF APPLICANT

Det. Paul J. Oliveira

SIGNED UNDER THE PENALTIES OF PERJURY

x Det. Paul J. Oliveira

3la

SWORN AND SUBSCRIBED TO BEFORE

X Ilene M. Adams

Signature of Justice, Clerk-Magistrate

8-10-98 2:15 pm

DATE

32a

PAGE# 1

AFFIDAVIT

In Support Of Application For Search Warrant

I, PAUL J. OLIVEIRA, being duly sworn

depose and say that I am a Police Officer in the

City of New Bedford. I have been employed in this

capacity for over five years. I am currently

assigned as a Detective in the Organized Crime

Intelligence Bureau which specializes in narcotics

investigations. I have conducted mumerous

investigations into violations of the Controlled

Substance Act resulting in numerous arrests and

convictions for various narcotics violations.

During the course of my duties I have

conducted undercover’ surveillance during

narcotics investigations. I have also participated

in the execution of numerous narcotics search

warrants. I have also cultivated information from

numerous confidential informants as well as drug

distributors and drug users who have been

arrested in possession of controlled substances. I

have also received training in the identification ¢“

controlled substances from the Massachusetts

Criminal Justice Training Council as well as

training from other Detectives in the narcotics

unit in the identification and pricing of various

quantities of controlled substances.

As a result of my training and experience |

am familiar with various controlled substances,

how they are packaged and approximate street

value for these controllec! substances. I am also

familiar with the common tactics and jargon used

by users and _ distributors of controlled

substances. .

33a

During the week of July 26, 1998 and up

until the present time this affiant has been

speaking with a confidential and _ reliable

informant regarding a male by the name of

Michael Charros selling large quantities of

cocaine out of his first floor apartment of 164

Query Street in New Bedford, Massachusetts. For

the purpose of this affidavit this informant will be

referred to as CI-1.

CI-1 has proven to be accurate and reliable

in the past by providing information which led to

the arrest of John Fortes (12-15-74) and the

seizure of 10 grams of cocaine, 5 bags of

marijuana, a 357 handgun and $6,343.00. As a

result of information supplied from CI-1, search

warrants were executed at 715 Summer Street

and 344 Ashley Boulevard in New Bedford,

Massachusetts on May 31, 1997 which resulted

in the above mentioned arrest and seizure. Fortes

was convicted as a result of this case on July 7,

1998 in New Bedford Third District Court.

Printed Names of Affiant

Det. Paul J. Oliveira

Signed Under The Penalties of Perjury

X Det. Paul J. Oliveira

Sworn and Subscribed To Before

X Ilene M. Adams

Signature of Justice, Clerk, Assistant Clerk

8-10-98

Date

34a

PAGE# 2

AFFIDAVIT

In Support Of Application For Search Warrant

CI-1 admits being a user of marijuana and

cocaine and is familiar with the common street

terminology used to refer to these drugs. CI-1

states that it is also familiar with the methods

used to prepare and package these drugs for the

purpose of street sales and the amounts that are

charged for them.

CI-1 states that during the week of July 26,

1998 and up until the present time it has been

inside of the first floor apartment of 164 Query

-Street and purchased cocaine from a inale by the

name of Michael Charros. CI-1 describes Charros

as a tall and skinny male with a thick mustache

and about forty years. CI-1 states that Charros

lives in the apartment with his wife and two smail

children. CI-1 also informed me that on more

than one occasion it has purchased cocaine from

the target inside of the apartment in the presence

of the target’s wife. For the purpose of this

affidavit Michael Charros will be referred to as the

target.

CI-1 states that the target has also

delivered cocaine to it in a brown pick up truck

bearing Massachusetts registration 465-VCZ.

During the week of July 26, 1998 this

affiant spoke with Detective Lt. Mel Wotton who

informed me that he had been speaking with a

first time informant over the last couple of weeks

35a

regarding Michael Charros selling large quantities

of cocaine. For the purpose of this affidavit this

first time informant will be referred to as CI-2.

Detective Lt. Mel Wotton informed me that

CI-2 admits being very familiar with cocaine and

the street terminology used to refer to it. CI-2 also

admits being familiar with the way cocaine is

packaged for the purpose of street level sales and

the prices that are charged for it.

Detective Lt. Mel Wotton states that CI-2 is

aware that Charros is a major cocaine supplier of

the city of New Bedford. CI-2 describes Charros

as a tall, white male with a mustache and about

forty years old. CI-2 states that the target lives in

the iirst floor apartment of 164 Query Street in

New Bedford, Massachusetts with his wife and

two children. ClI-2 also states that it is aware

that the target does not work and owns a brown

pick up truck bearing Massachusetts registration

465-VCZ and a

Printed Names of Affiant

Det. Paul J. Oliveira

Signed Under The Penalties of Perjury

X Det. Paul J. Oliveira

Sworn and Subscribed To Before

X Ilene M. Adams

Signature of Justice, Clerk, Assistant Clerk

8-10-98

Date

36a

PAGE# 3

AFFIDAVIT

In Support Of Application For Search Warrant

white and blue van bearing Massachusetts

registration 864-XCR and a motorcycle. CI-2

states that the brown pick up truck is always

parked in front of the house and the van is

parked in the driveway of the house.

CI-2 informed Detective Lt. Mel Wotton that

the target usually makes deliveries and does not

let many people come to the house to purchase

cocaine. CI-2 states that the target uses the

brown pick up truck bearing Massachusetts

registration 465-VCZ to deliver the cocaine and

he always delivers the cocaine right to the

customers house.

This affiant learned through the New

Bedford Police Central Records Bureau that the

registration plate (465-VCZ) on the truck is listed

to Geraldine Charros of 164 Query Street and the

vehicle listing is a 1988 brown, GMC pick up

truck. I also learned that the registration plate

(864-XCR) on the van is listed to Michael Charros

of 164 Query Street and the vehicle listed is a

1990 white and blue Chevy Sports Van.

During surveillance conducted outside of

164 Query Street this affiant has observed a male

fitting the description of the target entering and

exiting the house on a number of occasions. This

affiant has also observed this same male entering

the brown pick up truck bearing Massachusetts

registration 465-VCZ, which I always observed

37a

parked directly in front of the house. During this

surveillance I observed the blue and white van

parked in the driveway of the house. On a few

occasions during this surveillance this affiant has

followed the target in the pick up truck from 164

Query Street to different houses where he was

only in the house for a few minutes before he

exited and drove back to 164 Query Sireet.

CI-1 states that it has been inside of the

target’s apartment within the last 72 hours at

which time it has purchased cocaine and

observed more cocaine inside the apartment.

Based on the above information, this affiant

is requesting that search warrants be issued for

the first floor apartment of 164 Query Street in

New Bedford, Massachusetts and also for the

1988 GMC pick up truck bearing Massachusetts

registration 465-VCZ.

This affiant is requesting that ALL PERSON

PRESENT warrants be issued for the following

reasons as well as the reasons listed

Printed Names of Affiant

Det. Paul J. Oliveira

Signed Under The Penalties of Perjury

X Det. Paul J. Oliveira

Sworn and Subscribed To Before

X Ilene M. Adams

Signature of Justice, Clerk, Assistant Clerk

8-10-98

Date

38a

PAGE# 4

AFFIDAVIT

In Support Of Application For Search Warrant

in this affidavit. Being that cocaine is commonly

packaged in plastic baggies it can be easily be

hidden on a persons body and\or clothing. The

ALL PERSON PRESENT warrant would assist

investigating officers to be able to search anyone

who might be present in the apartment and

vehicle at the time of the execution of the search

warrants.

Printed Names of Affiant

Det. Paul J. Oliveira

Signed Under The Penalties of Perjury

X Det. Paul J. Oliveira

Sworn and Subscribed To Before

X Ilene M. Adams

Signature of Justice, Clerk, Assistant Clerk

8-10-98

Date

39a

APPENDIX C

COMMONWEALTH OF MASSACHUSETTS

BRISTOL, SS. SUPERIOR COURT

NOS. 9873CRO331A-E &

9873CRO0332

COMMONWEALTH

FILED

V. DEC 21 1998

MARC J. SANTOS, ESQ.

MICHAEL CHARROS AND CLERK / MAGISTRATE

GERALDINE CHARROS

DEFENDANTS' MOTION TO SUPPRESS

SEARCH AND SEIZURE (WITHOUT WARRANT)

AS WELL AS STATEMENTS ATTRIBUTED TO

DEFENDANT, MICHAEL CHARROS

(Statement of Reasons and Supporting Authorities

Included)

The defendants in the above-captioned case

hereby move this Court to suppress any and all

items seized emanating from a warrantless arrest,

personal search and seizure on August 10, 1998

by members of the New Bedford Police

Department at or near the intersection of

Acushnet Avenue and Covell Streets, New

Bedford, MA and continuing into the house

located at 164 Query Street (first floor). The items

to be suppressed are set forth on the attached

compilation of all evidence _ seized. The

Defendant, Michael Charros also moves to

suppress any alleged statements that may have

been attributed to him by members of the New

Bedford Police Department.

40a

The alleged physical evidence was seized

and statements taken were obtained under

circumstances that violated Defendants’ rights

under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution as

well as Articles Twelve, Thirteen, and Fourteen of

the Massachusetts Declaration of Rights, G.L.

c. 276, Sec. 1 and G.L. c. 276, Sec. 33A.

Grounds for the motion are as follows:

1.) The search of the defendants’ persons,

motor vehicle, and home at 164 Query Street (first

floor), as well as the seizure of property as alleged

evidence therefrom had no underlying basis in

probable cause. See Commonwealth v. Upton,

394 Mass. 363 (1985); Commonwealth v.

Preston, 27 Mass. App. Ct. 16 (1989).

2.) Alleged evidence seized was not in plain

view. See Commonwealth v. Sergienko, 399

Mass. 291, 293-295 (1987).

3.) The search was not a lawful inventory

search. See Commonwealth v. Bishop, 402

Mass. 499 (1988).

4.) The search was not a lawful search

incident to arrest. See Commonwealth v.

Stafford, 18 Mass. App. 964 (1984).

5.) There was no consent to the search of

the defendants’ persons, their motor vehicle, or

their home. See Commonwealth v. Cantalupo,

380 Mass. 173 (1980).

4la

6.) The arrest of the defendants was

effectuated without any underlying basis is

probable cause. ~See Commonwealth v.

Sanderson, 398 Mass. 761 (1986).

7.) Law enforcement authorities did not

have reasonable suspicion necessary to justify a

threshold inquiry/stop and frisk/Terry-stop. See

‘Terry v. Ohio, 392 U.S. 1, 30 (1968);

Commonwealth v. Almeida, 373 Mass. 266

(1977).

8.) The scope of the search went beyond the

allowable scope of. a threshold inquiry/stop and

frisk/Terry-stop. Id.

9.) Alleged statements attributed to

defendant, Michael Charros were taken by law

enforcement personnel under circumstances that

violated his privilege against self incrimination

and associated rights. See Miranda v. Arizona,

384 U.S. 436, 475-476 (1966); Commonwealth

v. Riveiro, 393 Mass. 224, 228 (1984).

10.) Alleged statements .. . Michael

Charros were obtained by law enforcement

personnel under circumstances that constituted

“the fruit of the poisonous tree.” See Wong Sun v.

U.S., 371 U.S. 471 (1963); Commonwealth v.

O’Connor, 21 Mass. App. Ct. 404, 406 (1986).

11.) Alleged statements attributed to the

defendant, Michael Charros were not obtained

after a free, willing, voluntary and intelligent

waiver of his rights. See Commonwealth v.

Hosey, 368 Mass. 571, 574 (1975);

42a

Commonwealth v. Tavares, 385 Mass. 140

(1982).

12.) The evidence obtained from

defendants’ home at 164 Query Street (first floor)

and its attribution to these defendants also

constitute the “fruit[s] of the poisonous tree”.

Wong Sun v. U.S., 371 U.S. 471 (1963);

Commonwealth v. Pietrass, 392 Mass. 892

(1984).

WHEREFORE, the defendants request the

present motion be allowed after hearing.

Respectfully submitted,

MICHAEL CHARROS AND

GERALDINE CHARROS

By their attorneys

[s/

Theodore A. Barone

SULLIVAN LARGEY & BARONE

277 Newport Avenue

Quincy, MA 02169

617-328-6900

BBO# 030190

(Michael Charros)

And

/s/

Terry Flukes (BBO #172140)

159 Thomas Burgin Parkway

Quincy, MA 02169

617-847-4440

(Geraldine Charros)

December 21, 1998

43a

I hereby certify that a true copy of

the Motion to Suppress (Without Warrant)

was served upon (each party appearing)

the attorney of record for each party by

hand delivery on 12/21/98

/s/

44a

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

BRISTOL, SS. SUPERIOR COURT

NOS. 9873CRO331A-E &

9873CRO0332

COMMONWEALTH

FILED

V. DEC 21 1998

MARC J. SANTOS, ESQ.

MICHAEL CHARROS AND CLERK / MAGISTRATE

GERALDINE CHARROS

AFFIDAVIT OF COUNSEL IN SUPPORT OF ALL

DEFENDANTS’ MOTIONS

I, Theodore A. Barone, hereby depose and

state, under oath, and upon my own personal

knowledge, information, and belief, the following:

1.) I represent Michael Charros in the

above-captioned matter.

2.) I have received information that an

individual known to my client entered 164 Query

Street (first floor) on August 10, 1998 with a large

quantity of what is now believed to be a controlled

substance known as cocaine, which alleged

cocaine has been attributed to my client and his

wife, Geraldine Charros. It is my understanding

that subject individual’s entry occurred just

minutes before my client and his wife and son left

164 Query Street and were confronted by

members of the New Bedford Police Department.

45a

3.) I believe and therefore state that subject

individual is referred to in the search warrant

affidavit as CI-1.

4.) I believe and therefore state that the

search warrant affidavit makes reference to the

following:

CI-1 states that it has been inside of the

target’s apartment within the last 72 hours

at which time it has purchased cocaine and

observed more cocaine’ inside the

apartment.

5.) I believe and therefore state . . . provided

to me indicates that members of the New Bedford

Police Department were conducting pre-raid

surveillance just before my client and his wife

were. confronted by the police in a motor vehicle

at or near the intersection of Acushnet Avenue

and Covell Street. From my reading of the

discovery, it is apparent that my client and his

wife and the motor vehicle were detained,

searched, and seized without a showing of a

warrant. My reading of the discovery indicates

that my client and his wife were then brought

back to 164 Query Street (first floor).

6.) I believe and therefore state that law

enforcement authorities knew or should have

known that the individual whom I believe to be

CI-1 entered 164 Query Street (first floor) with a

quantity of what is now believed to be cocaine and

which has now been attributed to my client and

his wife.

46a

7.) I believe and therefore state that the

indication in the search warrant set forth in

preceding paragraph 4 materially misstates the

true facts surrounding the search, seizure and

arrest involving my client and his wife.

8.) My client is a diabetic. I am informed

and therefore state that after he was returned to

his home while in custody and the New Bedford

Police conducted a search of the premises, my

client had a serious reaction associated with his

diabetes but was not able to obtain and swallow

any item that contained sugar until much later in

the day.

Executed upon information received and

belief under penalties of perjury this 21st day of

December, 1998.

/s/

Theodore A. Barone

I hereby certify that a true copy of

the Affidavit of Counsel

was served upon (each party appearing)

the attorney of record for each party by

hand delivery on 12/21/98

/s/

47a

APPENDIX E

COMMONWEALTH OF MASSACHUSETTS

BRISYOL, SS. SUPERIOR COURT

Nos. 9873CRO331

COMMONWALTH [sic]

V.

MICHAEL CHARROS

AFFIDAVIT OF MICHAEL CHARROS

’ I, Michael Charros, hereby depose and state

upon my own personal knowledge, information,

and belief, the following:

1.) I am the defendant in the above-

captioned matter.

2.) I was legally operating a motor vehicle

that was stopped by members of the New Bedford

Police Department on August 10, 1998 at or near

the intersection of Acushnet Avenue and Covell

Street.

3.) I was not shown a search warrant or

arrest warrant at the scene of the stop.

4.) The motor vehicle and #ve one

passengers were searched.

5.) I was later charged with drug violations

after being taken back to my then home at 164

Query Street, First Floor and further confronted

by New Bedford Police Officers.

48a

Executed under the penalties of perjury this

23rd day of March, 1999.

/s/

Michael Charros

49a

APPENDIX F

COMMONWEALTH OF MASSACHUSETTS

BRISTOL, SS. SUPERIOR COURT

NOS. 9873CRO331A-E &

9873CRO0332

COMMONWEALTH

FILED

JUL 2 1999

MARC J. SANTOS, ESQ.

MICHAEL CHARROS AND CLERK / MAGISTRATE

GERALDINE CHARROS

SUPPLEMENTAL AFFIDAVIT OF GERALDINE

CHARROS IN SUPPORT OF BOTH

DEFENDANTS’ MOTION TO SUPPRESS

SEARCH AND SEIZURE (WITHOUT WARRANT)

AS WELL AS STATEMENTS ATTRIBUTED TO

DEFENDANT, MICHAEL CHARROS

I, Geraldine Charros, hereby depose and

state, upon my own personal knowledge,

information, and belief, the following:

1.) I am one of two defendants in this

matter. The other defendant is my husband,

Michael Charros.

2.) | was a passenger in a motor vehicle that

was stopped by members of the New Bedford

Police Department on August 10, 1998 at or near

the intersection of Acushnet Avenue and Covell

Streets. Michael Charros was driving the motor

vehicle.

50a

3.) Michael Charros and I were not shown a

search or arrest warrant at the scene of the stop

nor did anyone consent to the search.

4.) Michael Charros was searched at the

scene.

5.) Michael Charros and I were shortly

thereafter brought back to our then home at 164

Query Street, First Floor by New Bedford Police

Officers. Throughout this entire time at the

house, Michael and I were in handcuffs.

6.) Michael Charros and I were both

charged with controlled substance violations.

7.) Michael Charros has been diagnosed

with diabetes. In order to help deal with the

disease, he carries a card that gives some

explanation of his diabetes and a _ general

description of some of the symptoms. A true copy

of that card is attached hereto.

8.) I have witnessed numerous incidents

that Michael Charros has had with the onset of a

diabetes problem. At those times, he is unable to

function normally and seems as if he is unable to

take directions or understand what I may be

saying to him.

9.) After Michael Charros and I had been

brought back to 164 Query Street, First Floor,

New Bedford, MA on August 10, 1999, he began

having a diabetes episode.

10.) While the police searched 164 Query

Street, First Floor, New Bedford, MA, Michael

5la

Charros was slumping in a _ kitchen chair;

continually repeating that he was not feeling well;

and intermittently mumbling in a way that could

not be understood.

11.) I requested several times of the New

Bedford Police that we be allowed to get his -

glucose pills in order to help Michael, but my

requests were to no avail until quite sometime

later when a police officer retrieved the glucose

pills from our truck and placed them on the

kitchen table.

Executed under penalties of perjury this 30

day of June, 1999.

/s/

Geraldine Charros

52a

APPENDIX G é

COMMONWEALTH OF MASSACHUSETTS

BRISTOL, ss. SUPERIOR COURT

2 CRIMINAL ACTION

NO. 9873CRO0331A-E;

9873CRO332A-C

FILED

DEC 29 1999

MARC J. SANTOS, ESQ.

CLERK/ MAGISTRATE

MEMORANDUM OF DECISION AND ORDER ON

- DEFENDANTS’ MOTION TO SUPPRESS

On October 1, 1998, the Bristol County

grand jury indicted the defendant, Michael

Charros for trafficking a controlled substance in

violation of G.L. c. 94C, Section 32E(b)(4);

trafficking a controlled substance within a school

zone in violation of G.L. c. 94C, Section 32J;

conspiring to violate controlled substance laws in

violation of G.L. c. 94C, Section 40; unlawful

possession of a firearm without obtaining an

identification card in violation of G.L. c. 269,

Section 10(h); and unlawful possession of a

firearm without complying with the requirements

relating to the firearms identification card in

violation of G.L. c. 269, Section 10(h).

On October 1, 1998, the Bristol County

grand jury also indicted the defendant, Geraldine

Charros for trafficking a controlled substance in

violation of G.L. c. 94C, Section 32E(b)(4);

trafficking a controlled substance within a school

zone in violation of G.L. c. 94C, Section 32J; and

conspiring to violate controlled substance laws in

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violation of G.L. c. 94C, Section 40. Defendants

are now before this court moving to suppress

evidence as well as the statements made by

defendant, Michael Charros. For the reasons

discussed below, the defendants’ motion to

suppress evidence and Michael Charros’

statement is DENIED.

BACKGROUND

On August 10, 1998, New Bedford police

arrived at 164 Query Street in New Bedford to

execute a search warrant at the apartment of the

defendants. The detectives set’ up surveillance

between 5:30 and 6:00 p.m. During that time, a

van owned by the defendants left from their

driveway at 164 Query Street. The police did not

stop the van until it reached about one mile from

164 Query Street. The police chose not to stop the

van in front of 164 Query Street in case someone

was inside the Charros’ apartment, who, upon

viewing the detention of the van, couid have

destroyed any narcotics kept therein. Query

Street is a one-way street and that fact affected

police’s ability to stop the van at an earlier point.

Additionally, the van was stopped in the first

lightly trafficked area available after leaving

Query Street.

After the van was stopped, police detectives

searched defendant Michael Charros_ (“Mr.

Charros”). As a result of the search, police

detectives found a small amount of cocaine in Mr.

Charros’ pocket. Both defendants were then

brought back to 164 Query Street. The search

warrant was given to defendants so that they

could read it, and they were informed of their

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Miranda rights. After searching 164 Query Street,

police detectives found a large amount of cocaine,

money, and a handgun. At the completion of the

search, Mr. Charros made several incriminating

statements to Detective Oliveira, including an

- admission to selling 250 grams of cocaine a

month.

Additionally, Geraldine Charros_ (“Mrs.

Charros”) testified that Mr. Charros' was

complaining that he was not feeling well. She

further stated that he laid his head down on the

table and spoke in a confusing manner. She also

testified that he exhibited signs consistent with

' her numerous, previous observations of his

having diabetic episodes. The defendants also

introduced medical and pharmacy records

confirming the fact that Mr. Charros was a

diabetic.

DISCUSSION

A. Search Conducted Pursuant to A Warrant

Under Massachusetts law, all searches

must be accompanied by a search warrant with a

few specifically-established and well-delineated

exceptions. Search warrants are issued by

impartial magistrates or judges following review of

a warrant application. G.Lc. 276, § 1;

Commonwealth v. Moran, 353 Mass. 166 (1967).

The application must include an _ affidavit

containing facts, information, and circumstances

upon which the affiant is relying in order to

establish sufficient grounds to issue the warrant.

G.L. c. 276, § 2B.

55a

In order to establish probable cause, the

affidavit must “contain enough information for

the issuing magistrate to determine that the items

sought are related to the criminal activity under

investigation, and that they may reasonably be

expected to be located in the place to be

searched.” Commonwealth v. Lopez, 31 Mass.

App. Ct. 547 (1991), rev. den. 411 Mass. 1105. In

reviewing the warrant application to determine

whether probable cause to issue the warrant

existed, the court should read the affidavits in an

ordinary, common-sense manner without hyper

technical analysis. Commonwealth v. Melendez,

407 Mass. 53, 60 (1990).

A common method of establishing probable

cause is through information supplied to the

police by a confidential informant. Where an

affiant relies on information from a confidential

informant, the affidavit must satisfy the two-

pronged test set forth in Aguilar v. Texas, 378

U.S. 108 (1964) and Spinelli v. U.S., 393 U.S. 410

(1969), before a finding of probable cause can be

made. Commonwealth v. Upton, 394 Mass. 363,

374 (1985). The Supreme Judicial Court in

Upton, by adopting the two-pronged Aguilar-

Spinelli test, rejected the Supreme Court's

adoption in Illinois v. Gates, 462 U.S. 213 (1983),

of the “totality of the circumstances” test. Upton,

394 Mass. at 374. Under the Aguilar-Spinelli

standard, the affidavit must-set-forth facts of (1)

some of the underlying circumstances from which

the informant concluded that the items were

where he claimed they were (the basis of

knowledge test), and (2) some of the underlying

circumstances from which the affiant concluded

that the information was credible or reliable

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(veracity test). Upton, 394 Mass. at 375. Each

element of the test must be separately considered

and satisfied or supplemented in some way. Id. at

376.

In the case at bar, Detective Oliveira’s

affidavit established probable cause since the

articulable information ffulfilled both the

knowledge and veracity tests. Detective Oliveira

provided two informants in support of his affidavit

for search warrant. His first informant had proven

himself reliable in the past, having provided

information in the past that led to a prior arrest

and conviction. The informant’s information

included the fact that he had purchased cocaine

from Mr. Charros more than once and that Mr.

Charros had delivered cocaine to him while Mr.

Charros was in his pick-up truck. Detective

Oliveira’s second informant offered similar

information. The information provided b: both

informants was _ corroborated’ by police

surveillance. Further, after surveillance, Detective

Oliveira described in his affidavit what could be

viewed as cocaine deliveries by Mr. Charros.

Applying the Aguilar-Spinelli standard, the

information used by Detective Oliveira in his

affidavit passes both the knowledge and veracity

test since the informants had personal knowledge

of Mr. Charros’ cocaine trafficking and one of the

informants provided reliable information in the

past. Hence, because’ Detective Oliveira

established probable cause in his affidavit, the

search warrant to search 164 Query Street was

valid.

57a

B. The Detention and Returning of

Defendants to Their Residence

The defendants argue that their arrest

approximately one mile from 164 Query Street

was improper. Defendants were detained a mile

away from their residence and brought back to

their residence immediately before police

detectives began searching their residence on 164

Query Street. While there is no Massachusetts

case law that’ directly addresses’ the

constitutionality of being detained and returned

to one’s home to be present for a search pursuant

to a warrant, relevant authority exists that

suggests that police actions were constitutional.

In Michigan v. Summers, 452 U.S. 692

(1981), the Court held that the initial detention of

the defendant descending his front steps while

the police executed a search warrant to search his

home did not violate the Fourth Amendment. The

Court stated that “the warrant, founded on

probable cause, implicitly carried with it the

limited authority to detain the occupants of the

premises while a proper search was executed”

and that because it was lawful to detain the

occupants until evidence establishing probable

cause to arrest him was found, his arrest and

search incident thereto were constitutionally

permissible. Id at 340.

The Supreme Court reasoned that “of prime

importance in assessing the intrusion is the fact

that police had obtained a warrant to search

respondent's house for contraband. A neutral and

detached magistrate had found probable cause to

believe that the law was being violated in that

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house and had authorized a substantial invasion

of the privacy of the persons who resided there.

The detention of one of the residents while the

premises were searched, although admittedly a

significant restraint on his liberty, was surely less

intrusive than the search itself.”

Id. at 340-341. Further, the Court

articulated three legitimate law enforcement

interests in discerns that there is a legitimate law

enforcement interest in preventing flight in the

event that incriminating evidence is found.

Second, there exists an interest in minimizing the

risk of harm to police officers. The risk of harm to

both the police and the occupants is minimized if

the officers routinely exercise unquestioned

command of the situation. Third, the orderly

completion of the search may be facilitated if the

occupants of the premises are present. Id. at 349-

350.

In addition to the Supreme Court’s decision

in Michigan v. Summers, other federal cases

support the actions the police took in this case. In

U.S. v. Cochran, 939 F.2d 637, 638 (6th Cir.

1991), the court found that Michigan v. Summers

applies when the police had stopped the

defendant after he had driven a short distance

- from his home. The court stated that the focus on

whether police action is permissible should be on

police performance rather than _ geographic

proximity; meaning that courts should examine

whether the police detained the defendant as

soon as it was practical to do so after defendant

departed from his residence. Id at 640.

59a

| Defendants, however, argue that Michigan

v. Summers is easily distinguishable from the

case at bar. Defendants cite several authorities in

support of their argument that police acted

inappropriately in detaining the defendants. Upon

review of each party’s authority, this court

believes that the authority cited by the defendants

is distinguishable from the case at bar while

Michigan v. Summers more aptly applies to the

facts of this case. The defendants rely on U.S. v.

Hogan, 25 F.3d 690, 693 (8th Cir. 1994) to argue

that the police detectives detention of the

defendants was unconstitutional. In Hogan, the

Eighth Circuit distinguished Michigan v.

Summers holding in part that “the intrusiveness

of the detention was therefore much greater in

Summers” and that there was no risk of harm to

the agents from the defendant who was in a car

miles away from the premises. Id. at 693.

Defendants also rely on United States v.

Sherrill, 27 F.3d 344, 346 (1994) to support their

position. In Sherrill, the detention of cefendant

one block from his home after he drove away from

it was not authorized by Summers as the

“intrusiveness of the officers’ stop and detention

on the street was much greater” and “officers had

no interest in minimizing the search's risks

because Sherrill had left the area of the search

and was unaware of the warrant.” Id. at 346.

Both Sherrill and Hogan are distinguishable

because in both cases there was no irterest to

minimize any risks to losing any evidence or to

alleviate dangerous activity and provid: greater

safety for the police detectives unlike the case at

bar.

60a

Considering the relevant Supreme Court

and federal case law, New Bedford police’s actions

were constitutional given all circumstances

surrounding this case. The police received a

search warrant for 164 Query Street. The police

chose to wait until they saw someone exit the

residence. Based upon experience and training,

the police believed that waiting was a safer course

of action. The police also believed that if the

defendants had been stopped infront of the

house, evidence could have been destroyed by

anyone possibly remaining inside the house.

Thus, the police stopped the defendants at the

most practical moment- approximately a mile

away from their residence in lightly trafficked

area.

The police’s seizure of defendants and their

return to the residence was done to advance the

three governmental interests advanced in

Michigan v. Summers. New Bedford police had a

legitimate interest in preventing flight in the event

that incriminating evidence was found by waiting

for the defendants to exit the residence; they

wished to minimize the risk of harm to their

officers also by waiting for the defendants to exit

their residence; and they completed the search in

an orderly fashion by having the occupants of the

premises present. Furthermore, this court is

conscious of the fact that the defendants are

allegedly involved in trafficking narcotics. Since

evidence of narcotics can be quickly destroyed

and police apprehension of narcotics defendants

can be highly dangerous, police detectives’

conduct was appropriate. Finally, because the

police detectives’ conduct advanced the legitimate

governmental interests supported by Michigan v.

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Summers, the detention and returning of the

defendants to their residence was constitutional.

Cc. Mr. Charros’ Statements

Defendant, Michael Charros also argues

that the statements that he had made to police

should be suppressed. After police read Mr.

Charros his Miranda rights, he admitted that he

was selling 250 grams of cocaine a month. He

now argues that he could not have knowingly,

intelligently, and voluntarily waived his Miranda

rights because he was suffering from a diabetic

reaction. Defendant, however, did not testify and

did not establish sufficient evidence that he did

not understand nor volunteer the statements he

made to police detectives. While Mr. Charros

established that he has a history of diabetes, he

has not produced sufficient evidence that he

suffered from a diabetic reaction at the time he

incriminated himself. Further, he did not

establish that his diabetic reaction affected his

ability to knowingly, intelligently, and voluntarily

waive his rights. At the same time, police officers

attest that Mr. Charros was sober, alert, walking

normally, and speaking with intelligible speech,

and that there was no indication that his waiver

of Miranda was anything other than knowing,

intelligent, and voluntary. Commonwealth v. Day,

387 Mass. 915, 918 (1983). Accordingly,

defendant’s statements made to police are

admissible and will not be suppressed.

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ORDER

For the foregoing reasons, it is hereby

ORDERED that defendants’ motion to suppress is

DENIED.

Ls/

John A. Tierney

Justice of the Superior Court

DATED: December 29, 1999