Com. v. Rodriguez

877 N.E.2d 1274

450 Mass. 302

COMMONWEALTH v. Joel RODRIGUEZ.

SJC-09910.

Supreme Judicial Court of Massachusetts, Hampden.

Argued October 2, 2007.

Decided December 26, 2007.

Beth L. Eisenberg, Committee for Public Counsel Services, Boston, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

David M. Siegel, Boston, for Suffolk Lawyers for Justice, Inc., amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

COWIN, J.

A jury convicted the defendant, Joel Rodriguez,¹ of trafficking in cocaine in excess of 200 grams in violation of G.L. c. 94C, § 32E (b) (4).² The Appeals Court affirmed the defendant's conviction, Commonwealth v. Rodriguez, 67 Mass.App.Ct. 636, 855 N.E.2d 1113 (2006), and we granted further appellate review primarily to consider the defendant's constitutional and statutory claims regarding a conversation intercepted under the authority G.L. c. 272, § 99, the Massachusetts wiretap act.³

The defendant contends that testimony by a State trooper regarding his recollection of the intercepted conversation was wrongly admitted because the conversation was obtained in violation of art. 14 of the Massachusetts Declaration of Rights.⁴ The defendant's argument, in essence, is that the wiretap act is unconstitutional as applied to the facts of his case. We determine that probable cause and exigent circumstances justified the warrantless interception of the conversation, and there was thus no violation of art. 14. The defendant maintains also that the State trooper's testimony regarding the intercepted conversation should have been excluded because the Commonwealth, in effecting the interception, did not comply with G.L. c. 272, § 99 O 2.⁵,⁶ Because the admission of the trooper's recollection of the intercepted conversation did not result in a substantial risk of a miscarriage of justice, we need not decide whether the conversation was inadmissible as a violation of the wiretap act. We agree with the reasoning and holding of the Appeals Court with respect to the defendant's other claims.⁷ Accordingly, we affirm the conviction.

Facts. We recite the facts the jury could have found, reserving further details for discussion in conjunction with the specific issues raised. On January 29, 2003, Sergeant John Michel of the State police received from United States Customs Service officials a large box containing a substantial quantity of cocaine. The cocaine was secreted in a bicycle frame within the package.⁸ The way-bill indicated that the box was sent from Colombia and was addressed to Pedro Tirado, 5 Ardmore Street, Springfield. On the same day, Sergeant Michel sought and received an anticipatory search warrant⁹ for 5 Ardmore Street and assembled officers to deliver the box and then execute the warrant.

Shortly thereafter, Trooper Michael Joselyn arrived at 5 Ardmore Street posed as a delivery person. Tirado signed for the package after confirming that it was addressed to him. Approximately fifteen minutes later, officers executed the search warrant. They used a battering ram to enter the apartment after receiving no response at the front door, and found Tirado sleeping in a bedroom with his wife. The package had been left just inside the front door and was unopened. Tirado was handcuffed, given Miranda warnings, and told that he was "in trouble."

Tirado denied that the package belonged to him and volunteered to cooperate with the police. He told them the following: about one and one-half weeks earlier, the defendant, an acquaintance Tirado had met through a mutual friend only a couple of months before, offered to pay Tirado $400 if he would accept delivery of a package. Tirado had been to the defendant's apartment three or four times, but the defendant had never been to his. Tirado accepted the defendant's proposal for the money offered. The defendant explained to Tirado how and when the package would arrive, but did not reveal its contents. He told Tirado to telephone him when the package arrived, and said that he would come by to pick it up. After "everything was all right," he would pay Tirado the money. Tirado's actual address was 3 Ardmore Street, Springfield, but he provided the defendant with his wife's address at 5 Ardmore Street because he had been staying there.

After Tirado concluded his story, the officers had him place a telephone call to the defendant. Officer Aurelio Garcia, who spoke Spanish, stood nearby and without the aid of listening devices could hear the conversation between the defendant and Tirado. Tirado told the defendant that "his [defendant's] package" had arrived, and the defendant asked for directions to Tirado's house.

Following the telephone call, Officer Richard Soto was dispatched to the area where the defendant lived to conduct surveillance. He was provided with the defendant's description and told that the defendant would be picked up by a taxicab and driven directly to 5 Ardmore Street. Officer Soto saw a taxicab arrive in front of a building and a man matching the defendant's description leave the building and step into the taxicab. After radioing these developments back to the other officers, Officer Soto trailed the taxicab during its ten minute drive to 5 Ardmore Street.

While awaiting the defendant's arrival, Officer Garcia placed an electronic monitoring and recording device inside Tirado's shirt pocket. An accompanying device was put inside Trooper Juan Colon's vehicle, parked outside the apartment, to enable the monitoring and recording of Tirado's communications. Trooper Colon later discovered that the volume control on the device had been set too low to produce an audible recording. Nevertheless, he was able to hear some, but not all, of the defendant's conversation with Tirado through the electronic device.

The defendant arrived at 5 Ardmore Street in the taxicab, which parked in front of the address with its trunk open. Tirado met the defendant at the front door and the two men entered the apartment. The defendant "grabbed" the package and paid Tirado $200, telling him that he would pay the remaining $200 balance later. Tirado testified that he asked the defendant to open the package, but the defendant said that he did not have enough time. As the defendant started to leave the apartment with the package, he received a telephone call and asked Tirado to carry the package outside. Tirado replied, "[N]o, it's your package." The defendant ended the telephone call and continued out the door. He had spent no more than ten minutes in the apartment.

The defendant reached the trunk of the taxicab and was placing the package inside when officers appeared, identifying themselves as police. The defendant looked at the officers before fleeing on foot, but he was quickly caught and handcuffed. A search of the defendant revealed three small bags of marijuana, a cellular telephone, and just over $1,000 in cash. Inspection of the box revealed a bicycle frame containing almost 900 grams of seventy-one per cent pure cocaine.

At trial, the defendant testified and denied any prior arrangement with Tirado involving the delivery of the package. The defendant claimed that he first learned of the package on the morning of his arrest, when Tirado called to ask for a favor. According to the defendant, Tirado asked him to pick up the package because he could not keep it at his home due to a problem with his wife. As for the $200 that was exchanged, the defendant testified that Tirado asked to borrow the money and that he reluctantly agreed only when Tirado promised to pay him back "right away." In rebuttal, the Commonwealth called Trooper Colon, who had monitored the conversation from the adjacent parking lot. Trooper Colon recounted his recollection of the conversation:

"I hear Tirado actually, excuse me, Joel ask Tirado is everything okay? Tirado says yes, everything is fine. The package is in the room.

"Next thing I hear is Tirado asking Joel to open the package. Joel says no, that he is in a hurry .... And then Tirado asked Joel, `How much are you going to pay me?' And Joel says, `Four hundred.' And the next thing I hear is money being counted out. Next thing I hear was, `Help me out.' And then the next thing I see, I see Joel come out with the package, putting it in the trunk."

Discussion. The defendant contends that Trooper Colon's recollection of the intercepted conversation was wrongly admitted because the wiretapping violated his rights under art. 14 of the Massachusetts Declaration of Rights. Article 14 guarantees freedom from unreasonable searches and seizures, and evidence obtained in violation of the provision has generally been held inadmissible.¹⁰ Commonwealth v. Blood, 400 Mass. 61, 62 n. 3, 507 N.E.2d 1029 (1987). A defendant is not entitled to the suppression of evidence, despite the lack of a warrant, unless he demonstrates that a "search" or "seizure" has occurred. Commonwealth v. Berry, 420 Mass. 95, 105, 648 N.E.2d 732 (1995), citing Commonwealth v. Pina, 406 Mass. 540, 544, 549 N.E.2d 106, cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 67 (1990). Whether government conduct constitutes a search or seizure depends on whether "the activity intruded on the defendant's reasonable expectation of privacy." Commonwealth v. Pina, supra. Once the defendant has established a reasonable expectation of privacy, the government must show that its warrantless search was reasonable and lawful. Id. A warrantless search cannot be reasonable unless the Commonwealth demonstrates probable cause and exigent circumstances. Commonwealth v. Ortiz, 376 Mass. 349, 353, 380 N.E.2d 669 (1978), citing Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974). "The essence of an exigency is the existence of circumstances known to the police which prevent them from taking the time to obtain a warrant because to do so would thwart . . . the arrest."...