Opinion
18-P-497
10-15-2019
COMMONWEALTH v. Benvindo ROCHA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction by a Superior Court jury of trafficking in heroin in violation of G. L. c. 94C, § 32E (c ). His sole contention on appeal is that a judge other than the trial judge erroneously denied his motion to suppress evidence seized when police officers executing warrants for the defendant's arrest searched the taxicab in which he was a passenger. We affirm.
Background. We summarize the judge's relevant and uncontested findings. On May 16, 2015, New Bedford narcotics detective John Lagoa observed the defendant, whom he knew from previous narcotics investigations, open the passenger door of a minivan taxicab to allow his girlfriend, Michelle Santiago, to enter the cab. After learning that there were four outstanding warrants for the defendant's arrest, Lagoa asked fellow detectives Edward Rene and Donald Williams to stop the cab and execute the warrants. Rene and Williams got behind the cab and activated their marked cruiser's lights and siren. The cab continued to travel for three or four blocks before pulling over.
Rene and Williams approached the minivan and observed the defendant seated in the middle of the three rows of seats, next to Santiago. They asked the defendant to exit the vehicle, arrested him on the warrants (of which the defendant was aware), and placed him in the back of the cruiser. The detectives then spoke with the cab driver, Augusto Gomes, who stated that he did not immediately pull over because he thought the officers were trying to stop someone else. According to Gomes, the defendant and Santiago were talking quietly with each other while the police were following the cab.
The officers then asked Santiago to exit the vehicle, and asked Gomes if they could search the cab. Gomes "unequivocally agreed" and did not limit where the officers could search. "[N]or did he indicate that he did not have authority to consent to search the cab." Neither the defendant nor Santiago objected as the officers asked Gomes for his permission, and then proceeded to search the passenger area of the cab while Gomes remained seated in the driver's seat. When Rene did not find anything in the passenger area, he moved to the last row, looked over the bench seat, and observed a black pouch in the cargo area of the van. Rene picked up the bag and felt "a ball and packaging"; contained inside the bag he saw what he believed to be heroin and prescription pills. Gomes, Santiago, and the defendant denied that the bag belonged to them.
The defendant was indicted for trafficking in heroin based on the contents of the black bag. Before trial, he filed a motion to suppress evidence that was accompanied by an affidavit in which he averred that (1) he was pulled over in a cab on the day in question, (2) he was arrested on outstanding warrants, (3) no contraband was discovered on his person, (4) he observed New Bedford police officers search the cab and recover a black bag from the cargo area, and (5) he "was advised that the bag contained suspected narcotics and that [he] was charged for them."
Following an evidentiary hearing at which the officers were the only witnesses, the judge concluded that Gomes voluntarily consented to the search because he "wanted to be certain his cab was free of contraband to protect him and any additional fares." The judge found that the officers' belief that Gomes consented to a search of the entire cab was reasonable because (1) "[i]t is incumbent upon a cab driver to provide safe passage for his fares," and (2) there was no evidence that the defendant or Santiago objected to any aspect of the search. Specifically, the judge noted the absence of any claim of privacy by the defendant in any area of the cab, either at the time the officers performed the search or in his affidavit in support of the motion to suppress. In any event, the judge held, the defendant abandoned the black bag by discarding it into the cargo area of the van, inferentially while the police were following it with their lights and siren activated.
Discussion. The defendant claims that the motion judge should have allowed the motion to suppress because Gomes "did not have the authority to consent to the search of the passenger compartment where ... Santiago continued to have an expectation of privacy." In reviewing the decision to deny the motion to suppress, we adopt the motion judge's findings absent clear error and "independently determine the correctness of [his] application of constitutional principles to the facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).
It is unclear why the defendant focuses on the passenger area of the van when nothing incriminating was discovered there. Nor has the defendant explained how he has standing to challenge the alleged infringement of Santiago's privacy rights. We decline to consider that issue because it was not raised before the motion judge. See Commonwealth v. Ware, 75 Mass. App. Ct. 220, 226 (2009). For the same reasons, we also decline to address the defendant's claims that there was no probable cause to order Santiago out of the cab or to search the cab once the detectives executed the arrest warrants, and that Gomes's consent was tainted by the officers' illegal exit order to Santiago.
"Police may conduct a warrantless search with the free and voluntary consent of a person possessing the ability and apparent authority to consent." Commonwealth v. Yehudi Y., 56 Mass. App. Ct. 812, 816 (2002). The defendant claims that Gomes had no ability to consent to a search of the entire cab because the defendant had a reasonable expectation of privacy in the passenger area. We assume without deciding that the defendant had an expectation of privacy in the cab because he was charged with trafficking (a possessory offense) and, therefore, had automatic standing to challenge the search. See Commonwealth v. Frazier, 410 Mass. 235, 243 (1991). See also Commonwealth v. Mubdi, 456 Mass. 385, 392 (2010) (defendant with automatic standing need not show that he has reasonable expectation of privacy in place searched). The defendant's claim still fails, because the record supports the judge's findings that Gomes (1) was employed by the cab company, (2) was in the cab when the defendant opened the door for Santiago, (3) pulled the cab over of his own accord, (4) did not indicate that he needed to contact anyone for permission to consent to a search, and (5) stayed in the cab while the officers performed the search. These facts amply support a conclusion that Gomes had common authority to consent to a search of the cab. See Commonwealth v. Ploude, 44 Mass. App. Ct. 137, 140-141 (1998) (defining common authority). The absence of evidence that the defendant ever claimed an expectation of privacy, in any area of the cab, supports a conclusion that Gomes was not "excluded specifically from a particular part of the premises," such that he lacked authority to consent to a search of the entire cab. Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 362 (1999). The judge did not err when he denied the motion to suppress.
We note, however, as the Commonwealth points out, that the defendant does not challenge the judge's conclusion of abandonment, and it is well settled that a defendant has no right of privacy in property he has abandoned. See, e.g., Commonwealth v. Perkins, 450 Mass. 834, 842 (2008) ; Commonwealth v. Bly, 448 Mass. 473, 490-491 (2007) ; Commonwealth v. Cabral, 69 Mass. App. Ct. 68, 72 (2007) ; Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 540 (2006).
Judgment affirmed.