COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SUPERIOR COURT
CRIMINAL ACTION
NO, 14-912
COMMONWEALTH
vs
WILSON ZAYAS.
EINDINGS OF FACT AND RULINGS OF LAW ON
DE *S MOTION TO SUPPI NCH
Defendant, Wilson Zayas (“Zayas”) was indicted on one count of Trafficking in a
Controlled Substance, Cocaine, in violation of G. L, ¢. 94C, § 32E (b) (4). Zayas now moves to
suppress all the items seized by United States Post Office Officials and the Springfield Police
‘Department, as well as statements he made to law enforcement on or about June 19, 2014,
B )F FACT
‘This prosecution arises out of the seizure on June 18, 2014 by Richard Tracy, a United
States postal office narcotics investigator of a package mailed to defendant at 93 Ashley St.,
Springfield, Massachusetts from Puerto Rico which was determined to contain cocaine, Tracy
fhad considerable training in illegal nateoties investigations whereby contraband was sent through
the mail. His training included certain characteristics of packages which would alert him to the
possibility of legal narcotics. This training included knowledge of certain places of origin
which would alert his suspicions. For example, packages mailed from California and Colorado,
due to the legalization of marijuana, are suspect. Another alert is excessive tape on a package
which inspectors believe is used in order to conceal narcotics odors likely to be detected by drug
sniffing dogs. Another alert is handwritten addresses, and where it is determined that the address
is bogus, or contains the name was not a true addressee living at that location, Another alert is
sreebeg En wong OORT BTOC-LT-BBEthe use of express or overnight mail which is deemed suspicious because the package will be in
the mail stream for a shorter period of time. Also, packages sent by express or overnight mail
may be tracked by the sender or recipient until delivery. On direct examination, Tracy did not
include in his list of suspicious factors that sometimes illegal narcotics are shipped to an innocent
‘unknowing addressee after which the true recipient will intercept the packaged drugs when they
are delivered to the innocent person’s address, On cross-examination, Tracy denied having been
involved in circumstance where an innocent addressee has been identified us a “victim.” Tracy's
denial contradicted his sworn testimony before the grand jury where he testified he was aware of
this “victim” addressee scenario, When confronted with his grand jury testimony, Tracy
acknowledged he was aware of this practice and that such a “victim” would have no idea that the
package contained illegal drugs when retrieving it from the post office.
On the date in question, Tracy identified a box which is the subject of this motion
addressed to the defendant by hand and sent by express mail from Puerto Rico. Tracy determined
that the cardboard box had excessive tape in that atleast one comer of the box was covered with
what appears to be two or 3 inch wide clear tape. The comers of the box were not openings in the
box and this aroused Tracy suspicions. The flaps to the box openings were also taped. From a
photograph of the box (Exhibit 1) 1 cannot determine whether more than one comer of the box
‘was taped, It appears that the bottom comer of the box depicted in the photograph is not taped as
itis plainly damaged. The box itself was not offered in evidence. The box came to Tracy's
attention when it arrived at the Springfield bulk mail center in the Indian Orchard section of the
city, Tracy pulled the package from the mail stream and placed it in his car driving it to the
downtown Springfield main post office location. Tracy placed the box in his office and called
Massachusetts state trooper Michael Baxter who was assigned to a K-9 unit. Shortly thereafter,
steo8ed Bese wosy — ZORTSTOC-LT- 8dtrooper Baxter arrived. He followed his usual dog sniff procedure, He and Tracy placed five
empty boxes on the floor along the wall. Since the boxes were empty, they would be no
substance emanating an odor of any kind which a dog would detect, otber than the awner of a
person handling the box. The boxes were of different sizes und had been handled previously by
others performing the same drill. A K-9 sniffed all five boxes and was not alerted to any
narcotics in any box. The dog was trained in detecting the order of illegal narcotics. After the
dog was removed from the area, the subject package was substituted for one of the five empty
boxes. Thus, the only box containing an object which would give off distinct odor for the dog
to detect was the subject box. The dog was retumed to the room and was directed to sniff the
boxes again, The K-9 was alerted to the subject package by scratching and biting it. Based upon
this exercise, Baxter and inspector Tracy formed an opinion that the box contained illegal
narcotics, In the meantime, the post office had received a local telephone inquiry as to the
whereabouts of the package, The caller left a message that he would call back, The following.
day, Tracy drove to the address on the label to conduct surveillance, He waited until the regular
letter carrier approached the house at 93 Ashley St. hoping to see whether or not a person would
approach the letter carrier to inquire about the package. Tracy observed a male, whom he later
identified as the defendant, sitting on the front porch when the letter carrier approach. The male
petson on the porch did not approach the letter carrier when he placed mail in the mailbox. As
part of his investigation, Tracy determined that defendant named on the address label did reside
at this address, Later that day, a phone call was placed to the number left by the person who
called the post office the previous day advising that the package could be picked up at the
downtown Springfield post office, Jn anticipation of a person arriving to retrieve the package,
‘Tracy acted as an undercover postal clerk dressing in jeans und a T-shirt which was the usual
geting a wong QUT STO-LT- Edgarb for a postal clerk who would retrieve packages and bring them to the counter. Tracy also
arrange to have on hand Timothy Irving who worked for the Department of Homeland Secu
A DVD was introduced in evidence created from security cameras located in the post office
lobby which captured the events which followed, When defendant antived to treat the package,
‘Tracy gave him the package. Before this happened, Irving can be seen placing himself near the
front door so he would be in a position (o intercept defendant when he left the lobby. Irving was
not in uniform. Irving blocked defendant's path to the exit door from the lobby. Tracy is seen on
the video approaching defendant as well. From defendant's body movements and demeanor as he
is confronted, captured on video, defendant acts surprised by the encounter. Irving is seen taking
the package from defendant. Tracy’s testified that he then advised defendant that he wanted to
talk to him about the box and that the defendant said “okay.” Defendant told Tracy that the
package contain motorcyele parts sent to him from his grandmother. Neither Tracy nor Irving
told defendant why they wanted to discuss the package with him. Tracy testified that he told
defendant he would like to bring him in the back to talk to him, and advised him he was not
under arrest and that he was free to leave but that he could not take the box with them, Tracy
describe this as a “very friendly encounter” and that defendant was “very weloming” in
response to the invitation to go to the back of the post office.” Tracy's characterization of the
encounter is inconsistent with what is depicted in the video where defendant is acting in a
somewhat animated fashion, 1 conclude that defendant appears unhappy and does not appear to
bbe “welcoming” in response to his encounter with Tracy and Irving. Defendant was heading out
the door of the lobby when his path was blocked by Irving. Irving initiated physical contact with
defendant, The video shows Irving and Tracy then escorting defendant out of the lobby to
another room in the post office. Based upon my review of the video, I do not credit ‘Tracy's
susebeg coma morg — @OZT STOR-LT-8Hdtestimony that defendant's encounter with him and Irving was a “very friendly encounter.” I
conclude the encounter was sudden, unexpected and that is was an unpleasant and unwelcome
encounter. T do not believe that defendant believed he was free to leave, and conclude defendant
did not accompany Tracy and Irving from the lobby to an interview room freely willingly and
voluntarily, and that defendant was effectively seized,
Defendant was walked down a hall to an office approximately 150 feet from the lobby.
Defendant was not constrained. He was seated at a table in a so-called “break room,” Irving and
‘Tracy were in the room as well, Tracy explained who he and Irving were, Defendant reiterated
that he believed the package contain motoreycle parts mailed to him from his grandmother. He
also said that his English was not good. He was offered an interpreter which he accepted. AAt that
point Tracy culled the state police and asked for a Spanish speaking trooper to come over, Within
20 to 25 minutes, ‘Trooper Luis Rodriguez and two other state troopers arrived. While waiting for
the trooper, neither Tracy nor Irving questioned defendant. According to ‘Tracy, they just sat with
hhim and offered him water. Defendant was not advised that he was free to leave. When Trooper
Rodriguez, arrived he met with defendant in the same room which also contained Tracy and
Irving and the two other state troopers. An experienced trooper, Rodriguez had often been called
in to similar situations where the person detained or to be interviewed with Spanish-speaking
‘Tho interview was not videotaped nor was an audio recording created. Rodigues first read to
defendant his Miranda tights in Spanish, When asked by Rodriguez, defendant told him that he
understood his tights and he agreed to sign a Miranda form setting forth in Spanish the Miranda
rights, Defendant signed the form which was witnessed by Rodriguez. Rodriguez knew nothing
about defendant’s background, his intellect, mental capacity or his ability to understand and
ougesea ——. wary TET OWe-cT-aacomprehend the rights read (o him. Rodriguez, read the form line by line and “stuck by the form”
when he read defendant his rights.
Rodriguez also discussed with defendant a consent form which would permit them to
‘open the package and examine its contents. The form, Exxhibit 10, is written in English rather
‘than Spanish. Trooper Rodriguez read the form to defendant in Spanish after which defendant
agreed to sign the form and did so.
It is not clear to me whether the package was opened before or ufter trooper Rodriguez's
interview of defendant after defendant signed the Miranda waiver, Rodriguez. did not see the
package opened at the post office where his first interview of defendant took place, The package
‘was opened in defendant's presence and he did not object or otherwise attempt to withdraw the
consent he had given. The package was opened and found to contain a number of children’s toys
as well as a black ball covered with black electrical tape, A knit was used to pierce the black
electrical tape. A white powdery substance was extracted from the ball which appear to be
cocaine,
‘When questioned by Rodrigues, either before or after the package was open, defendant
stated that this was his first time he was involved with drugs, He said he was offered $1000 to
receive the package and that he knew it was drugs. Rodriguez did not raise his voice nor did he
use a course of threatening tone with defendant, The interview was brief, Defondant was not
placed in cuffs or otherwise restrained, Defendant was placed under arrest and transported to the
state police barracks on Armory Street.
Later in the day at approximately 6 PM, Rodriguez encountered defendant a second time
in a holding cell. Rodriguez, was ordered {o do this but he does not recall who give the order,
Rodriguez asked defendant whether defendant would consent to a second interview audio and
oricebeg = wong TERT 9102-L1-a8svisually recorded. Defendant declined, Rodriguez again read defendant his Miranda rights. He
did not use « written form as he hud done earlier in the day when he was ut the post oftice with
dofendant, He believes he read the Miranda rights from a card he usually carries, Defendant did
not sign a written waiver of his Miranda rights during the second interview. Rodriguez did not
ask defendant during the second interview whether he understood his rights, whether he waived
his rights, or was he willing to be interviewed further by Rodriguez, Rodriguez erented a
“supplemental” report (Exhibit 11), a one-page document with six numbered paragraphs.
Paragraphs 1 through 4 and 6 are written by Rodriguez in the first person, Paragraph 5 was
varitten by Rodriguez but it reads as if it was written by defendant in the first person. In
paragraph 5, defendant admits that he received an offer of $1000 for the delivery of « package
from Puerto Rico, that his acquaintance, José Dias, a “street level dealer” negotiated the drug
dealer, and that he went to the post offi
¢ to retrieve the package in his name. Rodriguez
conceded that his “supplemental” report was created in an unorthodox manner given that it
purports fo contain both his statements and the defendant statements, and that he has adopted this
practice in order to “save time.”
Seizure of Zayas’ Person
Zayas argues that the police arrested him without probable cause when they stopped him
from leaving the post office and escorted him to a room in the building for questioning, The
Commonwealth characterizes the encounter as a Terry stop and argues that Zayas was free 10 go
‘and went willingly to speak with the officers,
syeieseg — iosg — EPRTOTOR-AT-aReA, Terry Stop v, Seizure and Arrest
It is well settled that an officer may stop an individual to conduct a “threshold inquiry where
suspicious conduct gives the officer reason to suspect that a person has committed, is
committing, of is about to commit a crime.” Commonwealth v. Waison, 430 Mass. 725, 729
(2000), quoting Commonwealth v, Kennedy, 426 Mass, 703, 710-711 (1998). This threshold
inquity, often referred to as a Terry stop, must be based on reasonable suspicion. Watson, 430
Mass. at 729, An officer cannot rely on a “hunch or good faith, but inferences can follow in light
of the officer's experience.” Je, “The permissible seape of the threshold inquiry is determined
by looking to the length of the encounter, the nature of the inquiry, the possibility of Night, and
danger to the safety of the officers.” Commonwealth v. Williams, 422 Mass. 111, 118 (1996)
Conversely, under Article XIV of the Massachusetts Declaration of Rights, a person is said to
be seized if, considering the totality of the circumstances, a reasonable person would not believe
that they are free to leave, Cummonwealth v. Stoute, 422 Mass, 782, 786 (1996). “There is no
‘magic in the word arrest and an arrest may occur even ifthe police do not make a formal arrest.”
Commonwealth v. Sanderson, 398 Mass, 761, 766 (1986) (internal quotations omitted), “To
determine whether the police action is tantamount to an arrest, itis mevessary to consider the
degree fo which the defendant’s movement is restrained, the degree of force used by the police,
and the extent of the intrusion.” 1d.
| cannot ascribe to the Commonwealth's characterization of the encounter as a Terry stop.
Considering the totality of the circumstances, | find that the officers exceeded the scope of a
threshold inquiry. ‘The officers had reasonable suspicion, based on years of experience
investigating narcotics trafficking, to believe that Zayas had been mailed a package containing
iMlegal drugs, but that it was possible Zayas was an innocent addressee vietim. The encounter,
stye980g ecmeoER wosg — ZEZT STOR-LT-aEhowever, lasted for a substantial period of time; during such time Officer Tracy obtained a
Spanish-speaking officer; read Zayas his rights under Miranda; opened and examined the
package; and conducted an interview. This far exceeds the scope of a threshold inquiry.
Further, it does not appear that Zayas was a flight risk at any point. While the nature of the
inquiry is very serious, Zayas never displayed any aggression toward the officers that would
necessitate a longer detention. In fact, the Commonwealth claims that the encounter was
“ftiendly.” The evidence, however, simply does not support the assertion that Zayas was
subjected to a threshold inquiry and nothing more.
On the contrary, Zayas’ detention was effectively an arrest. Zayas was removed from the
location of the initial stop and taken to a back room in a government building, Additionally,
Zayas was detained for a significant period of time before the officers formally arrested hirn, See
Sanderson, 398 Mass. al 766 (finding that defendant was arrested when he was detained for forty
minutes before formal arrest), Further, up to six law-enforcement officials were present in the
‘oom, Such a significant show of foroc is consistent with conditions of arrest, See id, (presence
of six police officers at stop a factor in determining Terry stop had become an arrest)
Additionally, the extent of the intrusion exceeded that of an initial stop. The questioning
extended far into the investigatory process, such that Zayas produced a confession, Zayas was
questioned extensively as to the contents of the package and the circumstances surrounding it
‘The officers did not limit the questioning to initial inquires. See Commonwealth v. Murphy, 63
Mass, App. Ct. 11, 19 (2008) (roferring to circumstances in which an officer may request
identification, but nothing more, during a threshold inquiry)
A reasonable person who is confronted by law enforcement, escorted to a secluded room, and
asked (0 waive one’s constitutional rights would not reasonably believe that he or she was free (0
stories ‘omens, org pret ovo~Ltasago. Accordingly, Zayas was arrested and the analysis turns to whether the officers had probable
‘cause to arrest him.
B Probable Cause to Arrest
“There is probable cause to arrest a suspect if at the moment of arrest, the facts and
circumstances within the knowledge of the police are enough to warrant a prudent person in
believing that the individual arrested has committed ... an offense...” Matter of Grand Jury
Investigation, 427 Mass, 221, 224 (1998) (intetnal citations omitted).
At the moment of arrest, the officers knew that Zayas had arrived at the post office to receive
‘a package addressed to him from Puerto Rico, and little more. Officer Tracy testified that based
‘on his years of experience he concluded that the package’s appearance was consistent with
packages containing drugs, With this limited information, he employed a narcotie-sniffing doy,
‘The dog alerted to Zayas” package, The package in question, however, was the only one with
anything inside, and thus, the only package likely to give off any smell at all. The drug dog's
alert was the only additional information weighing in favor of a finding of probable cause,
Officer Travy did not provide any information as to the dog's reliability, and gave no information
as to the dog's certification, training, or rate of false positives, See Commonwealth v. Ramos, 72
Mass. App. Ct. 773, 778 (2008) (“In the present circumstance in which the positive alert of a
drug-detoction dog furnishes the essential support for the probable cause finding, the hearing
Judge will consider information withheld from the warrant judge or magistrate which tends to
subtract from the reliability of the dog's performance.”); ef, Watson, 430 Mass. at 735 (upholding
a warrant to search where the affidavit included information as to dog and handler’s certification
aay well as dog's experience in drug sniffing). Accordingly, the dog’s alert lends little support to
the Commonwealth's position, At the moment Zayas was detained against his will and brought
arnrebeq enaamamed mory — @PLTSTOR-LT-aaato the room in the post office, officers had nothing more than reasonable suspicion that the
package may contain illegal drugs. ‘Thus, Zayas’ arrest was not supported by probable cause and
the evidence collected as a result of his attest must be suppressed,
Tl Search and Seizure of Postal Package
‘The fruit of the poisonous tree doctrine states that when evidence is obtained as a result of a
constitutional violation, that evidence is not admissible at trial. Commonwealth v. Damiano, 444
Mass, 444, 453 (2005), “In determining whether evidence obtained after such a violation must be
suppressed, the issue is not whether ‘but for’ the prior illegality the evidence would not have
been obtained, but ‘whether... the evidence . . . has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the primary taint." /d.,
citing Commonwealth v, Bradshaw, 385 Mass, 244, 258 (1982), quoting Wong Sun v, United
States, 371 U.S. 471, 488 (1963) (intemal brackets omitted). The Commonweulth carries the
burden of proving that the evidence at issue is untainted by the prior illegality. Damiano, 444
Mass, at 454, The Supreme Judicial Court recognizes three exceptions to the fruit of the
poisonous tree doctrine: independent source; attenuation; and inevitable discovery.
Commonwealth v. Benvit, 382 Mass. 210, 216 (1981); Commonwealth v. O'Connor, 406 Mass.
112, 113 (1989). None of these exceptions apply to the instant case, thus, the evidence obtained
in the postal package must be suppressed,
In the case at bar, the package was seized after Zayas’ illegal arrest, The officers exploited
the circumstances of Zayas’ detention in order to seize the package. Accordingly, the evidence
contained in the package was obtained as a result of the officer's constitutional violation.
‘The burden now shifts to the Commonwealth to show that the evidence is untainted pursuant
ta recognized exception, Damiano, 444 Mass, at 454, The Commonwealth, however, is unable
u
ouersbeg ee wong BT RTSTOC-LT-€8Eto sustain its burden, The Commonwealth had no additional information on the illegal nature of
the contents, and does not point to any independent source for obtaining the evidence.
‘Accordingly, the facts do not support a finding that the evidence was discovered through an
independent source.
‘Additionally, 1 find no basis to believe (hat the evidence was subject to inevitable discovery.
See Damiano, 444 Mass. at 454, When Zayas was arrested, the officers only had n reasonable
suspicion that the package contained illegal drugs, Reasonable suspicion falls below the standard
required for a finding of probable cause. Commonwealth v. Cruz, 459 Mass. 459, 478 (2011).
‘The Commonwealth, therefore, cannot successfully argue that even if Zayas had not been
detained, the officers had sufficient probable cause and would have abtained a warrant fo search
the package.
Similarly, the Commonwealth is unable to show thatthe illegal arrest and evidence recovery
‘were so attenuated that any illegal taint was cured by the attenuation, Rather than attenuation,
these facts show that the evidence was seized concutrent with the illegal activity. Accordingly,
‘the package and its contents must be suppressed.
IIL. Waiver of Rights Under Miranda
Finally, Zayas moves to suppress all statements made to law enforcement arguing that his
waiver was not knowing and voluntary, The Commonwealth asserts that Zayas executed a valid
waiver of rights and his statements may be submitted as evidence against him.
Zayas statements, like the deugs recovered from the package, are fruits of his illegal arrest,
Law enforcement exploited Zayas’ detention to obtain his statements. Like the package, the
statements are not subject to one of the recognized exceptions. As such, they must be suppressed.
For the sake of thorough analysis, however, I will discuss the validity of Zayas! waiver.
12
ouerebeg EER oxy PERT OIe-4t-€aaThe burden is on the Commonwealth to prove, beyond a reasonable doubt, that Zayas waived
his rights under Miranda, Commonwealth v. Day, 387 Mass. 915, 920-921 (1983). “To be valid
the waiver must be made voluntarily, knowingly, and intelligently.” Commonwealth v. Edwards,
420 Mass, 666, 670 (1995), citing Miranda v, Arizona, 384 U.S, 436 (1966), The voluntary
nature ofa waiver is assessed considering the totality of the circumstances, Jd. at 671. “Relevant.
factors include, but are not limited to, promises or other inducements, conduct of the defendant,
the defendant's age, education, intelligence and emotional stability, experience with and in the
criminal justice system, physical and mental condition, the initiator of'the discussion of a deal ot
leniency (whether the defendant or the police), and the details of the interrogation, including the
recitation of Miranda warnings.” Commonwealth v. Selby, 420 Mass, 656, 663 (1995), quoting
Commonwealth v, Mandile, 397 Mass, 410, 413 (1986).
Zayas made two statements to the police, He spoke with the officers at the post office and
again at the police barracks. | find that the Commonwealth did not meet its burden of proving a
valid waiver of rights beyond a reasonable doubt in either instance. The Commonwealth asserts
that Zayas signed a Miranda waiver at the post office; however, no additional evidence bolsters,
the Commonwealth's claim. To the contrary, Zayas had no previous experience with law
enforcement, speaks English as a second language, and did not initiate the conversation with
police, Further, the details of the interrogation reveal that, during the first interview, Zayas was
illegally detained, in a secluded room, with many officers present,
‘The second interview began after Zayas declined to participate in another conversation with
the officers. Despite his refusal, the officers conducted a second interview, Before the second
interview, Officer Rodriguez claims to have read Zayas his rights, however, Zayas never signed
«an additional waiver form and the interview was neither video taped nor audio recorded, Finally,
3
ourrsbeg F eenenl word PEZT S1OR-LT-a8aOfficer Rodriguez did not take exact statements from Zayas, but paraphrased for the sake of
expediency,
Because the defendant was advised of, and alleged to have waived, the Miranda rights,
the issue becomes whether the Commonwealth has proved “the validity of a Miranda waiver
beyond a reasonable doubt.” Commonwealth v, Edwards, 420 Mass, 666, 669 (1995). See
Commonwealth v. LeBeau, 451 Mass, 244, 254-255 (2008), "To be valid the waiver must be
made voluntarily, knowingly, and intelligently." Edwards, supra at 670, "In determining
whether a waiver was made voluntarily, the court must examine the totality of the circumstances
surrounding the making of the waiver." Jd, "Relevant fictors to consider include, but are not
limited to, ‘promises or other inducements, conduct of the defendant, the defendant's age,
education, intelligence, and emotional stability, experience with and in the criminal justice
system, physical and mental condition, the initiator of a deal or leniency (whether the defendant
‘or police), and the details of the interrogation, including the recitation of Miranda warnings."
Commonwealth v. Jackson, 432 Mass. 82, 86 (2000), quoting Commonwealth v. Mandile, 397
Mass, 410, 413 (1986).
Based upon the circumstances of this second interview, T am not convinced that beyond a
reasonable doubt that defendant freely willingly and voluntarily waived his Miranda rights,
Contrast Commonwealth v. Melo, SIC-11513 (July 23, 2015) (“The defendant signed the
notification of rights form, which expressly indicates that the person signing understands the
Miranda rights and ‘knowingly waivefs}* those rights; heard the recitation of the Miranda
‘warnings; and nodded, which reasonably could be inferred as indicating that he understood them.
Thereafter, he engaged in discussion with the officers. ‘This conduct hardly expressed an
unwillingness to continue speaking with police that could be ‘considered tantamount (o the
4
syatefeg —_———, MOY QURT OLOZ“L TAexercise of the right to remain silent.’ Commonwealth v. Garcia, 443 Mass. 824, 833 (2008),
quoting Commonwealth v, Selby, 420 Mass, 656, 662 (1995). ”
“The burden rests on the Commonwealth to prove waiver beyond a reasonuble doubt, The
Commonwealth has not met its burden. Accordingly, Zayas statements to the police are
suppressed.
ORDER
For the foregoing reasons it is ORDERED that Zayas’ Motion to Suppress is
five of the Superior Court
15
susrebea <—=ees. mor QTR g102-cI-aEa