COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
NO. 2016-P-0466
COMMONWEALTH OF MASSACHUSETTS,
Appellant
V.
ANTHONY ORTIZ
Defendant-Appellee
HAMPDEN COUNTY
Anthony d. gulluni
District Attorney For
The Hampden District
September 8, 2016
TABLE OF CONTENTS
Table of Authorities...............................ii
Argument .......................................... 9
Conclusion......................................... 21
Addendum........................................... Add/1
Commonwealth v. Burgess,
434 Mass. 307 (2001).............................. 13
Commonwealth v, Buswell,
468 Mass. 92 (2014)............................... 11
Commonwealth v. Cantalupo,
380 Mass. 173 (1980).......................... 15, 20
Commonwealth v, Caputa,
439 Mass. 153 (2003).............................. 17
Commonwealth v. Carr,
448 Mass. 295 (2010).............................. 11
Commonwealth v. Carr,
458 Mass. 295 (2010).............................. 12
Commonwealth v. Conway,
2 Mass. App. Ct. 547 (1974)....................... 20
Commonwealth v. Douglas,
472 Mass. 439 (2015)................................ 3
Commonwealth v. Ellerbe,
430 Mass. 769 (2000).............................. 10
Commonwealth v, Farnsworth,
76 Mass. App. Ct. 87 (2010)................... 14, 16
Commonwealth v. Franco,
419 Mass. 635 (1995).............................. 18
Commonwealth v. Gaynor,
443 Mass. 245 (2005).......................... 14, 16
Commonwealth v. Gonzalez,
60 Mass. App. Ct. 903 (2003)...................... 19
ii
Commonwealth v. Jiminez,
438 Mass. 213 (2002).. 10
Commonwealth v. Jones-Pannell,
472 Mass. 429 (2015)............................... 3
Commonwealth v. LaBriola,
370 Mass. 366 (1976)............................. 12
Commonwealth v. Mercado,
422 Mass. 367 (1996)............................. 10
Commonwealth v. Sanna,
424 Mass. 92 (1997)........................... 11, 19
Commonwealth v. Santana,
420 Mass. 205 (1995).............................. 10
Commonwealth v. Santiago,
"53 Mass. App. Ct. 567 (2002)...................... 19
Commonwealth v. Scott,
440 Mass. 642 (2004).............................. 10
Commonwealth v. Stewart,
469 Mass. 257 (2014).............................. 17
Commonwealth v. Wallace,
70 Mass. App. Ct. 757 (2008)...................... 11
Florida v. Jimeno,
500 U.S. 248 (1991).................... 9, 14, 16, 18
Miranda v. Arizona,
384 U.S. 436 (1966) ............................... 8
Schneckloth v. Bustamonte,
412 U.S. 218 (1973)............................... 11
State v. Arroyo-Sotelo,
884 P. 2d 901 (Or. App. Ct. 1994).................. 17
State v. Lopez,
723 S.E. 2d 164 (N.C. Ct. App. 2012)...... 15, 16, 17
ill
State v. Troxell,
78 S.W. 3d 866 (2002)..................... 13, 14, 15
Statutes
Rules
Constitional Provisions
Other Authorities
iv
ISSUE PRESENTED
2
Massachusetts Supreme Judicial Court for Suffolk
3
On January 23, 2015 at approximately 6 p.m.,
[Add/6; T/69].
9
findings of fact absent clear error 'but conduct[s] an
be reversed.
10
T/27]. Detective Hamel then proceeded to search the
T/57-58].
92, 99 (1997).
11
factor by itself is conclusive, factors to consider
12
Moreover, he had experience with the court system as
13
vehicle. See id. After observing that the gas tank
station. See id.. The gas tank was then removed and
the phrase "in the vehicle" did not include "in the
15
citing Jimeno, 500 U.S. at 251 (where officer "asked,
F.3d 529, 534 (4th Cir. 2004), cert, denied, 541 U.S.
16
as he searched in the various locations, and never
the search, and the defendant did not obj ect to any
during the search of the vehicle and his words and his
authority." [Add/8].
quotations omitted).
19
suppressed, the defendant's statement was not the
20
CONCLUSION
Respectfully submitted,
THE COMMONWEALTH
ANTHONY D. GULLUNI
DISTRICT ATTORNEY
HAMPDEN DISTRICT
21
CERTIFICATE OF COMPLIANCE WITH MASS. R. APP. P. 16 (k)
CERTIFICATE OF SERVICE
Date:
HAMPDEN DISTRICT
22
COMMONWEALTH OF MASSACHUSETTS
VS.
On March. 25, 2015, a Hampden Comity Grand Jury charged Anthony Ortiz
violation, of G. L-; c. 269, 10 (h), and one count of receiving, stolen property, in violation of
G. L. c. 266, 60. Defendant now moves pursuant to Rule 13 of the Massachusetts Rules of
Criminal Procedure, the Fourth and Fourteenth Amendments to the United- States Constitution,
and Articles 12 and 14 of the Massachusetts Declaration of Rights, to suppress all.items seized
following a motor vehicle stop by officers of the Holyoke Police Department on January 23,
2015, and statements made by defendant while in custody as fruits of the poisonous tree.
BINDINGS
On January 23, 2015, at approximately 6 pun., Holyoke Police Officer Jared Hamel
(Hamel) was on patrol in an unmarked police cruiser with his partner, Detective Boyle
(
8s>:6^9A0NST:
(Boyle*) (collectively the officers)- While they were traveling on Center Street, they heard
loud music which they believed was coming from either an apartment or a vehicle. In particular,
they noticed the loud base thumping sound coming from an unknown source. Both officers
Add/1
were not in-uniform, but they were wearing their police badges. This neighborhood is the flats
section of town, which is a high crime area known for gang activity, illegal narcotics, and
multiple shootings. These officers* were called to this section of town on a regular basis. The La
Familia and the Flatbush gangs regularly preside in tins area. These officers encountered a brown
Honda motor vehicle (the vehicle") from which the loud music was playing. As the officers ap
proached the vehicle, the occupants lowered the volume of the music considerably. The of
ficers could see two individuals, and possibly a third, within the vehicle. The officers de
termined that the loud thumping music emanating from the vehicle posed a public safety haz
ard. A City of Holyoke ordinance prohibits excessively loud music in a motor vehicle, so that
operators can hear emergency vehicle sirens. At this point, Hamel initiated the stop.
Once the cruiser lights were activated, the volume of the music was turned down, the
operator pulled the vehicle over, the officers pulled their cruiser behind the vehicle, and the
officers exited the cruiser. Hamel approached the drivers side and Boyle approached the
passengers side of the vehicle. Hamel recognized the driver, who had previously been involved
in a foot chase following an incident where he was arrested for breaking into an apartment. Ha
mel also remembered defendant because of two separate incidents where defendant was charged
Upon recognizing defendant, Hamel radioed for another unit to provide assistance for
safety reasons. Hamel asked defendant to produce his license and registration. In response,
defendant looked at Hamel who noticed that defendant spoke just Ka little English. Defendant
turned to the front passenger for assistance. Hamel also recognized the passenger, George Ortiz
Add/2
(Ortiz), from previous incidents. Hamel recalled an incident in which officers executed a
Hamel understood that Ortiz translated Hamels requests for defendants benefit Hamel
believed that defendant was confused with the request when he heard Ortiz speak in Spanish to
defendant From his previous encounters with defendant, Hamel recalled that "he only spoke a
little English. Defendant handed a Massachusetts identification card to Hamel that was not a
drivers license. The identification card confirmed that the driver was defendant At that point
Hamel noticed that Ortiz and a second passenger were not wearing seatbelts. Hamel did not
make a second request to see defendants drivers license. Rather, Hamel asked both of the
passengers if either had a drivers license and neither did. Since neither the defendant nor fee two
passengers had a valid Massachusetts drivers license, Hamel determined feat none of the three
occupants could drive fee vehicle, so fee officers would have to impound it Hamel believed that
he could have placed defendant under arrest for operating without a license, but did not because
he had not decided whether to arrest defendant for this reason, or to issue a complaint against
him, The Holyoke Police Department policies and procedures require an officer to impound a
motor vehicle and conduct an inventory of the contents of the vehicle when there is no
At this point, Hamel asked defendant if there was anything in the vehicle fee police
should know about including narcotics or firearms. Defendant responded "no, you can check.
Hamel did not know if it was necessary for Ortiz to translate Hamels question to defendant, but
he recalls' feat he did not hear Ortiz say anything to defendant Defendant did not hesitate or
stumble on Ids words when he responded to Hamel. Defendant answered in imperfect English.
3
Add/3
The officers, none of whom spoke any Spanish, did not call for a Spanish-speaking officer to
come to the scene to assist in translation. Based upon this response, Hamel asked defendant and
the other two passengers to exit the vehicle and all were placed in handcuffs.1 At this point, none
of the occupants were allowed to leave the scene and all remained compliant. The occupants
were pat frisked for weapons and none were found. The third passenger, Negron, had a small
amount of marijuana. Additionally, the officers found a large amount of cash and some ma
rijuana on Ortiz.
Shortly thereafter, other officers arrived at the scene to assist with a K>9 unit One of the
officers walked the dog around the vehicle, but the dog did not alert to anything. The officers
searched the front and back seats of the vehicle, but found no contraband. The officers were no
longer concerned for their safety with the occupants placed in handcuffs and no weapons or
contraband present. Hamel then instructed one of the officers to check under the hood of the
vehicle.1
2 *The
4 officers raised the hood of the vehicle as defendant and the two passengers stood
off to the side of the road. At no point did defendant voice his objection. After a few minutes,
Boyle alerted Hamel that he found a black bag in the air filter containing two firearms. The black
bag with the firearms was not noticeable until after the officer removed the air filter under the
hood of the vehicle. At no time did defendant or the other two occupants make any furtive
1 On direct examination, Hamel testified that defendant end the passengers were net placed in handcofis. On cross-
examination, after refreshing his memory, by looking at his written report, Hamel agreed that all were placed in
handcuffs upon exiting the vehicle.
2 Hamel directed die officer to search under the hood because he had recently heard of an investigation where
Holyoke police officers had received a tip from a reliable informant that narcotics were hidden in fee air filter of a
vehicle, but fee narcotics were never located because fee officers fed not check under fee hood.
Add/4
movements, which would have caused the officers to suspect that they were attempting to hide
something.
At this point, the officers overheard Ortiz volunteer that defendant wanted to claim that
the guns were his because he did not want the others to get in trouble. Hamel did not hear
defendant; but lie advised Ortiz that defendant can make a statement when he gets to the station.
Defendant and the two passengers were arrested after the discovery of the firearms and were
transported to the police department by cruiser. Defendant was not arrested for any driving
A few minutes latex, the registered owner of the vehicle arrived and was allowed to drive
the vehicle away. It never became necessary to tow the vehicle, and the search performed by the
officers was done based upon the officers contention that defendant had consented. They did not
consider this an inventory search, nor did they believe that there were exigent circumstances
assisted in the taking of defendants statement Monsalve believes that defendant understands
English, but that he feels more comfortable with the Spanish language, Monsalve read the
defendant his Miranda rights in Spanish and witnessed the defendant sign his name waiving his
rights. Defendant provided a written and audio-recorded statement In it, he admitted that he was
in the vehicle when he saw the officers, he attempted to turn the radio off prior to the motor
vehicle stop, he did not have a drivers license to operate the vehicle, and he admitted to giving
Add/5
consent to the officers to look in his vehicle. Defendant further admitted that the firearms found
DISCUSSION
1. Suppression ofthe weapons
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). Whether consent is free and voluntary is determined from the totality
of the circumstances present at the time the consent is given. Commonwealth v. Aguiar, 370
Mass. 490,496 (1976). The Commonwealth has the burden of establishing that the consent was
unfettered by coercion, express ox implied, and also something more than mere acquiescence to
a claim of lawful authority. Commonwealth v. Voisine, 414 Mass. 772, 783 (1993) (internal
conclusive. Commonwealth v. Carr, 458 Mass. 295, 302 (2010). The factors to consider
include, but are not limited to: the presence of armed, .uniformed officers; whether 0 defendant
was informed of his right to refuse consent; the age, intelligence, and other personal
characteristics of Q defendant; and whether the defendant was in custody when consent was giv
en./*
In this case, defendant consented in the presence of two officers who were not in
uniform. Defendant was not informed of his right to refuse consent, but was not in custody at the
time he consented to the search of the vehicle and was not asked a question by Hamel that
provoked a response granting consent Defendant gave consent quickly and freely without any
6 .
Add/6
pressure by tbe officers. The language barrier between Hamel and defendant creates a unique
circumstance, but not one that establishes defendants mere acquiescence to a claim of lawful
authority. Therefore, the Commonwealth has met its burden that defendant's initial consent was
The next issue is whether the scope of defendant's consent was limited in any way. MA
determination of the scope of consent is necessarily dependent on the particular facts of each
. case. Commonwealth v. Thomas, 67 Mass. App. Ct 738, 741 (2006). The standard for
measuring a suspect's consent under the Fourth Amendment to the United States Constitution is
that of 'objective* reasonableness - what would the typical reasonable person have understood
by the exchange between the officer and the suspect? Commonwealth v. Gaynor, 443 Mass.
245, 255 (2005), quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991) (internal brackets and
quotation marks omitted). The scope of the defendants consent is ordinarily understood to refer
to the scope of the search, and is defined by the areas, objects or things for which consent is giv
The parties have not directed my attention, and I have not found, any Massachusetts case
law that directly deals with this issue. The Supreme Court of Tennessee declared that the words
in the vehicle, when referring to a question precipitating a consented-to search for firearms,
only encompasses the vehicle's interior or cab. State v. Troxell, 78 S.W,3d 866, 872 (2002)
(where officer asked defendant any weapons in the vehicle, and requested consent to search,
scope of consent was limited to interior of vehicle and not under vehicle or in gas tank). This
case law is not precedent, but I find the reasoning quite persuasive. Here, Hamel was asking
defendant whether he had any narcotics or firearms in the vehicle. Hamel asked the question and
7
Add/7
received consent while defendant was seated in the cabin of the vehicle. I find that the scope of
the consent was therefore limited to a search of narcotics or firearms in the cabin or interior of
the vehicle and not under the hood beneath the air filter, A typical reasonable person, perceiving
the verbal exchange between defendant and Hamel, would believe that defendant was limiting
the scope of the search to the cabin of the vehicle. See Gaynor, 443 Mass, at 255.
spoke Spanish. The entire exchange preceding the consent was accomplished using Ortiz as an
interpreter. Hamel was certainly acting in good faith, but the feet that a Spanish-speaking driver
gave consent to search the vehicle in English should have raised concerns and should have
prompted Hamel to take necessary precautions. Accordingly, the search of the air filter under fee
vehicles hood was beyond the scope of defendants consent and feus unconstitutional.
Regardless of whether the scope of fee search was limited to the cabin of fee vehicle, the
Commonwealth has failed to establish that defendants silence when Hamel directed officers to
expand fee search to under fee hood was not something more than mere acquiescence to a claim
of lawful authority. After defendant gave fee initial consent to search for narcotics and firearms,
fee officers directed defendant out of fee vehicle, placed him in handcuffs and moved him off to
fee side of the street while the search commenced. For all intents and purposes, at this point in
time the defendant was not free to leave and was firmly in fee custody of fee officers. See
Commonwealth v. Hilton, 443 Mass. 597, 609 (2005), I am of the opinion that once Hamel
directed an officer to continue wife the search and examine under fee hood of fee vehicle,
defendant was no longer in a position to revoke or limit his consent because he was in custody.
Therefore, the Commonwealth has felled to satisfy its burden that defendants silence was
8
Add/8
something morethanmere acquiescence to a claim of lawful authority. See Voisinet 414- Mass, at
783. Contrast Commonwealth v; Cantalupo, 380 Mass. 173, 174 (1980) (defendant not in
Ct 87,- 94 (2010) (defendant's mother, who was hot in custody, gave consent to search entire
home and followed officer from room to room without ever putting any limitation on consent).
Compare Commonwealth v, Caputo, 439 Mass. 153, 162-163 (2003) (defendant's silence after
The final issue is whether I should suppress defendants statements given at the station as
fruits of the poisonous tree. Evidence flowing from an unlawful search is fruit of the poisonous
tree and must be suppressed. Commonwealth v. Greenwood, 78 Mass. App. Ct 611, 619 (2011).
Here, the line of questioning that elicited both defendants verbal and written confession was
directly caused by the illegal search of defendants vehicle. Had the officers not found the
weapons in the air filter, they would not have questioned defendant in such a manner as to obtain
a confession. As such, defendants confession and all related statements flowed from the illegal
search of defendants air filter and are fruits of the poisonous tree.
Add/9
ORDER
For the foregoing reasons, it is hereby ORDERED that Defendants Motion to Suppress
10
Add/10
G.L. c. 90, 10
No person under sixteen years of age shall operate a
motor vehicle upon any way. No other person shall so
operate unless licensed by the registrar tinless he
possesses a receipt issued under section eight for
persons licensed in another state or country or unless
he possesses a valid learner's permit issued under
section eight B, except as is otherwise herein
provided or unless he is the spouse of a member of the
armed forces of the United States who is accompanying
such member on military or naval assignment to this
commonwealth and who has a valid operator's license
issued by another state, or unless he is on active
duty in the armed forces of the United States and has
in his possession a license to operate motor vehicles
issued by the state where he is domiciled, or unless
he is a member of the armed forces of the United
States returning from active duty outside the United
States, and has in his possession a license to operate
motor vehicles issued by said armed forces in a
foreign country, but in such case for a period of not
more than forty-five days after his return. The motor
vehicle of a nonresident may be operated on the ways
of the commonwealth in accordance with section three
by its owner or by any nonresident operator without a
license from the registrar if the nonresident operator
is duly licensed under the laws of the state or
country where such vehicle is registered and has such
license on his person or in the vehicle in some easily
accessible place. Subject to the provisions of section
three, a nonresident who holds a license under the
laws of the state or country in which he resides may
operate any motor vehicle of a type which he is
licensed to operate under said license, duly
registered in this commonwealth or in any state or
country; provided, that he has the license on his
person or in the vehicle in some easily accessible
place, and that, as finally determined by the
registrar, his state or country grants substantially
similar privileges to residents of this commonwealth
Add/11
and prescribes and enforces standards of fitness for
operations of motor vehicles substantially as high as
those prescribed and enforced by this commonwealth.
Notwithstanding the foregoing provisions, no person
shall operate on the ways of the commonwealth any
motor vehicle, whether registered in this commonwealth
or elsewhere, if the registrar shall have suspended or
revoked any license to operate motor vehicles issued
to him under this chapter, or shall have suspended his
right to operate such vehicles, and such license or
right has not been restored or a new license to
operate motor vehicles has not been issued to him.
Operation of a motor vehicle in violation of this
paragraph shall be subj ect to the same penalties as
provided in section twenty-three for operation after
suspension or revocation and before restoration or
issuance of a new license or the restoration of the
right to operate.
G. L. c. 266, 60
Whoever buys, receives or aids in the concealment of
stolen or embezzled property, knowing it to have been
stolen or embezzled, or whoever with intent to defraud
buys, receives or aids in the concealment of property,
knowing it to have been obtained from a person by
false pretense of carrying on a business in the
ordinary course of trade or whoever obtains or exerts
control over property in the custody of any law
enforcement agency, or any individual acting on behalf
of a law enforcement agency, which is explicitly
represented to such person by any law enforcement
officer or any individual acting on behalf of a law
enforcement agency as being stolen and who intends to
deprive its rightful owner permanently of the use and
enjoyment of said property shall be punished as
follows: if the value of such property does not exceed
$250, for a first offense by imprisonment in the house
of correction for not more than 2 # years or by a fine
of not more than $1,000; if the value of such property
does not exceed $250, for a second or subsequent
offense by imprisonment in the house of correction for
Add/12
not more than 2 H years or by imprisonment in the
state prison for not more than 5 years or by a fine of
not more than $5,000 or by both such fine and
imprisonment; or if the value of such property exceeds
$250 by imprisonment in the house of correction for
not more than 2 M years or by imprisonment in the
state prison for not more than 5 years or by a fine of
not more than $5,000 or by both such fine and
imprisonment. It shall not be a defense that the
property was obtained by means other than through the
commission' of a theft offense if the property was
explicitly represented to the accused as having been
obtained through the commission of a theft offense.
Add/13
(2) having in effect a license to carry firearms
issued under section one hundred and thirty-one of
chapter one hundred and forty; or
(3) having in effect a license to carry firearms
issued under section one hundred and thirty-one F of
chapter one hundred and forty; or
(4) having ineffect a firearms identification card
issued under section one hundred and twenty-nine B of
chapter one hundred and forty; or
(5) having complied with the requirements imposed by
section one hundred and twenty-nine C of chapter one
hundred and forty upon ownership or possession of
rifles and shotguns; or
(6) having complied as to possession of an air rifle
or BB gun with the requirements imposed by section
twelve B; shall be punished by imprisonment in the
state prison for not less than two and one-half years
nor more than five years, or for not less than 18
months nor more than two and one-half years in a jail
or house of correction. The sentence imposed on such
person shall not be reduced to less than 18 months,
nor suspended, nor shall any person convicted under
this subsection be eligible for probation, parole,
work release, or furlough or receive any deduction
from his sentence for good conduct until he shall have
served 18 months of such sentence; provided, however,
that the commissioner of correction may on the
recommendation of the warden, superintendent, or other
person in charge of a correctional institution, grant
to an offender committed under this subsection a
temporary release in the custody of an officer of such
institution for the following purposes only: to attend
the funeral of a relative; to visit a critically ill
relative; or to obtain emergency medical or
psychiatric service unavailable at said institution.
Prosecutions commenced under this subsection shall
neither be continued without a finding nor placed on
file.
Add/14
thirty-one or section one hundred and thirty-one F of
chapter one hundred and forty shall be deemed to be in
violation of this section.
Add/15
provisions of section 129C of chapter 140 shall be
punished by imprisonment in a jail or house of
correction for not more than 2 years or by a fine of
not more than $500. Whoever commits a second or
subsequent violation of thisparagraph shall be
punished by imprisonment in a house of correction for
not more than 2 years or by a fine of not more than
$1,000, or both. Any officer authorized to make
arrests may arrest without a warrant any person whom
the officer has probable cause to believe has violated
this paragraph.
(2) Any person who leaves a firearm, rifle, shotgun or
ammunition unattended with the intentto transfer
possession of such firearm, rifle, shotgun or
ammunition to any person not licensed under section
129C of chapter 140 or section 131 of chapter 140 for
the purpose of committing a crime or concealing a
crime shall be punished by imprisonment in a house of
correction for not more than 2 ^ years or in state
prison for not more than 5 years.
Add/16
An appeal may be taken by and on behalf of the
commonwealth by the attorney general or a district
attorney from the superior court to the supreme
judicial court in all criminal cases from a decision,
order or judgment of the court (1) allowing a motion
to dismiss an indictment or complaint, or (2) allowing
a motion for appropriate relief under the
Massachusetts Rules of Criminal Procedure.
Add/17
Holyoke City Ordinance Sec. 38-74
Any person who creates an unreasonably loud noise
through the use of amplification sound devices
including, but not limited to, a "boom box" or radio
amplification or similar equipment, including any
audio, stereo, cassette player, radio or similar
equipment in a parked or moving motor vehicle, shall
be subject to a $50.00 fine for the first offense,
$100.00 for the second offense, and $300.00 for a
third and subsequent offense committed over a 36-
month period.
Add/18
his houses, his papers, and all his possessions. All
warrants, therefore, are contrary to this right, if
the cause or foundation of them be not previously
supported by oath or affirmation; and if the order in
the warrant to a civil officer, to make search in
suspected places, or to arrest one or more suspected
persons, or to seize their property, be not
accompanied with a special designation of the persons
or objects of search, arrest, or seizure: and no
warrant ought to be issued but in cases, and with the
formalities prescribed by the laws.
Add/19
TABLE OF CONTENTS FOR
COMMONWEALTH'S RECORD APPENDIX
Indictment,
Hampden County Superior Court No. 15-273-1. . . . R/2
Indictment,
Hampden County Superior Court No. 15-273-2. . . . R/6
Indictment,
Hampden County Superior Court No. 15-273-3. . . . R/10
Indictment,
Hampden County Superior Court No. 15-273-4. . . . R/13
Indictment,
Hampden County Superior Court No. 15-273-5. . . . R/16
R/l
COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SS SUPERIOR COURT
INDICTMENT NO.
COMMONWEALTH *3 <%*+**> |
VS.
ANTHONY C ORTIZ
INDICTMENT
ILLEGAL POSSESSION OF A FIREARM
(HABITUAL OFFENDER)
GENERAL LAWS CHAPTER 269, SECTION 10(a)
At the Superior Court, begun and holden at Springfield, within and for the Comity of Hampden* on the first Tuesday of
March 2015. The GRAND JURORS for the Commonwealth of Massachusetts on their oath present that;
ANTHONY C. ORTIZ
defendant herein,, of Springfield in the County of Hampden, on or about January 23,2015 at HOLYOKE in the County of
Hampden, did knowingly have in his possession or did knowingly have under his control in a motor vehicle, a firearm, as
defined in section one hundred twenty-one of Chapter one hundred forty, said defendant not having in effect a license to
carry firearms or otherwise being authorized to do so, or exempted by statute, in violation of General Laws chapter 269,
section 10(a).
RETURN
HAMPDEN, ss Ondris/ #5 day of li/1 QijfJA , 2015, this indictment was returned and presented to said
Superior aqd ordpf^d tpife fifed and filed,
R/2
THEJURORS for the COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH -
FURTHER PRESENT THAT
ANTHONY C ORTIZ
Prior to the commission of the offense heretofore described in this indictment was previously convicted of any of the offenses
set forth in paragraph (a), (b), or (c) of Genera] Laws Chapter 269, section IQ, on or about September 24, 2009 in the Hampden
Superior Court, Indictment # 08-877-5 for the offense of Unlawful Possession of a Firearm m the City of Holyoke on or about
May 26,2008, and is therefore subject to the provisions of General Laws, chapter 269, section 10(d)^
A TRUE BILL
RETURN
^ day of
, 2015, this indictment was returned and presented to said
Assistant Clerk
R/3
G.L.C. 269 s. 10G{c)
v u
-1
I
THE JURORS for the COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH
FURTHER PRESENT THAT
ANTHONY C. ORTIZ
Prior to the commission of the offense heretofore described in this indictment was previously convicted, adjudicated
delinquent or found to be a Youthful Offender of three violent crimes or three serious drug offenses, both as defined in General
Laws Chapter 269 section 10 G(e), or any combination thereof totaling three, arising from separate Incidents, on or about
September 24,2009 in the Hampden Superior Court, Indictment # 08-877-2 for the offense of Assault and Battery by Means of
a Dangerous Weapon (Serious Bodily Injury) in the City of Holyoke on or about May 26,2008; and, on or about June 5,2009
in the Hampden Superior Court, Indictment# 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June 2,2008; and, on or about January 7,2009 in
the Hampden Superior Court, Indictment # 08-185-3 for the offense of Assault and Battery by Means of a Dangerous Weapon
in the City of Holyoke on or about May 31,2007, and is therefore subject to the provisions of General Laws, chapter 269,
section 10G.
ATRUE BILL
R/4
G.L. c. 279 s. 25(a)
ANTHONY C. ORTIZ
The said ANTHONY ORTIZ was previously twice convicted of a crime and sentenced to state prison or state correctional
facility or a federal corrections facility by the Commonwealth, another state or by the United States for a term of not less than
three years each and has not been pardoned for either crime on the ground that he or she was innocent; on or about September
24,2009 in the Hampden Superior Court* Indictment # 08-877-2 for the offense of Assault and Battery by Means of a
Dangerous Weapon (Serious Bodily Injury) in the City of Holyoke on or about May 26,2008; and, on or about June 5,20Q9 in
the Hampden Superior Court, Indictment # 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June 2,2008, and is therefore a habitual criminal
under the provision of section twenty-rive subsection (a) of chapter 279 of the General Laws.
A TRUE BILL
RETURN
HAMPDEN, ss Onjb&7 25* .day of,
2015, this indictment was returned and presented to said
Assistant Clerk
R/5
COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SS SUPERIOR COURT
INDICTMENT NO,
COMMONWEALTH ? tr
VS. iu
ANTHONY C ORTIZ
INDICTMENT
ILLEGAL POSSESSION OF A FIREARM
(HABITUAL OFFENDER)
GENERAL LAWS CHAPTER 269, SECTION 10(a)
At the Superior Court, begun and holden at Springfield, within and for the County of Hampden, on the first Tuesday of
March 2015. The GRAND JURORS for the Commonwealth of Massachusetts on their oath present that:
ANTHONY C. ORTIZ
defendant herein, of Springfield in the County of Hampden, on or about January 23,2015 at HOLYOKE in the County of
Hampden, did knowingly have in his possession or did knowingly have under his control in a motor vehicle, a firearm, as
defined in section one hundred twenty-one of Chapter one hundred forty, said defendant not having iii effect a license to
cany firearms or otherwise being authorized to do so, or exempted by statute, in violation of General Laws chapter 269,
section 10(a).
RETURN
HAMPDEN, ss ,t 2015, this indictment was returned and presented to said
Superior
ATTES Assistant Clerk
R/6
G.L.c. 259 s, 10(d)
0 ANTHONY C. ORTIZ
Prior to the commission of the offense heretofore described in (his indictment was previously convicted of any of die offenses
set forth in paragraph (a), (b>, or (c) of General Laws Chapter 269, section 10, on or about September 24,2009 in the Hampden
Superior Court, Indictment # 08-877-5 for the offense of Unlawful Possession of a Firearm in the City of Holyoke on or about
May 26,2008, and is therefore subject to the provisions of General Laws, chapter 269, section 10(d).
A TRUE BILL
RETURN
HAMPDEN, ssOn , 2015, tills indictment Was returned and presented to said
Superior Cop^
R/7
G.L.c.269 s. 10G(c)
ANTHONY CORTTZ
Prior to the commission of the offense heretofore described in this indictment was previously convicted, adjudicated
delinquent or found to be a Youthful Offender of three violent crimes or three serious drug offenses, both as defined in General
Laws Chapter 269 section 10 G(e),orany combination thereof totaling three, arising from separate incidents, on or about
September 24,2009 in the Hampden Superior Court, Indictment# 08-877-2 for the offense of Assault and Battery by Means of
a Dangerous Weapon (Serious Bodily Injury) in the City pf Holyoke on or about May 26,2008; and, on or about June 5,2009
in the Hampden Superior Court, Indictment # 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June 2,2008; and, on or about January 7,2009 iii
the Hampden Superior Court, indictment # 08-185-3 for the offense of Assault and Battery by Means of a Dangerous Weapon
in the City of Holyoke on or about May 31,2007, and is therefore subject to the provisions of General Laws, chapter 269,
section 10G.
A TRUE BILL
RETURN
2015, this indictment was returned and presented to said
Assistant Clerk
R/8
G.L.C. 279 5.25(a)
IS 270 - 2,
THE JURORS for the COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH
FURTHER PRESENT THAT
ANTHONY C. ORTIZ
The said ANTHONY ORTIZ was previously twice convicted of a crime and sentenced to state prison or state correctional
facility or a federal corrections facility by the Commonwealth, another state or by the United States for a term of not less titan
three years each and has not been pardoned for either crime on the ground that he or she was innocent: on or about September
24,2009 in the Hampden Superior Court, Indictment # 08-877-2 for the offense of Assault and Battery by Means of a
Dangerous Weapon (Serious Bodily Injury) in the City of Holyoke on or about May 26,2008; and, on or about June 5,2009 in
the Hampden Superior Court, Indictmeni # 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June 2,2008, and is therefore a habitual criminal
under the provision of section twenty-rive subsection (a) of chapter 279 of the General Laws.
RETURN
HAMPDEN, ss Oi (s day of. , 2015, this indictment was returned and presented to said
Superior Cant,
Assistant Clerk
R/9
COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SS SUPERIOR COURT
INDICTMENT NO.
COMMONWEALTH
VS.
ANTHONY C. ORTIZ
INDICTMENT
UNLAWFUL POSSESSION OF AMMUNITION WITHOUT IDENTIFICATION CARD
(HABITUAL OFFENDER)
GENERAL LAWS CHAPTER 269, SECTION 10(h)
At the Superior Court, begun and hotden at Springfield, within and for the County of Hampden, on the first Tuesday of
March 2015. The GRAND JURORS for the Commonwealth of Massachusetts on their oath present that:
ANTHONY C ORTIZ
defendant herein, of Springfield in the County of Hampden, on or about January 23,2015 at HOLYOKE in the County of
Hampden, did own or possess or transfer possession of a firearm, rifle, shotgun or ammunition without complying with the
requirements relating to the firearms identification card provided for in Section 129C of Chapter 140 of the General Laws,
in violation of General Laws chapter269, section 10(h).
A TRUE BELL
RETURN
2015, this indictment was returned and presented to said
red to be filed and filed.
Assistant Clerk
R/10
G.c>
IS 269 & 10G(c)
273^3
ANTHONY C. ORTIZ
Prior to the commission of the offense heretofore described in this indictment was previously convicted, adjudicated
delinquent dr found to be a Youthful Offender of three violent crimes or three serious drug offenses, both as defined in General
Laws Chapter 269 section 10 G(e), or any combination thereof totaling three, arising from separate incidents, on or about
September 24,2009 in the Hampden Superior Court, Indictment # OS-877-2 for the offense of Assault and Battery by Means of
a Dangerous Weapon (Serious Bodily Injury) m the City of Holyoke on or about May 26,200S; and, on or about June 5,2009
in the Hampden Superior Court, Indictment# 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June 2,2008; and, on or about January 7,2009 in
the Hampden Superior Court, Indictment # 03-185-3 for the offense of Assault and Battery by Means of a Dangerous Weapon
in the City of Holyoke on or about May 31,2007, and is therefore subject to the provisions of General Laws, chapter 269,
section I0G-
RETURN
HAMPDEN, s , 2015, this indictment was returned and presented to said
Superior Co:
R/ll
G.L.c. 279 s, 25(a)
IS g73 -3
THE JURORS for the COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH
FURTHER PRESENT THAT
ANTHONY C ORTIZ
The said ANTHONY ORTIZ was previously twice convicted of a crime and sentenced to state prison or state correctional
facility or a federal corrections facility by the Commonwealth* another state or by the United States for a term of not less than
three years each and has not been pardoned for either crime on the ground that he or she was innocent: on or about September
24,2009 in the Hampden Superior Court, Indictment# 08-877-2 for the offense of Assault and Battery by Means of a
Dangerous Weapon (Serious Bodily Injury) in the City of Holyoke on or about May 26,2008; and, on or about June 5,2009 in
the Hampden Superior Court, Indictment # 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June 2,2008, and is therefore a habitual criminal
under the provision of section twenty-five subsection (a) of chapter 279 of the General Laws.
A TRUE BILL
RETURN
HAMPDEN, sf On;faff day of ___________ * 2015, this indictment was returned and presented to said
Superior Jjgry^aipJ ord^redytfi^e filed and filed.
R/12
COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SS SUPERIOR COURT
INDICTMENT NO.
COMMONWEALTH
VS. is 2*70 - H
ANTHONY C. ORTIZ
INDICTMENT
UNLAWFUL POSSESSION OF AMMUNITION WITHOUT IDENTIFICATION CARD
(HABITUAL OFFENDER)
GENERAL LAWS CHAPTER 269, SECTION 19(h)
At the Superior Court, begun and holden at Springfield, within and for the County of Hampden, on the first Tuesday of
March 2015. The GRAND JURORS for the Commonwealth of Massachusetts on their oath present that:
ANTHONY C. ORTIZ
defendant herein, of Springfield in the County of Hampden, on or about January 23,2015 at HOLYOKE in the County of
Hampden* did own or possess or transfer possession of a firearm, rifle, shotgun or ammunition wiihout complying with the
requirements relating to the firearms identification card provided for in Section 129C of Chapter 140 of the General Laws,
in violation of General Laws chapter 269, section 10(h),
RETURN
HAMPDEN, ssO , 2015, this indictment was returned and presented to said
Superior
Assistant Clerk
R/13
G.L. c.269 s. 10G(c)
is
THE JURORS for the COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH
FURTHER PRESENT THAT
ANTHONY C ORTIZ
Prior to the commission of the offense heretofore described in this indictment was previously convicted, adjudicated
delinquent or found to be a Youthful Offender of three violent crimes or three serious drug offenses, both as defined in Genera]
Laws Chapter 269 section, 10 G(e), or any combination thereof totaling three, arising from separate incidents, on or about
September 24,2009 in the Hampden Superior Court, Indictment # 08-877-2 for the offense of Assault and Batteiy by Means of
a Dangerous Weapon (Serious Bodily Injury) in the City of Holyoke on or about May 26,2008; and, on or about June 5,2009
in the Hampden Superior Court, Indictment # 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June % 2008,; and, on or about January 7,2009 in
the Hampden Superior Court, Indictment # 08-185-3 for the offense of Assault and Battery by Means of a Dangerous Weapon
in the City of Holyoke od or about May 31,20Q7* and is therefore subject to the provisions of General Law$, chapter 269,
section 1QG.
RETURN
HAMPDEN, ss On _______ , 2015, this indictment was returned and presented to said
Superior Codftvb: to be filed and filed
R/14
G.L.c. 279 s. 25(a)
ANTHONY C. ORTIZ
The said ANTHONY ORTIZ was previously twice convicted of a crime and sentenced to state prison or state correctional
facility or a federal corrections facility by the Commonwealth, another state or by the United States for a term of not less than
three years each and has not been pardoned for either crime on the ground that he or she was innocent: on or about September
24,2009 in the Hampden Superior Court, Indictment # 08-877-2 for the offense of Assault and Battery by Means of a
Dangerous Weapon (Serious Bodily Injury) in die City of Holyoke on or about May 26,2008; and, on or about June 5,2009 in
the Hampden Superior Court, Indictment # 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June 2,2008, and is therefore a habitual criminal
under the provision of section twenty-five subsection (a) of chapter 279 of the General Laws.
A TRUE BILL
RETURN
ntz 4v AL vi,
., 2015, this indictment was returned and presented to said
Assistant Clerk
R/15 *
COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SS SUPERIOR COURT
INDICTMENT WO.
COMMONWEALTH
VS. 115 273
ANTHONY C. ORTIZ
INDICTMENT
RECEIVING STOLEN PROPERTY
(HABITUAL OFFENDER)
GENERAL LAWS CHAPTER 266, SECTION 60
At the Superior Court, begun and holden at Springfield, within and for the County of Hampden, on the first Tuesday of
March 2015. The GRAND JURORS for the Commonwealth of Massachusetts on their oath present that:
ANTHONY C. ORTIZ
defendant herein, of Springfield in the County of Hampden, on or about January 23,2015 at HOLYOKE in the County of
Hampden, did buy, receive, or aid in the concealment of stolen or embezzled property, namelyi a Beretta model 1934 pistol
the property of Otis Powwell, knowing said property to have been stolen or embezzled the value of said property to be more
than two hundred and fifty dollars, in violation of General Laws chapter 266, section 60,
i I
A TRUE BILL
, RETURN
HAMPDEN, ss Ottfhis day of \AlKfMi____________ 2015, this indictment was returned and presented to said
Superior Cpcb^by^eand^ojx&ed to be filed and filed.
ATTEST? Assistant Clerk
R/l 6
THE JURORS for the COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH
FURTHER PRESENT THAT
ANTHONY C ORTIZ
The said ANTHONY ORTIZ was previously twice convicted of a crime and sentenced to state prison or state correctional
facility or a federal corrections facility by the Commonwealth, another state or by the United States for a term of not less than
three years each and has not been pardoned for either crime on the ground that he or she was innocent: on or about September
24,2009 in the Hampden Superior Court* Indictment # 08-877*2 for the offense of Assault and Battery by Means of a
Dangerous Weapon (Serious Bodily Injury) in the City of Holyoke on or about May 26, 2008; and, on or about June 5,2009 in
the Hampden Superior Court, Indictment # 08-920-2 for the offense of Unlawful Possession of a Controlled Substance With
Intent to Distribute (Class A - HEROIN) in the City of Holyoke on or about June 2, 2008, and is therefore a habitual criminal
under the provision of section twenty-five subsection (a) of chapter 279 of the General Laws.
ATRUEBELL
RETURN
2015, this indictment was returned and presented to said
to be filed and filed.
Assistant Clerk
R/17
1579CR00273 Commonwealth vs. Ortiz, Anthony C.
Case Type Indictment Case Status Open
Status Date: 04/02/2015 File Date 03/25/2015
Case Judge: DCM Track: A-Standard
Next Event: 01/05/2016
Party Information
Commonwealth - Prosecutor
[Alias 1
Attomey/Bar Code Phone Number
Sandstrom, Esq., Mary Antoinette (678544)
More Party Information
Ortiz, Anthony C. - Defendant
(Allas
Attomey/Bar Code Phone Number
Rubin, Esq., Richard J (433020)
.
More Party Information
R/18
'Ortiz, Anthony C. - Defendant " " ~
Charge U 5 : 266/60/A-0 - Felony RECEIVE STOLEN PROPERTY +$250 c266 60
Original Charge 266/60/A-0 RECEIVE STOLEN PROPERTY +$250
c266 60 (Felony)
Indicted Charge
Amended Charge
Events
Ticklers
R/19
Tickler Start Date Days Due Dus Date Completed Date
Pre-Trial Hearing 04/02/2015 o 04/02/2015
Final Pre-Trial Conference 04/02/2015 166 09/15/2015
Case Disposition 04/02/2015 180 09/29/2015
Under Advisement 09/30/2015 60 11/29/2015 11/05/2015
ft/20
Docket Docket Text FHe Ref
Date Nbr.
06/08/2015 Request for Interpreter by Anthony C. Ortiz 5
07/31/2015 Defendant*s Motion to suppress Evidence 6
07/31/2015 Affidavit filed by Defendant Anthony C. Ortiz In support of 6.1
the Accused's Motion to suppress Evidence
08/05/2015 Event Result
The following event Ball Hearing scheduled for 08/05/2015 09:29 AM has been resulted as
follows:
Result Held as Scheduled
Appeared:
08/05/2015 Event Result
The following event Evidentiary Hearing on Suppression scheduled for 08/05/2015 09:15 AM has
been resulted as follows:
Result: Rescheduled
Reason: Joint request of parties
Appeared:
08/05/2015 Event Result After bail hearing, reduction is DENIED
08/05/2015 Ball set at $300,000.00 Surety, $30,000.00 Cash. Next date: 9/8/15
09/08/2015 Bail set at $50,000.00 Surety, $5,000.00 Cash. NextDate: 11/10/15 8
09/08/2015 Commonwealth's Motion to continue 7
09/08/2015 Endorsement on Motion to continue, (#7.0): ALLOWED
09/08/2015 Event Result:
The following event Evidentiary Hearing on Suppression scheduled for 09/08/2015 09:15 AM has
been resulted as follows:
Result: Not Held
Reason: Joint request of parties
09/08/2015 Event Result
The following event Final Pre-Trial Conference scheduled for 09/15/2015 09:39 AM has been
resulted as follows:
Result Not Held
Reason: Joint request of parties
Appeared:
09/08/2015 Event Result
The following event Jury Trial scheduled for 09/30/2015 09:07 AM has been resulted as follows:
Result Not Held
Reason: Joint request of parties
09/30/2015 Event Result
The following event: Evidentiary Hearing on Suppression scheduled for 09/30/2015 09:15 AM has
been resulted as follows:
Result: Not Held
Reason: Transferred to another session
09/30/2015 Matter taken under advisement
The following event: Evidentiary Hearing on Suppression scheduled for 09/30/2015 10:00 AM has
been resulted as follows:
Result Held Under advisement
09/30/2015 Joint Pre-Trial Memorandum filed: 9
09/30/2015 Event Result
The following event: Final Pre-Trial Conference scheduled for 09/30/2015 09:39 AM has been
resulted as follows:
Result: Held as Scheduled
10/05/2015 Commonwealth's Memorandum in opposition to 10
suppression (post hearing)
10/14/2015 Anthony C. Ortizs Memorandum in support of 11
R/21
Docket Docket Text File Ref
Date Nbr.
Motion to Suppress; Memorandum on Scope of Inventory Search Scopt of Consent to Search
After Allowed to Check
10/21/2015 Event Result
The following event Jury Trial scheduled for 10/21/2015 09:07 AM has been resulted as follows;
Result Not Meld
Reason: Joint request of parties
10/29/2015 Event Result
The following event Conference to Review Status scheduled for 10/29/2015 09:35 AM has been
resulted as follows:
Result: Not Held
Reason: Joint request of parties
11/03/2015 Event Result:
The following event Conference to Review Status scheduled for 11/03/2015 09:35 AM has been
resulted as follows:
Result Held as Scheduled
11/05/2015 Endorsement on Motion to suppress evidence, (#6.0): ALLOWED
11/05/2015 MEMORANDUM & ORDER: 12
on defendant's motion to suppress evidence
11/06/2015 Commonwealth 's Motion for Stay of Proceedings 13
11/06/2015 * Notice to the Appeals Court of Interlocutory Appeal 14
Applies To: Commonwealth (Prosecutor)
11/09/2015 Released on Personal Recognizance
11/09/2015 Event Result
The following event Bail Hearing scheduled for 11/09/2015 09:29 AM has been resulted as
follows:
Result Held as Scheduled
11/10/2015 Event Result:
The following event Conference to Review Status scheduled for 11/10/2016 09:35 AM has been
resulted as follows:
Result Not Held
Reason: Joint request of parties
Case Disposition
R/22
COMMONWEALTH OF MASSACHUSETTS
COMMONWEALTH
ANTHONY C. ORTIZ
3 f 2015
l t
Now comes the accused, Anthony C. Ortiz in the above numbered indictment(s)
and moves, pursuant to Ma$$.R.rim.P. 13, to suppress from the use by the Commonwealth
all evidence, of evex^ name, nature and description, both tangible or intangible, seized from
Mr, Ortiz or from an area which the accused had exclusive control or from an area in
which the accused enjoyed a reasonable expectation of privacy. The accused asserts that he
was the subject of an illegal search which exceeded the boundary of a search incident to
arrest. The search incident to arrest, (the arrest was for unlicensed operation of a,n*otor
vehicle),exceeded the area within the arrestee's immediate control. That purpose of the
search was not for evidence of the crime charged, unlicensed operation of a motor vehicle.
Further, there was no exigent circumstances except that created by those who came to make
the arrest The searched exceeded the legal restrictions in that there was no reasonable basis
for concluding that there would be destruction of evidence, that there was any drugs or
weapons in the vehicle nor any person who may put the officers in danger or destroy
evidence. The evidence, handguns were found after the hood of the vehicle was opened and
R/23
a search was made of the air fitter box in which was found a bag in which weapons were
found.
As reasons, the accused through counsel says that the evidence was not
seized pursuant to, a. lawful arrest, was not in plain view, there was no probable cause or
a lawful consented not part of a inventory search, (the car was returned to the listed owner
at the scene, hot towed to the police station or tow yard) and in violation of the rights of the
accused under the Fourth and Fourteenth Amendments to the United States Constitution,
Article 14 of the Declaration of Rights of Massachusetts and G.L. c276 et.seq._and the
Common Law.
As reason therefore, counsel states that according to the police report (s) read and
received, as well as both grand jury minutes which the accused disputes in part and agrees
The police report was authored by Holyoke Detective Jared Hamel, he was also
the sole witness at the Grand Jury hearing dated March 25,2015. He alleges the following;
The accused agrees in part and disputes in part the allegations alleged in the reports.
traveling south on Center Street towards Mosher Street, in Holyoke. The Detectives report
that they heard the load bass sound coming from the area of Mosher Street, but could not
detect what direction the sound was coming from. They noticed an automobile turning from
*/24
Mosher onto Center and determined that the sound was coming from the automobile. They
ordinance by- law, C 38 S 74, (operate a motor vehicle with harsh and objectionable noise).
As the vehicle traveled down Center street the music was tutiii^d loff jiist as the police
activated their emergency lights. The vehicle was stopped prior to East Dwight Street. The
police observed three occupants in the vehicle. There is no report of suspicious movements
or actions by any of the three persons. The reports opinion ed that the ^rca i^ high crime
area and that there have been numerous arrests for violent crimes. The Detectives exited
their vehicle with Det. Hamil approaching the drivers side and Det. Boyle approaching the
passengers side. Det. Hamil recognized the driver as Mr. Ortiz and relates that-he knows
him as a violent felon and that one of the passengers Jorge Ortiz, had recently been
charged with drug offenses. No actions by any of the occupants indicated any attempt to
hide any objects nor was there any contraband in plain view, nor the smell of any narcotic or
illegal drugs. Mr. Ortiz was spoken to in English, which he has almost no ability to
lunderstand to produce a drivers license and registration. Gorge Ortiz is alleged to have
translated Det. Hamil's request. Mr. Ortiz produced hiis 1.D, And registration, not a license.
The passengers ape alleged to not hav e had seat belts attached and their I.D. was requested.
Back-up had been call;ed and K-9 Trooper, Matt Donah was on the scene as well as Lt.
Monaghan and Detective Prutus were at the scene. Det. Hamil alleges that he asked in
English, Mr. Ortiz, in the presence of Det. Boyle, if there was any weapons or narcotics in the
vehicle and Mr. Ortiz stated in English, "NO YOU CAN CHECK. Mr Ortiz denies that he
said any such thing. Please note that the request was not translated into Spanish according to
the police report. Det Hamil alleges that after an alleged consent and based upon the
R/25
circumstances-that none of the involved had a valid license, the danger associated with the area
we were in and the past criminal record of two of the occupants of the vechile and that we were
outnumbered) I had Anthony exit the vehicle, 1 placed him in handcuffsfor safety and advised
him he was not under arrest at this time. To check the vehicle they had the two passengers exit,
they ^ereipat frisked. Det. Hamil then had the Trooper have his K-9 run around the car, and
then inside the front, back and trunk. There no bit by the dog but interest In the back seat
area which was searched with no result. Det Hamil then had Det Boyle check under the
hood. Det Boyle as part of that search opened the air filter compartment, found a bag and
within the bag was found two handguns. Mr. Ortiz is alleged to have made statements to the
Each of the two passengers had a small bag of marijuana (alleged) and one had
$1400.00 on his person which was found during the pat search.
The accused says that bis Fourth and Fourteenth Amendments to the
Constitution of the United States and Article 14 of the Declaration of Rights of the
violated as well as alleging that be was under arrest and that the delay caused by the police
by theirqvyh mak'ing was illegal. The police further failed to gat a search warrant after the
accused was under arrest and the police returned the vehicle at the scene to the registered
owner. Therefore the accused requests that evidence seized (the weapon) should be
suppressed by this Honorable Court as well as all statements made by the accused to the
R/2 6
Attached please find the affidavit of the accused.
RespectfuJfy submitted
C.P.C.S.
101 State Street
Springfield, Ma. 01103
413 750-1070
BBO# 433020
R/27
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
COMMONWEALTH
V.
ANTHONY ORTIZ
R/28
ARGUMENT
The law has consistently provided that the scope of consent is determined by the
limitations provided by the person giving consent; What if any limitations on the scope of
consent are implied by the language or conduct of the consenting party is a question in the first
instance for the judgment of the police officers to whom the consent is given. The ultimate
question is whether, in light of all the circumstances, a man of reasonable caution would be
warranted in the belief that some limitation was intended by the consent giver. Commonwealth
v. Cantalupo, 380 Mass. 173 (1979), quoting State v. Koucoules, 343 A.2d 860,866-867 (Me.
1974).
Limitations given by die consent giver must be present by words or conduct In
Commonwealth v. Gaetani, the police arrived at the defendants apartment looking for the
defendants son and asked Do you mind if we come in and take a look? The defendant then
stepped aside and said you can look, hes not here. 36 N.E.3d 79, unpublished decision from
the Appeals Court of Massachusetts (2015). The defendant then argued on appeal that his
consent did not extend to a search of the closet inside the apartment. In determining that the
scope of the search did not exceed the defendants consent, the court noted that nothing in the
record suggests such limitation as to prevent officers from searching the closet. Id. at *1. In
Cantalupo, the defendant invited a search of his person by opening his jacket, saying search
me and making a gesture indicating an invitation to die officers to search him. The defendant
thereafter contested the search of his shoe, arguing that it exceeded the scope of his consent. The
court noted that the defendants words placed no limitations on the scope of the search to which
he was consenting.. .There was no evidence that he objected to any part of the search...380
Mass. 173 at 179. In Commonwealth v. Caputo, <cthere was no reasonable basis for the police to
infer that the defendant had limited, or withdrawn, his consent for them to be in his house. After
the defendant said he did not wish to talk to the police, he did not ask them to leave. After
Dorman and Morse went outside, he did not ask the two officers who remained inside to leave,
and he did not object when Morse and Dorman reentered the house after inspecting his
automobile. We see no basis to conclude that the defendants invitation to the police to enter his
house was circumscribed in anyway. 439 Mass. 153,163,786 N.E.2d 352,360 (2003). It is
clear that these aforementioned holdings provide that if there are no limitations expressed, the
police may search all places that could contain the object of the search.
2
R/29
In the present matter, the Defendant is fully compliant with police. Detective Hamel
explicitly asked if there was anything'in the vehicle. The Defendant consented and said no you
can check.55 There is nothing in the record to suggest that the Defendant limited the scope of the
search by his words or conduct. In fact, the Defendant was standing outside of the vehicle as the
search took place. During the hearing, Detective Hamel was asked if the Defendant objected in
any way to the search as it progressed from the interior to the air filter. Detective Hamel testified
that the Defendant did not. Furthermore, Detective Monsalve testified that at die police station,
the Defendant, after being Mirandized, stated that he gave consent for Detective Hamel to search
the car. No limitations were ever provided by the Defendant and no reasonable person would be
able infer otherwise,
A second factor in determining the scope of a search by consent lies within the police
officers knowledge as to where contraband may be located and consideration that the law gives
to the officers knowledge at the time of the search. Again, in Cantalupo, the Court held that,
despite the Defendants argument that a search of his person was limited to the top half of his
body; a search of the Defendants shoe was by no means extraordinary for such a substance to
be concealed in ones shoe. Id. In Gaetani, the Court approved of the search by consent where
it was-reasonable for officers to believe they could search the closet, as the object of the
search.. .may have been inside it. 36 N.E.2d 79. The law has provided that the police may
search areas one could expect the object to be hidden. See, Florida v. Jimeno, 500 U.S. 248 251-
2 (1991).
At the hearing, Detective Hamel testified that narcotics could be hidden in the air filter.
He based this testimony on personal experience as well as several training courses he completed
during his law enforcement career. Given this prior knowledge and training, it was well within
the officers knowledge that an object of the search could be hidden within the air filter of the
vehicle. This was not an unorganized dismantling of the vehicle; instead, it was a calculated
search of those closed containers and areas of the car that were known and expected, through
training and experience, to hold illegal items.
Finally, the search of the air filter is not so intrusive as to be outside the scope of search.
Once the search of the car is lawfully justified, the police may search each and every part of the
vehicle that may conceal the object of the search. In Commonwealth v. Bakoian, such parts
included the air filter. 412 Mass. 295 (1992). (Also see, Commonwealth v. Wunder, 407 Mass.
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CONCLUSION
For all these aforementioned reasons, the search of the cars air filter did not exceed the
scope of consent. Therefore the seizure of the firearms was lawful and the Defendants Motion to
Suppress should be denied.
Respectfully submitted,
Mary A. Sandstrom
Assistant District Attorney
BBO # 678544
(413)-505-5688
CERTIFICATE OF SERVICE
I hereby certify that one (1) true copy of the Commonwealths Motion in Opposition has
been delivered by facismile to Richard J, Rubin, Esq. of the Committee for Public Counsel
Services, attorney for the defendant, Anthony Ortiz, on this date, October , 2015.
Date:_____________ _ __________________________
R/3T
COMMONWEALTH OF'MASSACHUSHTS
SUPEKrflK Court
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R/32
the response is "No, you can check.0 The second officer was Detective Jorge Monsatves, a Spanish
speaking officer who took a statement from the accused after the search of the vehicle and after the
accused was brought to the Holyoke Police Department The accused is Spanish speaking.
STATEMENT OF FACTS:
Detective Hamel testified that on 01/23/15 he and Detective B. Boyle were in an unmarked
cruiser In a high crime area of Hoyoke, they heard toad bass sound coming from an area of Mosher St
The detectives saw a vehicle which was turning Into Center Street The vehicle was stopped. Detective
Hamel was not able .to recite the regulation regarding the civil infraction of excessive noise. When the
officers approached the vehicle they recognized two of the occupants. The driver, Anthony Ortiz and
the front passenger as Jorge Ortiz. Detective Hamel labeled both as violent felons. He also indicated
that he was nervous. He called for backup. A state trooper arrived with his K-9. A check revealed that
none of the three people had a valid license. Detective Hamel asked Mr. Ortiz If there were any
weapons or narcotics tn the vehicle. The reply was, "No you can check." Mr. Ortiz was ordered out of
the car, handcuffed, (Hamel first testified that Mr. Ortiz was not handcuffed, after refreshing his
memory by reading a section of his police report he corrected his testimony), told he was not under
arrest and placed at the rear of the car. The trooper had his K-9 run outside and inside the vehicle
with no hits. The dog had interest in the back rear seat. Det. Checked with negative results. Two more
police officers had arrived and after pat friskof the occupants the dog and human search of the truck
Det. Hamel testified that he had had a conversation with Detective Vlamari regarding a stop in
Holyoke in May of 2014 in which information had been received that a large amount of narcotics was
being transported in a car. A search of the car did not reveal any narcotics. Later information was
j
learned that the narcotics were concealed In the air filter of the car.
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With this Information Detective Hamel directed Detective Boyle to open the hood and check
under the hood, and to remove the air filter and check the air filter box. Weapons were located In a
Prior to the search Detective Hamel testified that there were no acts by any of the occupants
of the vehicle to suggest that they were hiding anything, there was no information from any source
that the car or fts occupants had weapons or narcotics. There was no search warrant. There had been
no decision regarding the vehicle's disposition. Detective Hamel testified that the search was part of
an inventory search. The car was returned at the scene to Naysha Merced the registered owner of the
car. The testimony was that this occurred as the three men were placed into police cars to be
ARGUMENT:
The accused through counsel asserts that the inventory policy of the Holyoke Police
Department does not authorhe the opening of the hood the removal of the air filter or any other part
of the engine. The operating procedure of the police department states that; " A motor vehicle
inventory is an administrative measure designed to: 1. Protect the motor vehicle as well as any
personal property contained In such vehicle; 2. Protect the police against claims arising from property
allegedly lost or stolen while in police custody, and; 3. Protect department personnel and the public
from injury or property damage due to dangerous Items or substances that may be contained in the
vehicle."
The above policy has a definition of: /nventory.' An examination of all areas of the vehicle in
which personal property may reasonably be found; including but not limited to the passenger
R/3'4
Detective Hamel testified that he was authorized under Holyoke police policy to do
an inventory of the car prior to having it towed and opening the hood and removing the
air filter was part of that inventory. Counsel suggests that there is nothing in the police
policy which allows for removing the air filter in order to fulfill the obligation of
protecting the car, the police and department personnel. Valuables are not normally
found in air filters. In Commonwealth v Ortiz 31Mass. L rev. 640 (2014) the Court
inventory search. The Court found that the police had received information that narcotics
would be found in the vehicle an officer was told to stop the car and arrest the accused and
to search the car and backpack. The Court found that this was unconstitutional under the
U.S. Constitution Amendment IV because the inventory search was a pretext for an purely
investigatory search. The Court has consistently ruled a warrantless inventory search of a
stopped motor vehicle is unlawful, under the Fourth Amendment and Article 14, if the real
purpose is to make an investigatory search for contraband (See e.g. Com, V Wren at 812)
Counsel suggests that Det. Hamel's order to remove the air filter during an inventory
search was an investigatory search for drugs or guns without probable cause or reasonable
suspicion and therefore the officers motive invalidated objectively justifiable behavior.
In the case of State v Williamsf 382 S.W. 3D 232 (2012) the Court found that drugs
found under the gear shift boot of the accused1 s vehicle in an inventory search during a
traffic stop in which the accused was arrested for driving with a suspended license should
R/35
have been suppressed as a search extended beyond applicable Fourth Amendment
parameters. The inventory search went beyond the Kansas City Police Departments
inventory policy, The Holyoke inventory guide, as in the Williams case did not extend to the
engine or the removal of the air filter without probable cause. The.search was beyond the
inventory policy and therefore was an unauthorized and a purposeful and general means
of discovering evidence. The police had already had a K-9 go over the interior and exterior
of the car without a hit, the police had searched the passenger compartment of the car, and
pat frisked the passengers and the accused. Therefore the search in the engine area was
clearly an investigatory search for evidence based upon the Detectives hunch, not
Commonwealth v Douglas, 86 Mass; App. Ct 404 (2014). The trial court allowed a motion to
suppress evidence police officers discovered in a vehicle. The appeals court found that the
received and of a confrontation among rival gangs, The'court also found that one of the
occupants was in a pivoted position which supported a reasonable suspicion that he was
trying to hide or access a weapon. The case before this court does not have reasonable
suspicion. These factors did not exist during the search of Mr. Ortiz vehicle. The Court
also stated that the reasonableness of die police officer's action based upon the
circumstances confronting the officer in the field. The Holyoke police went beyond the
circumstances of the stop and search which would be reasonable under the circumstances.
. The accused asserts that the alleged inventory search was done as an excuse for a
search for evidence and extended beyond the inventory search guidelines
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The Commonwealth contends that the consent of Mr. Ortiz to search had no limits.
The cases of Commonwealth v Cantalupo, 380 Mass, raises the question if the accused can
limit the area of the consent to search. The accused action in opening his coat and saying
look allowed the police to search his entire person including having him remove his shoes.
The police found contraband in his shoe and indicated that there is no limitation that the
search be only his upper body. The police had received an informants tip. The
circumstances of this case in which the accused gave permission to look by the context of
the circumstances and the reasonable person standard would suggest the limitation was
the passenger compartment The accused had no access to the engine area nor the trunk.
Therefore to suggest that die consent reached the engine compartment and further to
remove parts of the engine area is not reasonable. The accused was handcuffed and placed
in a position that prevented him from knowing what they police were doing and the
English language limitations of Mr. Ortiz further eliminated his ability to limit die search
area other then common understanding that he was allowing a search of the passenger
compartment. In Commonwealth v Caputo, 439 Mass, 153, the court said that the
consent by silence, the numerous Miranda warnings and the accused in that case never
objecting to the police in his home, looking inside his car, all while they were investigating
a double homicide.
CONCLUSION:
. The accusetasserts that the police exceeded their policy as to a inventory search, the
car was Hot impounded nor was in held by the police but returned to the registered owner.
The consent to search was limited to the passenger compartment and was throughly
searched by a Kg and the police to look under die hood was based upon a failure of the
R/37
police to find drugs in the air filter of a car which was being searched and later finding
out that that is where they were hidden. The police had no reason to look under the strafe
filter for valuables to protect different parties from civil liability. Rather this was a search
was beyond consent and beyond the scope of an inventory search. For all of the above
reasons the accused suggests that all evidence seized and statements made be suppressed.
ANTHONY ORTIZ,
By his attorney
Richard J. Rubin
C.P.C.S.
101 State Street
Springfield, Ma. 01103
413 750-1620
BBO# 4330201............. "
R/38
CERTIFICATION OF SERVICE
I, RICHARD RUBIN, hereby certify that I caused a copy of the foregoing document to
the Office of the District Attorney, 50 State Street, Springfield, MA. 01103 by hand delivery, and
a original copy at the Superior Court Criminal Clerk's Office, this 14th day of October 2015.
RICHARD J. RUBIN
SUPREME JUDICIAL COURT
for Suffolk County
Case Docket
CASE HEADER
Case Status Interlocutory appeal allowed Status Date 01/28/2016
Nature Lv for interloc appeal Entry Date 11/16/2015
Sub-Nature Mot to Suppress Single Justice H
TC Ruling Mot to Suppress allowed TC Ruling Date 11/05/2015
SJ Ruling TC Number
Pet Role Below Plaintiff in lower court Full Ct Number
Lower Court Hampden Superior Court Lower Ct Judge Edward J. McDonough, Jr., J.
DOCKET ENTRIES
As of 01/28/2016 20:01
R/40
APPEALS COURT
Full Court Panel Case
Case Docket
CASE HEADER
Case Status No briefs yet Status Date 04/04/2016
Nature Crime: Possession of Gun Entry Date 04/04/2016
Sub-Nature Motion to Suppress Allowed SJ Number
Appellant Plaintiff Case Type Criminal
Brief Status Awaiting blue brief Brief Due 09/08/2016
Panel Argued/Submitted
Citation Decision Date
Lower Court Hampden Superior Court TC Number
Lower Ct Judge Edward J. McDonough, Jr., J. TC Entry Date 03/25/2015
FAR Number SJC Number
DOCKET ENTRIES
Entry Date Paper Entry Text
04/04/2016 Transcripts received: volumes: 1 on 1 CD; 09/30/2015 = Motion to SuppressA
04/04/2016 #1 Lower Court Assembly of the Record Package
04/04/2016 #2 Notice of entry sent.
04/14/2016 #3 Docketing Statement received from Commonwealth,A
05/16/2016 #4 MOTION to extend brief & appendix due date, filed by Commonwealth.
05/17/2016 RE#4: Allowed to 06/27/2016. Notice sent.
06/27/2016 #5. MOTION to extend brief & appendix due date, filed by Commonwealth
06/28/2016 RE#5: Allowed to 09/08/2016. No further enlargement should be anticipated. Notice sent.
As of 06/28/2016 20 00
R/41
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