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SJC-12273

COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT

NO. 2016-P-0466

COMMONWEALTH OF MASSACHUSETTS,
Appellant

V.
ANTHONY ORTIZ
Defendant-Appellee

BRIEF & RECORD APPENDIX FOR THE COMMONWEALTH


ON APPEAL FROM AN ORDER OF THE HAMPDEN COUNTY
SUPERIOR COURT DEPARTMENT ALLOWING
THE DEFENDANT'S MOTION TO SUPPRESS

HAMPDEN COUNTY

Anthony d. gulluni
District Attorney For
The Hampden District

CYNTHIA CULLEN PAYNE


Assistant District Attorney
Hall of Justice
50 State Street
Springfield, MA 01103
(413) 505-5960
B.B.O. #642322
cynthia.payne@ state.ma.us

September 8, 2016
TABLE OF CONTENTS

Table of Authorities...............................ii

Statement of the Issue........................... 1

Statement of the Case............................ 1

Statement of the Facts........................... 3

Argument .......................................... 9

THE MOTION JUDGE ERRONEOUSLY ALLOWED THE


DEFENDANT'S MOTION TO SUPPRESS THE
FIREARMS RECOVERED FROM THE AIR FILTER IN
THE MOTOR VEHICLE THAT THE DEFENDANT WAS
DRIVING BECAUSE THE DEFENDANT EXPRESSLY
PROVIDED HIS CONSENT TO SEARCH THE
VEHICLE FOR NARCOTICS AND FIREARMS, AND
WATCHED WITHOUT OBJECTION, AS THE OFFICER
SEARCHED THE VEHICLE, AND SINCE THE
OFFICER DID NOT EXCEED THE SCOPE OF THE
DEFENDANT'S CONSENT, THE DEFENDANT'S
SUBSEQUENT STATEMENT WAS NOT THE FRUIT OF
THE POISONOUS TREE................................ 9

Conclusion......................................... 21

Mass. R. App. P. 16 (k) Certificate of


Compliance With the Rules Pertaining to
the Filing of Briefs.............................. 22

Addendum........................................... Add/1

Commonwealth's Record Appendix R/l


TABLE OF AUTHORITIES
Cases

Bumper v. North Carolina,


391 U.S. 543 (1968)............................... 11

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

Commonwealth v. Isaiah I.,


448 Mass. 334 (2007)................................ 3

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

United States v. Jones, cert. denied,


541 U.S. 952 (2004), 356 F.3d 529
(4th Cir. 2004) ................................... 16

United States v. McSween,


53 F. 3d 684 (1995)................................ 17

Statutes

G.L. c. 90, 10.......................................6

G.L. c. 266, 60..................................... 2

G.L. c. 269, 10 (a) .................................. 1

G.L. c. 269, 10 (d) .................................. 1

G.L. c. 269, 10 (h) .................................. 1

G.L. c. 269, 10G (c) ................................. 1

G.L. c. 278, 28E.................................... 3

G.L. c. 279, 25 (a) .............................. 1, 2

Rules

Mass. R. Crim. P. 15(a)(2) ........................... 3

Constitional Provisions

Article Fourteen of the Massachusetts


Declartaion of Rights ............................... 9

Fourteenth Amendment of the United


States Constitution ................................. 9

Other Authorities

Holyoke, MA Code Ch. 38, 74 (1972) ................ 9

iv
ISSUE PRESENTED

Whether the motion judge erroneously allowed the

defendant's motion to suppress the firearms recovered

from the air filter in the motor vehicle that the

defendant was driving because the defendant expressly

provided his consent to search the vehicle for

narcotics and firearms, and watched without objection,

as the officer searched the vehicle, and since the

officer did not exceed the scope of the defendant's

consent, the defendant's subsequent statement was not

the fruit of the poisonous tree.

STATEMENT OF THE CASE

On March 25, 2015, the Hampden Count Grand Jury

indicted the defendant, Anthony C. Ortiz, for two

counts of unlawful possession of a firearm as a

habitual offender, in violation of G.L. c. 269, 10(a)

& (d) , and G.L. c. 269, 10G(c); two counts of

possession of ammunition without an identification


-1

card as a habitual offender, in violation of


t
o

269, 10(h) & (d), G.L. c. 269, 10G(c), and G.L. c.

279, 25(a); and receiving stolen property as a


habitual offender, in violation of G.L. c. 266, 60

and G.L. c. 279, 25(a). [No. 1523CR00273; R/2-17J.1

On July 31, 2015, the defendant moved to suppress

the physical evidence recovered from a search of his

motor vehicle, along with statements that he made to

the police after his arrest. [R/21, 23-27], An

evidentiary hearing on the defendant's motion was held

before McDonough, J., on September 30, 2015. [R/21].

On October 5, 2015, the Commonwealth filed a

post-hearing memorandum in opposition to the

defendant's motion to suppress. [R/21, 28-31] . On

October 14, 2015, the defendant filed a post-hearing

memorandum in support of his motion to suppress.

[R/21, 32-39]. The motion judge allowed the

defendant's motion to suppress and issued a memorandum

of decision on November 5, 2015. [R/22; Add/1-10].

The Commonwealth filed a notice of appeal in the

superior court on November 6, 2015. [R/22]. On

November 16, 2015, the Commonwealth filed a petition

seeking leave to appeal the suppression order in the

1 The citations used in this brief are abbreviated


herein as follows: the motion to suppress hearing
transcript is cited as "[T/page];" the record appendix
is cited as "[R/page];" and the Commonwealth's
addendum is cited as "[Add/page]."

2
Massachusetts Supreme Judicial Court for Suffolk

County. [No. SJ-2015-0476; R/22, 40]. The defendant

filed an opposition to the Commonwealth's application

on December 29, 2015. [R./40]. On January 28, 2016,

Hines, J. , sitting as the single justice, allowed the

Commonwealth's petition. [R/40].

The Massachusetts Appeals Court entered the case

onto its docket on April 4, 2016. [No. 2016-P-0466;

R/41]. The Commonwealth appeals pursuant to G.L. c.

278, 28E, and Mass. R. Crim. P. 15(a) (2) .

STATEMENT OF THE FACTS

The Commonwealth presented evidence through

Holyoke Police Department detectives Jared Hamel [T/7-

63] and George Montsalve [T/63-71] at the evidentiary

hearing on the defendant's motion. The following

recitation of facts is based upon the motion judge's

written' findings of fact, supplemented with

uncontroverted and undisputed testimony from the

motion hearing in order to provide a full narrative.

See Commonwealth v. Douglas, 472 Mass. 439, 444

(2015); Commonwealth v. Jones-Pannell, 472 Mass. 429,

431-32 (2015); Commonwealth v. Isaiah I., 448 Mass.

334, 337 (2007).

3
On January 23, 2015 at approximately 6 p.m.,

Detectives Hamel2 and Boyle were on patrol in the Flats

section3 in an unmarked police cruiser.4 [Add/1; T/10,

11, 40]. The detectives could hear "very loud, bass

thumping" music and determined that the music was

emanating from an apartment or a motor vehicle in the

vicinity. [Add/1; T/13]. Once the detectives located

the source of the noise, which was a brown Honda, they

activated their lights and conducted a traffic stop.5

[Add/2; T/13, 14, 43] .

2 Detective Hamel was a 13-year veteran of the Holyoke


Police Department, assigned to the narcotics division.
[T/7, 43]. In addition to the police academy, he had
attended narcotics trafficking courses on motor
vehicle "hides" and where to search vehicles for
contraband. [T/8]. He learned that suspects
sometimes hide firearms in multiple places within a
vehicle, including inside air filters and gas tanks.
[T/9] . Detective Hamel had previously found firearms
underneath the hood of a vehicle. [T/9-10] .

3 The Flats section of Holyoke is noted for high crime,


with street-gang activity, shootings, and illegal
narcotics. [Add/2; T/ll]. Police are regularly
dispatched to that area. [Add/2; T/12].

4 The two detectives were in plain clothes with police


badges around their necks. [Add/1-2; T/ll],

5 Excessively loud noise from a motor vehicle is a


violation of a city ordinance. [T/14, 41] . See
Holyoke, MA Code Ch. 38, 74 (1972) . The danger of
excessively loud music is that the driver would be
unable to hear the sirens of approaching emergency
vehicles. [Add/2; T/15, 62]. The officers stopped
4
Detective Hamel activated the unmarked cruiser's

emergency lights, and the driver pulled over the

vehicle to the side of the street. [Add/2; T/15, 16].

There were three occupants in the Honda.6 [T/15].

Detective Hamel went to the driver's side, recognized

the defendant from past incidents,7 and radioed for

other officers to assist. [Add/2; T/17].

Detective Hamel asked the defendant for his

license and registration. [Add/2; T/20]. The

defendant said something in English, then turned to

the front seat passenger and spoke to him in Spanish.8

the defendant's vehicle because the loud music was in


violation of the noise ordinance. [Add/2; T/14, 42].

6 The defendant was the driver. [T/22] . . The front


seat passenger was identified as George Ortiz, and the
back seat passenger was identified as Benito Agron.
[T/22]. Detective Hamel recognized George Ortiz from
past incidents and knew that he had been recently
arrested for trafficking in cocaine. [Add/3; T/20].

7 Detective Hamel had been involved in a foot pursuit


of the defendant several years earlier after which the
defendant had been arrested. [Add/2; T/17-18].
Detective Hamel knew that the defendant had been more
recently charged with attempted murder, along with
narcotics and firearms violations. [Add/2; T/18, 20],
Detective Hamel was nervous because he "had a known
felon [who] was sitting in the driver's seat .
[who had been] arrested for attempted murder....
[Detective Hamel was aware that the defendant had]
broken into apartments for narcotics." [T/45].

8 Detective Hamel was under the impression that the


defendant was initially "confused" and that George
5
[T/21]. Detective Hamel knew that the defendant spoke

a little English. [Add/2, 3; T/4 6] . The defendant

handed the detective his Massachusetts identification

card. [Add/3; T/21] . The defendant did not have a

license, nor did the other two occupants of the

vehicle.9 [Add/3; T/22, 23],

Detective Hamel asked the defendant if there were

any drugs or guns in the Honda. [Add/3; T/27], The

defendant immediately and clearly told the detective,

"No, you can check."10 11 [Add/3; T/27], Once the

defendant gave his consent, Detective Hamel asked all

three occupants to exit the Honda.11 [Add/4; T/28],

All three were pat-frisked and handcuffed for officer

Ortiz "translated" the detective's initial request.


[Add/3; T/21].

9 Operating a vehicle in Massachusetts without a


driver's license is an arrestable offense. [T/23].
See G.L. c. 90, 10. Because no one in the vehicle
had a driver's license, the police were authorized to
tow and impound the vehicle pursuant to Holyoke Police
Department policies and procedures. [T/23, 24],
According to the Holyoke Police Department policies
and procedures, prior to the tow and impound, a
vehicle and its contents must be inventoried. [Add/3;
T/24] . The inventory policy was admitted, into
evidence as Commonwealth's Exhibit 1. [T/26].

10 The defendant did not appear to be confused, nor did


he look to the other occupants for guidance. [T/28].

11 Shortly thereafter, a trooper with a K-9 arrived on


scene. [T/30]. While the dog "had some interest in
the back seat, he did not alert to anything." [T/30],
6
safety.12 [Add/4; T/29, 52]. The defendant was

advised that he was not under arrest. [T/52].

Detective Hamel was aware of a case in which

contraband had been hidden in a car's air filter, so

he asked Detective Boyle to check under the hood of

the Honda.13 [Add/4; T/31, 32], Detective Boyle found

a bag containing two firearms underneath the air

filter. [Add/4; T/33]. During the search, the

defendant was standing to the side of the Honda.

[Add/4; T/29, 30], The defendant did not object to

any portion of the search. [Add/4; T/62].

The detectives arrested the defendant after

finding the firearms. [T/60]. The defendant's

girlfriend, who was the registered owner of the Honda,

arrived on scene shortly thereafter and was allowed to

take the vehicle.14 [Add/5; T/37, 55, 68].

12 Detectives found a small amount of marijuana on


Benito Agron, and a large amount of cash and some
marijuana on George Ortiz. [Add/4; T/29]. Detective
Hamel did not find anything on the defendant's person.
[Add/4; T/29].

13 Detective Hamel knew that air filters "come[] right


out," and contain a "void underneath." [T/58].

14 Approximately 20 to 25 minutes elapsed from the time


of the stop until the registered owner appeared.
[T/38] .
7
The defendant gave a statement at the Holyoke

police station to Detective George Montsalve, who

spoke Spanish. [Add/5; T/63]. While the defendant

understood English, he was more comfortable with the

Spanish language. [Add/5; T/64]. After Detective

Montsalve advised the defendant of his rights pursuant

to Miranda v. Arizona15 in Spanish, the defendant

admitted that the guns found in the vehicle were his.

[Add/6; T/69].

While the motion judge found that the defendant's

consent was "unfetted by coercion" [Add/7], the motion

judge determined "that the scope of the defendant's

consent was limited to a search of narcotics or

firearms in the cabin of the vehicle and not under the

hood beneath the air filter." [Add/8]. Moreover, the

motion judge found that the Commonwealth failed to

establish that the defendant's lack of obj ection to

the search under the hood was not "mere acquiescence

to a claim of lawful authority." [Add/8]. In

addition, the motion j udge also determined that the

defendant's statement at the police station was a

fruit of the poisonous tree. [Add/9].

15 384 U.S. 436 (1966).


8
ARGUMENT

THE MOTION JUDGE ERRONEOUSLY ALLOWED THE DEFENDANT' S


MOTION TO SUPPRESS THE FIREARMS RECOVERED FROM THE AIR
FILTER IN THE MOTOR VEHICLE THAT THE DEFENDANT WAS
DRIVING BECAUSE THE DEFENDANT EXPRESSLY PROVIDED HIS
CONSENT TO SEARCH THE VEHICLE FOR NARCOTICS AND
FIREARMS , AND WATCHED WITHOUT OBJECTION, AS THE
OFFICER SEARCHED THE VEHICLE, AND SINCE THE OFFICER
DID NOT EXCEED THE SCOPE OF THE DEFENDANT'S CONSENT,
THE DEFENDANT'S SUBSEQUENT STATEMENT WAS NOT THE FRUIT
OF THE POISONOUS TREE.

The defendant moved to suppress the firearms that

the police recovered underneath the air filter in the

vehicle that the defendant was driving, and cited the

Fourth and Fourteenth Amendments to the United States

Constitution and Article 14 of the Massachusetts

Declaration of Rights. [R/2 6]. Despite the motion

judge's determination that the defendant's consent was

voluntary, the judge's subsequent ruling that "the

search of the air filter under the vehicle's hood was

beyond the scope of the defendant's consent" is

erroneous and should be reversed. The search of the

defendant's entire vehicle, including beneath the air

filter, was permissible, and did not exceed the scope

of the defendant's consent. See Florida v. Jimeno,

500 U.S. 248, 251 (1991).

"In reviewing a ruling on a motion to suppress,

[an appellate court] accept[s] the judge's subsidiary

9
findings of fact absent clear error 'but conduct[s] an

independent review of his ultimate findings and

conclusions of law.'" Commonwealth v. Scott, 440

Mass. 642, 646 (2004) , quoting from Commonwealth v.

Jiminez, 438 Mass. 213, 218 (2002). The reviewing

court "make[s] an independent determination of the

correctness of the judge's application of

constitutional principles to the facts as found."

Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

Based upon the relevant law, the judge's ruling should

be reversed.

The defendant was the driver of a vehicle

lawfully stopped in Holyoke due to a violation of a

city noise ordinance that prohibits excessively loud

music in a motor vehicle. [Add/1-2; T/13-14]. See

Commonwealth v. Santana, 420 Mass. 205, 207 (1995).

Because no one in the vehicle had a driver' s license,

the police might have been authorized to impound the

vehicle. [Add/3; T/23-24], See Commonwealth v.

Ellerbe, 430 Mass. 769, 775 (2000) . The detective

asked the defendant if there was anything in the

vehicle that the police should know about

specifically narcotics or firearms -- and the

defendant replied, "No, you can check." [Add/3;

10
T/27]. Detective Hamel then proceeded to search the

Honda pursuant to the defendant's consent. [Add/5;

T/57-58].

Warrantless searches are unreasonable unless an

exception to the warrant requirement applies. A

search authorized by consent is one such exception.

See Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973); Commonwealth v. Buswell, 468 Mass. 92, 105

(2014) (" [p] dice may conduct a search without a

warrant where the suspect freely and voluntarily has

consented to the search"). "Probable cause is not

required when the police have consent to conduct a

search and seizure." Commonwealth v. Sanna, 424 Mass.

92, 99 (1997).

Pursuant to both the Fourth Amendment and art.

14, it is the Commonwealth's burden to establish that

the consent was "freely and voluntarily given."

Commonwealth v. Carr, 448 Mass. 295, 300 (2010) citing

Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

"Whether the defendant's consent to the search of his

vehicle was voluntarily given is a question to be

resolved on the basis of the totality of circumstances

existing at the time of the consent." Commonwealth v.

Wallace, 70 Mass. App. Ct. 757, 762 (2008). "While no

11
factor by itself is conclusive, factors to consider

include the presence of armed, uniformed officers;

whether the defendant was informed of his right to

refuse consent; the age, intelligence, and other

personal characteristics of the defendant; and whether

the defendant was in custody when consent was given."

See Commonwealth v. Carr, 458 Mass. 295, 302-03

(2010). Here, the motion judge found that the

defendant's consent was freely and voluntarily given,

and was "unfetted by coercion." [Add/7].

At the outset, the defendant volunteered his

consent to search the Honda before Detective Hamel

even asked for it. The detective ' s question was

whether "there [wa]s anything in the vehicle that

[they] should know about, any narcotics or firearms in

the vehicle." [T/27]. The defendant could have

simply answered, "No." Instead, he replied, "No, you

can check." [T/27]. The defendant was not under

arrest at the time he consented. Cf. Commonwealth v.

LaBriola, 370 Mass. 366, 367 (1976) (defendant's

consent to open briefcase was voluntary even though he

was in custody at the time he gave consent) . He was

sitting in his vehicle, speaking with the detectives,

who were in plain clothes. [Add/6; T/ll, 27, 31].

12
Moreover, he had experience with the court system as

evidenced by the testimony of his prior arrests, and

appeared cooperative. See Commonwealth v. Burgess,

434 Mass. 307, 309-13 (2001) {finding valid consent,

in part, by individual who had prior experience with

the police). Accordingly, the motion judge properly

determined that the defendant voluntarily consented to

the search of the Honda. [Add/7].

The motion judge next considered whether the

search of the engine area, where the weapons were

discovered upon the removal of the air filter, fell

within the scope of the consent to search. [Add/7-9].

The motion judge relied upon State v. Troxell, 78 S.W.

3d 866 (2002), a Tennessee Supreme Court case, to

limit the scope of consent to the cabin of the Honda.

[Add/7]. In Troxell, a Tennessee trooper stopped the

defendant for speeding. See id. at 8 69. During his

interaction with the defendant, the trooper asked if

the defendant had "any weapons in the vehicle." Id.

When the defendant denied having any weapons, the

trooper asked if he "could take a look." Id. The

defendant consented to a search. See id. The trooper

searched the interior of the vehicle, the luggage

contained therein, and examined the underside of the

13
vehicle. See id. After observing that the gas tank

hose appeared to have removed or modified, the trooper

then instructed the defendant to drive to a service

station. See id.. The gas tank was then removed and

300 grams of cocaine were found inside. See id. The

defendant never objected or limited his consent. See

id. at 870. The majority in Troxell concluded that

the phrase "in the vehicle" did not include "in the

gas tank."16 Id. at 872.

"The scope of 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

given." Commonwealth v. Gaynor, 443 Mass. 245, 255

(2005), citing Jimeno, 500 U.S. at 251. "The standard

for measuring the scope of consent under the Fourth

Amendment and art. 14 is that of ob j ective

reasonableness, i.e., what would a reasonable person

have understood by the exchange between the officer

and the individual providing consent?" Commonwealth

v. Farnsworth, 76 Mass. App. Ct. 87, 94 (2010). "The

ultimate question is whether, in light of all the

16 The dissent in Troxell noted that it was reasonable


for the trooper to conclude that the defendant's
consent encompassed all areas in the vehicle which
could contain a weapon, and that the gas tank was
encompassed "in the vehicle." Id. at 875.
14
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, 178 (1980).

The motion judge, deciding that "in the vehicle"

only pertained to the cabin of the vehicle, limited

the defendant's consent to search to the interior of

the vehicle.17 [Add/7-8]. But, because there are

numerous places that drugs and guns can be secreted in

a vehicle, a reasonable officer would have assumed

that when the defendant stated, "No, you can check" in

response to a question as to whether there were any

drugs or guns in the vehicle, the defendant's consent

included permission to search the entire vehicle. See

Cantalupo, 380 Mass. at 179 ("the defendant's words

placed no limitations on the scope of the search to

which he was consenting").

Unlike Troxell, supra, upon which the motion

judge relied, in North Carolina, consent to search the

vehicle included the air filter. See State v. Lopez,

723 S.E. 2d 164, 167, 17 0-71 (N.C. Ct. App. 2012) ,

17 Under this rationale, the defendant's consent to


search the vehicle would not have included the trunk
of the vehicle.

15
citing Jimeno, 500 U.S. at 251 (where officer "asked,

'do you mind if I search the vehicle?' . . . the

'expressed object' was the vehicle" and "the hood and

air filter compartment are part of the vehicle") . As

in the instant case, the object of the search was the

car, and defendant was on notice that the detectives

would be looking for drugs or guns in areas of the car

that could have reasonably contained drugs or guns.

As a result, the officer was reasonable in concluding

that the defendant's consent to search included the

engine compartment. See Jimeno, 500 U.S. at 251;

Lopez, 723 S.E.2d at 171.

"Although it is a suspect's right to limit the

scope of a search to which he consents, the defendant

did not availhimself of that right." Gaynor, 443

Mass. at 256.See also United States v. Jones, 356

F.3d 529, 534 (4th Cir. 2004), cert, denied, 541 U.S.

952 (2004) ("a suspect's failure to object (or

withdraw his consent) when an officer exceeds limits

allegedly set by the suspect is a strong indicator

that the search was within the proper bounds of the

consent search"); Farnsworth, 76 Mass. App. Ct at 94

(the defendant's mother "accompanied [the officer]

throughout the house during the search, observed him

16
as he searched in the various locations, and never

expressed any limitation or reservation"); Lopez, 723

S.E.2d at 171 (the defendant saw what the officer was

doing and he did not object) . At no point did the

defendant ever voice any objection to the search.

[Add/4]. Without more from the defendant, a

reasonable person would not believe that the defendant

limited or revoked his consent. See Commonwealth v.

Caputa, 439 Mass. 153, 162-63 (2003) (where defendant

opened jacket and said "search me," the search of his

shoe was not unreasonable, especially considering that

the defendant was aware that drugs were the object of

the search, and the defendant did not obj ect to any

part of the search) . See also Commonwealth v.

Stewart, 469 Mass. 257, 261 (2014) ("consent to search

can be withdrawn or limited at any time before

completion of the search"). The defendant was present

during the search of the vehicle and his words and his

conduct, or lack thereof, placed no conditions or

limitations on the scope of the consent.18

18 Moreover, no tools were necessary to facilitate the


removal of the air filter. Compare United States v.
McSween, 53 F.3d 684, 685 (1995) (removal of interior
panels of vehicle with screwdriver found to be
reasonable where no objection voiced by defendant)
with State v. Arroyo-Sotelo, 884 P.2d 901, 905 (Or.
17
In his decision, the motion judge determined that

once the defendant was directed out of the Honda and

placed in handcuffs, he was in custody and "no longer

in a position to revoke Or limit his consent."

[Add/8]. The motion judge then erroneously concluded

that the Commonwealth had the burden to prove that the

defendant's continued lack of objection was "something

more than mere acquiescence to a claim of lawful

authority." [Add/8].

Because Detective Hamel was aware that the

defendant had prior arrests, including a charge for

attempted murder, and because the area in which the

stop occurred was a high-crime area known for gang

activity and multiple shootings, the defendant was

placed in handcuffs for officer safety upon exiting

the vehicle. [Add/12] . But, the defendant was not

under arrest at that point. [Add/4] . See

Commonwealth v. Franco, 419 Mass. 635, 642 (1995)

App. Ct. 1994) (finding "that a reasonable person


would [not] have understood defendant's general
consent to a search of his car for narcotics, money
and weapons, to authorize [officer] to remove screws
and pry the panel from the sidewall of the car") .
The lifting up of the air filter was not comparable to
the dismantling of an engine. See also Jimeno, 500
U.S. at 251-52 ("It is very likely unreasonable to
think that a suspect, by consenting to the search of
his trunk, has agreed to the breaking open of a locked
briefcase within the trunk").
18
("The fact that the defendant consented to the search

while under arrest does not preclude a finding that

the consent was voluntarily given."); Commonwealth v.

Gonzalez, 60 Mass. App. Ct. 903, 904 & n.5 (2003)

(holding that consent given by woman after being

placed under arrest was voluntary). See also

Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 570

(2002) (officer allowed to use reasonable measures to

ensure officer safety during traffic stop, including

handcuffs, without turning stop into an arrest) . The

motion j udge's ruling that despite finding the

defendant's consent voluntary, the defendant's lack of

objection to the search of the engine compartment was

"mere acquiescence to a claim of lawful authority"

imposes a greater burden on the Commonwealth than

mandated by case law. See Sanna, 424 Mass, at 97

("Consent [must be] unfettered by coercion, express or

implied, and also something more than mere

acquiescence to a claim of lawful authority")(internal

quotations omitted).

The motion judge also suppressed statements given

after the discovery of the firearms because he found

them to be the "fruits of the poisonous tree."

[Add/9]. Because the firearms should not have been

19
suppressed, the defendant's statement was not the

fruit of the poisonous tree and should not have been

suppressed. See generally Commonwealth v. Conway, 2

Mass. App, Ct. 547, 553 (1974) (v'fruit of the

poisonous tree" doctrine applies to verbal

statements) . Because the police conducted a lawful

threshold inquiry, followed by a search with valid

consent, the scope of which was not exceeded, the

motion judge erred in suppressing the evidence See

Cantalupo, 380 Mass. at 179.

20
CONCLUSION

For the foregoing reasons, the Commonwealth

respectfully requests this Honorable Court to reverse

the motion judge's allowance of the defendant1s motion

to suppress on Docket Number 15-00273, and to remand

the case to the Hampden Division of the Superior Court

for further proceedings.

Respectfully submitted,

THE COMMONWEALTH
ANTHONY D. GULLUNI
DISTRICT ATTORNEY
HAMPDEN DISTRICT

ASSISTANT DISTRICT ATTORNEY


HAMPDEN DISTRICT
Hall of Justice
50 State Street
Springfield, MA 01102
(413) 505-5960
BBO #642322
Cynthia.Payne@state.ma.us

21
CERTIFICATE OF COMPLIANCE WITH MASS. R. APP. P. 16 (k)

I hereby certify, as required by Mass. R. App. P.


16(k) , that this brief complies with the rules of
court that pertain to the filing of briefs, including,
but not limited to, the following: Mass. R. App. P.
16 (a)(6); 16(e); 16(f); 16(g); 16(h); Mass. R. App.
P. 18; and Mass. R. App. P. 20.

Cyntynia Cullen Payn^


ASSISTANT DISTRICT ATTORNEY
HAMPDEN DISTRICT

CERTIFICATE OF SERVICE

I hereby certify under the pains and penalties of


perjury that two (2) true copies of the Commonwealth's
brief and appendix have been sent by first class mail,
postage prepaid to Rebecca A. Jacobstein, Esq.,
Committee for Public Counsel Services, 44 Bromfield
Street, Boston, MA 02108, on this date.

Date:

HAMPDEN DISTRICT

22
COMMONWEALTH OF MASSACHUSETTS

HAMPDEN, ss. SUPERIOR COURT


HAMPDEN COUNTY INDICTMENT NO. 15-00273
SUPERIOR COURT
FILED
COMMONWEALTH
NOV - 5 20t5 . /

VS.

OF C0UBTS ANTHONY ORTIZ

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION


TO SUPPRESS EVIDENCE

On March. 25, 2015, a Hampden Comity Grand Jury charged Anthony Ortiz

(defendant)) with two counts of illegal possession of a firearm, in violation of G. L. c, 269, ,

10 (a), two counts of unlawful possession of ammunition without an identification card, in

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

with attempted murder and with narcotic and firearm offenses.

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

search warrant after Ortiz was arrested for trafficking in cocaine.

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

alternative to a lawful impoundment See Exh. 1.

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

infraction, and the occupants were not questioned at the scene.

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

which permitted them to search the car without a warrant

At the station, Officer George Monsalve (Monsalve1), a Spanish-speaking officer

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

in the vehicle belonged to him.

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

citations and quotation marks omitted).

When determining whether consent is given voluntarily, no one particular factor is

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

unfettered by coercion. See Voisiney 414 Mass, at 783.

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

en. Gaynor, 443 Mass, at 255.

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.

The question of consent is further complicated by Hamel's knowledge feat defendant

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

handcuffs when consented-to search occurred); Commonwealth v. Farnsworth, 76 Mass. App.

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

being Mirandized did not act as automatic revocation of consent).

2. Statements at the police station

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.

G.L. c. 269, 10(a)


Whoever, except as provided or exempted by statute,
knowingly has in his possession; or knowingly has
under his control in a vehicle; a firearm, loaded or
unloaded, as defined in section one hundred and
twenty-one of chapter one hundred and forty without
either:

(1) being present in or on his residence or place of


business; or
(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) havingcomplied with the provisions of sections
one hundred and twenty-nine C and one hundred and
thirty-one G of chapter one hundred and forty; or
(5) having complied as to possession of an air rifle
or BB gun with the requirements imposed by section
twelve B; and whoever knowingly has in his possession;
or knowingly has under control in a vehicle; a rifle
or shotgun, loaded or unloaded, without either:
(1) being present in or on his residence or place of
business; or

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.

No person having in effect a license to carry firearms


for any purpose, issued under section one hundred and

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.

The provisions of section eighty-seven of chapter two


hundred and seventy-six shall not apply to any person
18 years of age or older, charged with a violation of
this subsection, or to any child between ages fourteen
and 18 so charged, if the court is of the opinion that
the interests of the public require that he should be
tried as an adult for such offense instead of being
dealt with as a child.

The provisions of, this subsection shall not affect the


licensing requirements of section one hundred and
twenty-nine C of chapter one hundred and forty which
require every person not otherwise duly licensed or
exempted to have been issued a firearms identification
card in order to possess a firearm, rifle or shotgun
in his residence or place of business.

G.L. c. 269, 10(d)


Whoever, after having been convicted of any of the
offenses set forth in paragraph (a), (b) or (c)
commits a like offense or any other of the said
offenses, shall be punished by imprisonment in the
state prison for not less than five years nor more
than seven years; for a third such offense, by
imprisonment in the state prison for not less than
seven years nor more than ten years; and for a fourth
such offense, by imprisonment in the state prison for
not less than ten years nor more than fifteen years.
The sentence imposed upon a person, who after a
conviction of an offense under paragraph (a) , (b) or
(c) commits the same or a like offense, shall not be
suspended, nor shall any person so sentenced be
eligible for probation or receive any deduction from
his sentence for good conduct.

G.L. c. 269, 10(h)


Whoever owns, possesses or transfers a firearm, rifle,
shotgun or ammunition without complying with the

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.

G.L. c. 269, 10G(c)


Whoever, having been previously convicted of three
violent crimes or three serious drug offenses, or any
combination thereof totaling three, arising from
separate incidences, violates the provisions of said
paragraph (a) , (c) or (h) of said section 10 shall be
punished by imprisonment in the state prison for not
less than 15 years nor more than 20 years.

G.L. c. 278, 28E


An appeal may be taken by and on behalf of the
commonwealth by the attorney general or a district
attorney from the district court to the appeals court
in all criminal cases and in all delinquency cases
from a decision, order or j udgment of the court (1)
all owing a mot ion to dismiss an indie tment or
complaint, (2) allowing a motion to suppress evidence,
or (3) denying a motion to transfer pursuant to
section sixty-one of chapter one hundred and nineteen.

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.

An application for an appeal from a decision, order or


judgment of the superior court determining a motion to
suppress evidence prior to trial may be filed in the
supreme judicial court by a defendant or by and on
behalf of the commonwealth by the attorney general or
a district attorney. If such application is denied, or
if such application is granted but the interlocutory
appeal is heard by a single justice, the determination
of the motion to suppress evidence sha 11 be open to
review by the full court after trial in the same
manner and to the same extent as determinations of
such motions not appealed under the interlocutory
procedure herein authorized.

Rules of practice and procedure with respect to


appeals authorized by this section shall be the same
as those applicable to criminal appeals under the
Massachusetts Rules of Appellate Procedure.

G.L. c. 279, 25(a)


Whoever is convicted of a felony and has been
previously twice convicted and sentenced to state
prison or state correctional facility or a federal
corrections facility for a term not less than 3 years
by the commonwealth, another state or the United
States, and who does not show that the person has been
pardoned for either crime on the ground that the
person was innocent, shall be considered a habitual
criminal and shall be punished by imprisonment in
state prison or state correctional facility for such
felony for the maximum term provided by law.

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.

Mass. R. Crim. P. 15(a)(2)


A defendant or the Commonwealth shall have the right
and opportunity to apply to a single justice of the
Supreme Judicial Court for leave to appeal an order
determining a motion to suppress evidence prior to
trial. If the single justice determines that the
administration of justice would be facilitated, the
justice may grant that leave and may hear the appeal
or may report it to the full Supreme Judicial Court or
to the Appeals Court.

Mass. R. Crim. P. 15(b)(1)


An appeal under subdivisions (a) (1) and (a) (3) shall
be taken by filing a notice of appeal in the trial
court within thirty days of the date of the order
being appealed. An application for leave to appeal
under subdivision (a)(2) shall be made by filing
within ten days of the issuance of notice of the order
being appealed, or such additional time as either the
trial judge or the single justice of the Supreme
Judicial Court shall order, (a) a notice of appeal in
the trial court, and (b) an application to the single
justice of the Supreme Judicial Court for leave to
appeal.

Massachusetts Declaration of Rights, art. 14


Every sub j ect has a right to be secure from all
unreasonable searches, and seizures, of his person,

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.

United States Constitution - Fourth Amendment


The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.

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

Hampden County Superior Court Docket,


Docket No. 1579CR00273........................... R/18

Defendant's Motion to Suppress Evidence,


Docket No. 15-0273............................... R/23

Commonwealth's Post Hearing Memorandum in


Opposition to Suppression,
Docket No. 15-0273............................... R/28

Defendant's Memorandum on Scope of


Inventory Search Scope of Consent to
Search After Allowed to Check,
Docket No. 15-0273............................... R/32

Supreme Judicial Court Docket,


Docket No. SJ-2015-0476 ......................... R/40

Appeals Court Docket,


Docket No. SJ-2015-0476 ........................ R/41

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,

ATTEST; Assistant Clerk

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

Foreperson of the Grand Jury ISvSf District Attorney

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

Foreperson of the Grand Jury District Attorney

R/4
G.L. c. 279 s. 25(a)

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 5,20Q9 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)

THE JURORS for the COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH


FURTHER PRESENT THAT

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

Foreperson of the Grand Jury < District Attorney

RETURN
HAMPDEN, ssOn , 2015, tills indictment Was returned and presented to said
Superior Cop^

ATTEST? Assistant Clerk

R/7
G.L.c.269 s. 10G(c)

THE JURORS for the COMMONWEALTH OF MASSACHUSETTS ON THEIR OATH


FURTHER PRESENT THAT

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

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 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:

ATTES Assistant Clerk

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

Foreperson of the Grand Jury District Attorney

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.

ATTE2 Assistant Clerk

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

ATTES: y/l^ Assistant Clerk

R/14
G.L.c. 279 s. 25(a)

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 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

Oreperson of the Grand Jury District Attorney

, 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 Charge Event Tickler Docket | Disposition

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

Party Charge Information


Ortiz, Anthony C. - Defendant
Charge # 1: 269/10/FF-0 - Felony MACHINE GUN, POSSESS, LOADED c269 S.10(n)
Original Charge 269/10/FF-0 MACHINE GUN, POSSESS, LOADED
c269 s.10(n) (Felony)
Indicted Charge
Amended Charge
Ortiz, Anthony C. - Defendant
Charge # 2: 269/10/FF-0 - Felony MACHINE GUN, POSSESS, LOADED c269 s.10(n)
Original Charge 269/10/FF-O MACHINE GUN, POSSESS, LOADED
c269 s.10(n) (Felony)
Indicted Charge
Amended Charge
Ortiz, Anthony C. - Defendant
Charge # 3 : 269/10/TT - AMMUNITION WITHOUT FID CARD, POSSESS c269 10(h)(1)
Original Charge 269/10/TT AMMUNITION WITHOUT FID CARD,
POSSESS c269 10(h)(1)
Indicted Charge
Amended Charge
Ortiz, Anthony C, - Defendant
Charge U 4 : 269/10/G-2 - Misdemeanor - more than 100 days Incarceration FIREARM WITHOUT FID
CARD, POSSESS c269 s.l0(h)
Original Charge 269/10/G-2 FIREARM WITHOUT FID CARD,
POSSESS c269 s. 10(h) (Misdemeanor- more than
100 days incarceration)
Indicted Charge
Amended Charge
-----
- ...... ... ----- .. - ------------------ )

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

Date Session Location Type Event Judge Result


04/02/2015 Criminal 1 - Ct. Arraignment Held as Scheduled
09:01 AM Rm. 1
04/30/2015 Criminal 1 - Ct Bait Hearing Held as Scheduled
09:29 AM Rm. 1
06/01/2015 Criminal 1 - Ct. Pre-Trial Hearing Held as Scheduled
09:19 AM Rm. 1
08/05/2015 Criminal 1 - Ct Evidentiary Hearing on Rescheduled
09:15 AM Rm. 1 Suppression
08/05/2015 Criminal 1 - Ct SPRF-3rd FL, Bail Hearing Rup, Hon. Mary-Lou Held as Scheduled
09:29 AM Rm. 1 CR 1 (SC)
09/08/2015 Criminal 1 - Ct. SPRF-3rd FL, Evidentiary Hearing on Page, Hon. Tina Not Held
09:15 AM Rm. 1 CR 1 (SC) Suppression
09/15/2015 Criminal 1 - Ct. Final Pre-Trial Not Held
09:39 AM Rm. 1 Conference
09/16/2015 Criminal 1 - Ct Final Pre-Trial Rescheduled
09:39 AM Rm. 1 Conference
09/30/2015 Criminal 1 - Ct Jury Trial Not Held
09:07 AM Rm. 1
09/30/2015 Criminal 1 - Ct SPRF-3rd FL, Evidentiary Hearing on Page, Hon. Tina Not Held
09:15 AM Rm. 1 CR 1 (SC) Suppression
09/30/2015 Criminal 1 - Ct, SPRF-3rd FL, Final Pre-Trial Page, Hon. Tina Held as Scheduled
09:39 AM Rm. 1 CR 1 (SC) Conference
09/30/2015 CR session 3 - SPRF-3rd FL, Evidentiary Hearing on McDonough, Jr., Hon. Held Under
10:00 AM Ct. Rm.5 CR 3 (SC) Suppression Edward J advisement
10/21/2015 Criminal 1 - Ct SPRF-3rd FL, Jury Trial McDonough, Jr., Hon. Not Held
09:07 AM Rm. 1 CR 1 (SC) Edward J
10/29/2015 Criminal 1 - Ct SPRF-3rd FL, Conference to Review McDonough, Jr., Hon. Not Held
09:35 AM Rm. 1 CR 1 (SC) Status Edward J
11/03/2015 Criminal 1 - Ct SPRF-3rd FL, Conference to Review McDonough, Jr., Hon. Held as Scheduled
09:35 AM Rm. 1 CR 1 (SC) Status Edward J
11/09/2015 Criminal 1 - CL SPRF-3rd FL, Bail Hearing McDonough, Jr., Hon. Held as Scheduled
09:29 AM Rm. 1 CR 1 (SC) Edward J
01/05/2016 Criminal 1 * Ct Conference to Review
09:35 AM Rm. 1 Status
11/10/2016 Criminal 1 - Ct Conference to Review Not Held
09:35 AM Rm. 1 Status

Ticklers

Tickler Start Date Days Due Due Date Completed Date

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

Docket Information '

Docket Docket Text File Ref


Date Nbr.
03/25/2015 Indictment returned 1
03/25/2015 RE: offense #1: G.L. c.269 s. 10(d)
03/25/2015 RE: offense #1: G.L c. 269 s. 10G(c)
03/25/2015 RE: offense #1: G.L c. 279 s. 25(a)
03/25/2015 RE: offense #2: G.L. c. 269 s. 10(d)
03/25/2015 RE: offense #2: G.L. c. 269 s. 10G(c)
03/25/2015 RE: offense #2: G.L. c. 279 $. 25(a)
03/25/2015 RE: offense #3: G.L. c. 269 s. 10G(c)
03/25/2015 RE: offense #3: G.L. c. 279 s. 25(a)
03/25/2015 RE: offense #4: G.L. c. 269 s.10G(c)
03/25/2015 RE; offense #4: G.L c. 279 s. 25(a)
03/25/2015 RE: offense #5: G.L. c. 279 s. 25(a)
03/30/2015 Habed for arraignment issued ret 4/2/15
04/02/2015 Deft arraigned before Court
04/02/2015 Committee for Public Counsel Services appointed, pursuant to Rule 53
04/02/2015 Deft waives reading of indictments
04/02/2015 RE Offense 1 :PIea of not guilty
04/02/2015 RE Offense 2:Ptea of not guilty
04/02/2015 RE Offense 3:Plea of not guilty
04/02/2015 RE Offense 4:Plea of not guilty
04/02/2015 RE Offense 5:Plea of not guilty
04/02/2015 Bait set $75,000 cash only without prejudice by agreement (Richard
Carey, Justice)
04/02/2015 Bail warning read (Carey, J)
04/02/2015 Interpreter present McDonald, Enrique on 4/2/2015
04/02/2015 Assigned to Track ''A", see scheduling order
04/02/2015 Tracking deadlines Active since return date
04/02/2015 Ball: mittimus issued 2
04/30/2015 After hearing bail reduced to $30,000.00 cash/$300,000.00 surety
(Carey, J)
04/30/2015 Ball warning read
04/30/2015 Bail: mittimus issued 3
06/01/2015 Pre-trial conference report filed 4

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

Disposition Date Case Judge


Active 04/02/2015

R/22
COMMONWEALTH OF MASSACHUSETTS

HAMPDEN, ss SUPERIOR COURT


DEPARTMENT OF
THE TRIAL COURT
#15-0273

COMMONWEALTH

ANTHONY C. ORTIZ
3 f 2015
l t

MOTION TO SUPPRESS EVIDENCE

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

reasonable suspicion, no search warrant, no exigent circumstances, not pursuant to

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

in part the following events were alleged to have occurred.

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;

as date/time reported, 01/13/2015,1752, arrest 01/23/15,1837. The police report is dated as

created on 01/26/15, three days after the arrest.

The accused agrees in part and disputes in part the allegations alleged in the reports.

On 1/23/15, Detectives; Jairad Hamel and B. Boyle were in a unmarked cruiser

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

opinion ed that the sound was in violation bf miscellaneousmunicipal motor vehicle

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

police at the scene and later at the police station.

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

Constitution of the Commonwealth of Massachusetts and M.G.L. Chapter 276 were

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

police after his arrest.

R/2 6
Attached please find the affidavit of the accused.

Counsel requests that he be allowed to file a memorandum of law after hearing.

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

HAMPDEN, ss. SUPERIOR COURT


DEPARTMENT
Indictment No. 15-0273

COMMONWEALTH

V.

ANTHONY ORTIZ

POST HEARING MEMORANDUM IN OPPOSITION TO SUPPRESSION

The Commonwealth submits the following memorandum in opposition of the


Defendants Motion to Suppress. An evidentiary hearing (hereinafter hearing) was held on
September 29,2015 before Honorable Edward McDonough. The Court was presented with
testimony from two of the Commonwealths witnesses from the Holyoke Police Department:
Detective Jorge Monsalves and Detective Jared Hamel. Upon information and belief the record
of the hearing reflects that at the time of the stop, Detective Hamel asked the Defendant if there
were any weapons or narcotics in the vehicle, to which the Defendant replied No, you can
check. The Defendant was then asked to exit the vehicle and wait beside it while the search of
the car was performed. The police then searched the interior of the vehicle. Relying on past
information from other officers, as well as his own experience and training, Detective Hamel
recalled that narcotics and firearms could be found inside the air filter compartment of vehicles.
For these reasons, police opened the air filter compartment and discovered a bag containing two
firearms. The issue now remains if the search of the cars air filter exceeded the scope of the
Defendants consent to search the car. The Commonwealth will not advance the argument that
the police actions were justified by an inventory search.

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.

909 at 913 (1990),)

R/30
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

The .thTalcpurt

M^uyipN^EAftrtt

SCOPE OF CONSENT TQ'SEAKCKTAfTEff AtlOVBEP TDC-HECK

MdtlbW6.SA^pSSt W$aril 4$

reaSqji'th spspects tb&th person hasmp)(tte!^jroonimiw.MBtOrWabl?utit>cam,T,'ifea'c^rr,<5'

Gumamm

pfftce^ejijje/jeAee. Id ttfdbs.-

B5* Ut

fKesi

5-tbGib.i

to address:
m M # i8 u i3 8 '3 t,

S.eargIj pfiari 9ptsmob ite^kr the scjcused is asked ifthece-Ts narcotlcs orweapons rn-ihe v.ehid'e antf

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

and interior revealed no illegal contraband.

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.

R/33
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

bag In the air filter.

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

transported to the police station.

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

compartment, trunk and glove/map box

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

suppressed a search of an accused's backpack which was found to be a warrantless

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)

(in "the context of (an) inventory search or administrative inspection!,]..,an officers


* i

motive can invalidate!]objectively justifiable behavior under the Fourth Amendment).

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

supported by evidence of reasonable suspicion or probable cause. In the case of

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

search of the passenger compartment was justified by reasonable suspicion, information

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

R/36
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

for'evidence without probable cause or reasonable suspicion) exigent circumstances. This

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

COMMONWEALTH v. ANTHONY ORTIZ


SJ-2015-0476

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.

INVOLVED PARTY ATTORNEY APPEARANCE


Commonwealth Heidi M. Ohrt-Gaskill, Assistant District Attorney
Plaintiff/Petitioner
Anthony Ortiz Richard J. Rubin, Esquire
Defendant/Respondent

DOCKET ENTRIES

11/16/2015 Case entered.


11/16/2015 #1 Commonwealth's Application For Leave To Appeal An Order Allowing Defendant's Motion
To Suppress with Certificate of Service and attachments filed by ADA Heidi Ohrt-Gaskill.
12/29/2015 #2 Accused's Opposition To Commonwealths Mass. R. Crim. P. 15 (a) (2) and G, L. c. 278,
28 E Application Requesting That This Court Grant Leave To Appeal A Suppression
Order From The Hampden County Division Of The Superior Court with Certificate of
Service filed by Atty. Richard Rubin.
01 /27/2016 Under advisement. (Hines, J.).
01/28/2016 #3 ORDER: Interlocutory appeal allowed; to Appeals Court. (Hines, J.)
01/28/2016 #4 Notice to counsel/parties, regarding paper #3 filed.

As of 01/28/2016 20:01

R/40
APPEALS COURT
Full Court Panel Case
Case Docket

COMMONWEALTH VS. ANTHONY C. ORTIZ


2016-P-0466

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

INVOLVED PARTY ATTORNEY APPEARANCE


Commonwealth Elizabeth Dunphy Farris, A.D.A.
Plaintiff/Appellant Cynthia Cullen Payne, A.D.A.
Awaiting blue brief
2 Extensions, 115 Days
Anthony C. Ortiz Rebecca A. Jacobstein, Esquire
Defendant/Appellee
Awaiting red brief

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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