United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS (Dkt. No. 88)
KATHERINE A. ROBERTSON, Magistrate Judge.
Defendant Osvaldo Vargas is charged with one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841 (Dkt. No. 2). Currently before the court is Defendant's motion to dismiss (Dkt. No. 88), which the government has opposed (Dkt. No. 91). The motion has been referred to the undersigned for report and recommendation (Dkt. No. 89). For the reasons stated below, the court recommends that Defendant's motion be denied.
On March 8, 2014, Holyoke Police Detectives Brendan Boyle and Jared Hammel, traveling in an unmarked vehicle, turned onto South Bridge Street in Holyoke, Massachusetts. The contiguous four-block radius around the area was known to the detectives to be a high crime area, and the site of numerous violent crimes and frequent narcotic activity and of significant gang activity involving the "La Familia" criminal street gang. As the detectives drove past the Lafayette Bar, they observed four individuals on the sidewalk, at least some of whom were watching a video on a cell phone. Based on previous encounters, the detectives were able to visually identify one of the individuals as Defendant and another as an individual named Santiago. Both Defendant and Santiago wore baggy clothing, including sweatshirts with front pockets and loose sweatpants.
The detectives parked on the street near the group of men. Immediately thereafter, both detectives observed behavior leading them to believe that the group had noticed the detectives' presence in the vicinity. One of the individuals began to walk in the direction of the Lafayette Bar and went inside, while Defendant walked away along South Bridge Street. The detectives observed Santiago quickly reach into the front pocket of his sweatshirt.
Detective Hammel had previously arrested Santiago following a shots fired call and had thereafter recovered two firearms that had been within Santiago's reach. Based on Hammel's training and experience, he knew individuals possessing firearms frequently keep these firearms in the pockets of their hooded sweatshirts. As a result of these observations, Detective Hammel exited his vehicle, drew his gun, and approached Santiago while yelling, "show me your hands." Santiago then lifted his shirt to demonstrate to Detective Hammel that he was unarmed. Upon seeing this motion, Detective Hammel reholstered his firearm. After he conducted a pat-frisk, which revealed that Santiago was not armed, Detective Hammel's inquiry of Santiago ended.
As Detective Hammel approached Santiago, Detective Boyle simultaneously walked toward Defendant. During his approach, Detective Boyle smelled the odor of burnt marijuana and observed Defendant to be smoking marijuana in violation of a Holyoke City Ordinance. Detective Boyle was aware of Defendant's prior arrests for crimes of violence, firearm possession, and drug distribution, including an incident in 2011 or 2012 in which Defendant ran from the police and threw a handgun to the ground, which discharged upon impact. Detective Boyle therefore decided to perform a pat-frisk as a safety precaution to determine whether Defendant was in possession of a firearm before issuing a citation for violation of the ordinance.
Upon patting down Defendant's right side pants pocket, Detective Boyle felt an object he immediately recognized as a group of bags of heroin held together by a rubber band. Detective Boyle then conducted a search incident to arrest. In a second pocket, Detective Boyle found another 10 bags of heroin held together by a rubber band, along with two other bundles containing 20 bags of heroin, for a total of 38 bags of heroin on Defendant's person. Detective Boyle also seized $1, 829.00 from one of Defendant's pockets and two cell phones at booking. The drug analysis from the UMASS drug lab confirmed that the bags contained heroin.
B. Procedural History
On May 1, 2014, a grand jury indicted Defendant for violation of 21 U.S.C. § 841, Possession with Intent to Distribute Heroin (Dkt. No. 2). On May 29, 2014, the government produced certain discovery to Defendant, including a narrative report written by Detective Boyle and a copy of Defendant's criminal record (Dkt. 16). On July 1, 2014, Defendant filed a letter requesting additional discovery pursuant to Local Rule 116.3, including, inter alia, the basis for Officer Boyle's assertions in his report that Defendant was "known to Detectives" and had been involved in "many incidents involving violent crime, narcotics and gun calls, " as well as all incident reports concerning "past incidents" referenced in Officer Boyle's report (Dkt. No. 17). The government responded on July 2, 2014, stating that Officer Boyle's assertions were based, in part, on Defendant's many prior arrests (Dkt. No 20). The government declined to provide any additional information or materials in response to these requests as beyond the scope of Fed. R. Crim. P. 16 and LR, D. Mass. 116 ( id. ). On July 22, 2014, Defendant filed a motion to compel additional discovery, including responses to the requests set forth above (Dkt. No. 25), which the government opposed (Dkt. No. 28). On August 14, 2014, the court (Neiman, J.) denied Defendant's motion to compel as to these requests (Dkt. No. 30).
On November 12, 2014, Defendant filed a motion to suppress the evidence seized from Defendant (Dkt. No. 42). The government opposed the motion on November 26, 2014, arguing, inter alia, that Detective Boyle was justified in pat-frisking Defendant for his safety based upon his reasonable belief that Defendant may have been in possession of a firearm because:
Det. Boyle knew that Vargas had previously been arrested for crimes of violence and drug distribution crimes. Specifically, Det. Boyle knew about a prior arrest in which while running from the police Vargas threw a handgun to the ground which discharged when it hit the ground. Detective Boyle also knew ...