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Commonwealth v. Moreno

Superior Court of Massachusetts, Worcester

June 14, 2016

Commonwealth
v.
Richard Moreno No. 134813

          OPINION

          Honorable Shannon Frison, Justice

         FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

         The defendant, Richard Moreno, is charged with Armed Robbery, as a Habitual Criminal, in violation of G.L.c. 265, § 17 and G.L.c. 279, § 25.[1] The defendant moves to suppress evidence and statements resulting from his arrest at 10 Cherry Street, Fitchburg, Massachusetts, on February 20, 2013.[2] He claims a violation of his rights under the Fourth, Sixth, and Fourteenth Amendments of the U.S. Constitution, Articles XII and XIV of the Massachusetts Declaration of Rights, and G.L.c. 276.

         This Court conducted two evidentiary hearings, on February 4, 2016 and March 9, 2016. Upon the review of the exhibits and written memoranda of counsel, and the careful consideration of the testimony of the witnesses, the Court rules that the defendant's motion to suppress evidence and statements must be ALLOWED .[3]

         FINDINGS OF FACT

         The court finds the following facts based upon the testimony of Joseph Frazier, E'dris Hardison, Ms. Wendy Hardison Moreno, Massachusetts State Police Trooper Jeffrey Sullivan, Worcester Police Detective Robert Johnson, Worcester Police Sergeant Gary Quitadamo, and Worcester Police Detective James O'Rourke.

         On February 11, 2013 a person robbed a TD Bank North in Worcester, Massachusetts. Sergeant Quitadamo was involved in the investigation of the TD Bank North robbery. Based on an interview with a Mr. Gerald Berryman, a suspect in the case, he was able to develop a second suspect--the defendant. Sergeant Quitadamo started investigating the defendant, and learned that he spent some time at the Rainbow Motel in Shrewsbury after the robbery. Sergeant Quitadamo went to the Rainbow Motel on February 18th and interviewed the desk clerk. The clerk provided him with the following information from the registration card for the room where the defendant was staying: Richard Moreno, 10 Cherry St., Fitchburg, Nissan, license plate number 583JG0. Upon returning to the police station, Sergeant Quitadamo ran the defendant's name and license plate number through the system and confirmed his address at 10 Cherry Street. The vehicle that came up registered to the defendant was a Chevy SUV-type vehicle, plate no. 583JG0. He also ran a search on Ms. Moreno, and confirmed that she resided at 10 Cherry Street and owned a 2008 Nissan Sentra, license plate number 311DP1. He was not present during the later execution of the arrest warrant.

         Detective O'Rourke also interviewed Mr. Berryman and applied for the criminal complaint for the defendant. That application listed the defendant's address as 10 Cherry Street, an address that he obtained from Sergeant Quitadamo. The straight warrant generated by the Worcester District Court Clerk's office mistakenly listed the address as 1 Cherry Street. Detective O'Rourke also did not participate in the later execution of the warrant.

         Trooper Sullivan executed the arrest warrant for defendant Richard Moreno at 10 Cherry Street with several members of the Worcester Police Department and the Fitchburg Police Department. He confirmed the address by doing his own research, but does not remember what he did exactly to confirm it. 10 Cherry Street was a multi-family house with a parking lot and a chain-linked fence. Trooper Sullivan did not know which apartment the defendant lived in. The officers arrived at approximately 9 A.M. They observed a black Nissan Sentra parked outside the residence. Trooper Sullivan knew that a Nissan vehicle was allegedly involved in the robbery. He got the information on the vehicle from the Worcester Police Department, and was not aware that the license plate of the vehicle parked outside 10 Cherry Street did not match the license plate of the Nissan allegedly involved in the robbery.

         Upon reaching 10 Cherry Street, Trooper Sullivan tried to open the common door of the building, but it was locked. He started yelling and knocking on windows. Beginning here, the defense and Commonwealth part ways as to the remainder of the facts. Trooper Sullivan and Detective testified that a woman answered the door and led the officers to the second floor of the building and opened two doors for them to enter the apartment in which Richard Moreno sat. However, after the close of the first hearing on this matter, the defendant requested a further hearing and presented evidence that contradicts that version of events. The defendant contends that, in fact, no woman was present in the building at the time and that police officers gained entry to the outside common door, the door leading to the upstairs apartment, and the door to the actual apartment by force and without consent of any occupant.[4]

         At the time of the warrant execution, Joseph Frazier was at his residence at 10 Cherry Street. Mr. Frazier occupied the first-floor apartment. Mr. Frazier's sister, Ms. Moreno, lived on the second floor with her husband, the defendant, and her son, Mr. Hardison. Mr. Frazier heard rapping on his window. He looked out without letting himself be seen, and saw a few police officers outside, moving around. He went out into the hallway and opened the common door of the house a few inches to be able to speak with the police officers outside. At the common door, the officers said they were looking for Richard Moreno. Mr. Frazier said he did not know if he was in the building and tried to close the door on the officers. The officers pushed the door back open against Mr. Frazier and came into the common hallway.

         One officer asked Mr. Frazier where he lived. Mr. Frazier pointed to his apartment door, and the officer told him " Get in there." Frazier complied and went into his apartment without further interaction with the police officers. There were no other civilians in the hallway, and no women present. The police did not ask for permission to come into the building. The officers opened the door to the second-floor apartment and headed up the stairs.

         Mr. Hardison was at his residence, the second-floor apartment of 10 Cherry Street, when the officers came up the stairs leading to the apartment. He has lived there with his mother, Ms. Moreno, and the defendant for fifteen years. That morning, Ms. Moreno was at work. Mr. Hardison was in his bedroom on the third floor when he heard heavy footsteps, like " multiple people trotting." [5] Mr. Hardison and the defendant were the only people in the apartment at the time.

         Mr. Hardison went down to the second-floor landing and saw multiple officers upstairs in tactical gear. There were roughly eight to nine officers present. The officers stopped him at the top of the staircase and would not allow him into his apartment. Mr. Hardison saw officers open the living room door to the second-floor apartment on their own. The defendant was on the second floor. Mr. Hardison asked police if they had a warrant, to which the officers replied that it was coming. Mr. Hardison looked at the bottom of the staircase and saw Sergeant Jackson, whom he has known for a long time. Sergeant Jackson told him he would explain the situation to him, but Mr. Hardison never went down to talk to him. The officers never produced a warrant. Mr. Hardison started recording the conversations with his ...


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