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United States v. Barbosa

United States District Court, D. Massachusetts

July 22, 2016

JOHN BARBOSA, Defendant.



         I. Introduction

         On November 12, 2015, a grand jury indicted Defendant John Barbosa (“Barbosa”) on a charge of Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. § 922(g)(1). Barbosa has moved to suppress the firearm and ammunition which were seized incident to an arrest. Barbosa contends the search was unlawful because (1) the government has not established that an arrest warrant was validly issued prior to the arrest and (2) there was insufficient probable cause to support the arrest warrant. For the following reasons, Barbosa’s motion is DENIED.

         II. Background

         According to the Application for Criminal Complaint dated August 8, 2015, and signed by Officer Gregory Sirois of the New Bedford Police Department, Jillian Poeira and her mother Ana Poeira spoke with Officer Sirois at approximately 12:45 p.m. that day. Def.’s Mot. Suppress Ex. A 3 [#37-1]. They reported that at 7:00 that morning, Barbosa knocked on the door to Ana and Jillian Poeira’s home. The Poeiras reported that when Ana Poeira opened the door, Barbosa pushed his way inside demanding to see Jillian Poeira. The Poeiras reported further that Ana Poeira pushed Barbosa against the wall and held him there, and as she did, he raised a black firearm into the air, pointed it at Ana and Jillian Peoeira and and threatened to “kill all of you.” Id. Jillian Poeira’s two children from a prior relationship with Barbosa’s cousin were present during the incident. Id. The women reported that Ana Poeira managed to push Barbosa back out the door, at which time he left. Id. When asked why they waited nearly six hours to make the report, Ana Poeira stated that she had a doctor’s appointment and Jillian Poeira stated that she was scared. Id.

         The Application reports further that Jillian Poeira told Officer Sirois that she and Barbosa were formerly boyfriend and girlfriend and had lived together for a period of time, along with the two children. Id. Jillian Poeira also told Officer Sirois that after she and Barbosa ended their relationship in January, she moved into her mother’s house (for which the Poeiras provided an address) and Barbosa stayed in the home they had been living in together for a couple of months before leaving and splitting his time between Boston and Atlanta, Georgia. Id. Jillian Poeira stated that Barbosa had returned to the New Bedford area two weeks before the incident. Id. The application also reports that Jillian Poeira informed Officer Sirois that Barbosa drove a gray Volvo station wagon and that Officer Sirois confirmed that a gray Volvo was registered in Barbosa’s name. Id. Officer Sirois put out a “Be On the Look Out” notice for Barbosa’s car. Id. at 4.

         The Application reports further that Officer Sirois assisted Jillian Poeira in filling out a complaint for an emergency restraining order, per her request, and called Judge Abber, who issued the order. Id. Officer Sirois checked for, but did not find, any outstanding warrants or restraining orders as to Barbosa and Jillian Poeira. Id. Officer Sirois did find that Barbosa had a “lengthy BOP (Board of Probation record) in Massachusetts including firearms charges and other violent crimes.” Id.

         According to New Bedford Police Detective Michael J. Melo’s Supplemental Narrative Report dated August 10, 2015, Jillian Poeira spoke with Sergeant Holmes of the New Bedford Police Department about Barbosa on Monday August 10, 2015, prompting Sergeant Holmes to direct Detective Melo to check on the status of the requested warrant. See Govt’s Resp. Court Inquiry Ex. 1 2 [#44-1]. Detective Melo reports that he spoke with “Maria in the clerks office [sic] who confirmed a warrant for John Barbosa for armed home invasion.” Id. Detective Melo reports further that he then went with Officer Lucas to his unit and that Officer Lucas “again confirmed on his data terminal an active warrant for John Barbosa.” Id. This statement was corroborated by Officer Lucas who testified that shortly before arresting Barbosa, he logged onto the Warrant Management System database from a computer in his police cruiser and confirmed that a warrant had issued from New Bedford District Court for Barbosa’s arrest.

         At approximately 1:22 p.m. on Monday August 10, 2015, Officer Lucas, Detective Melo and other New Bedford Police officers entered the New Bedford Public Library and arrested Barbosa. A firearm and ammunition were seized from a bag near Barbosa.

         III. Discussion

         A. Existence of a Valid Arrest Warrant

         Barbosa contends that the search incident to arrest was not lawful because the government has not demonstrated that an arrest warrant that is valid under Massachusetts law was issued prior to his arrest. For an arrest pursuant to an arrest warrant to be lawful, the warrant must have validly issued prior to the arrest. Burke v. Town of Walpole, 405 F.3d 66, 78 (1st Cir. 2005). Barbosa points to Mass. Gen. Laws ch. 276, § 22, which requires that warrants “compl[y] with the provisions of the Massachusetts Rules of Criminal Procedure, ” and Massachusetts Rules of Criminal Procedure 6(b)(1), which requires that an arrest warrant be “signed by the official issuing it.” He attaches to his memorandum a printout from the Warrant Management System. That printout states that it was printed at 2:00 p.m. (which was after Barbosa’s 1:22 p.m. arrest) “but does not disclose the time of issuance” and has “no authorized signature apparent.” Def.’s Mem. Law Supp. Mot. Suppress 4 [#37]; see also id. Ex. B [#37-2]. The printout does state, however, that “Pursuant to Massachusetts General Laws ch. 276 s.23A this is a TRUE WARRANT on the person named herein as contained in the Warrant Management System. . . .” Def.’s Mem. Law Supp. Mot. Suppress Ex. B [#37-2]. The printout further names John A. Barbosa as the “defendant, ” states that the “Issue Date” of the warrant is August 10, 2015, and lists Patrick Walsh in the space for “Judge’s Name.” Id.

         The government offers an additional document to establish the validity of the warrant. The document is a copy of Officer Sirois’s Application for Criminal Complaint from August 8, 2015 with additional notations setting forth the date “8-10-15, ” checked boxes under the line “complaint to issue” for “probable cause found for above offense(s), ” “offense no(s). 1, ” “based on facts set forth in the attached statement(s), ” and “warrant to issue, ” and the initials “PW” in the box titled “Clerk/Judge.” Id. at 2.[1]

         Officer Sirois, a 27-year veteran of the New Bedford Police Department and the officer who interviewed the Poeiras and made out the Application for Criminal Complaint, testified to the general procedure for applying for, issuing, and checking for warrants based on his experience. Officer Sirois testified that once an officer prints and signs the Application for Criminal Complaint, he sends it to New Bedford District Court for a clerk-magistrate to determine whether the application establishes probable cause. If so, the clerk-magistrate checks the boxes on the first page of the Application for Criminal Complaint for “probable cause” and “to issue a warrant” and signs or initials the Application for Criminal Complaint. A court clerk then enters the information into a computerized Warrant Management System, a statewide database of active warrants. Based on his training and experience, Officer Sirois stated his understanding that the creation of the Warrant Management System eliminated physical paper warrants. It is also his understanding that the warrant becomes ...

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