United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Carlos Caraballo Bonilla (“Bonilla”) has moved to
suppress a firearm and ammunition seized by the New Bedford
Police on June 17, 2015. D. 44. Having considered the motion
(and reply brief, D. 48), the government's opposition, D.
45 and the evidence (including testimony and exhibits)
presented at the evidentiary hearing on the motion, D. 51,
56, the Court DENIES the motion. Accordingly, the Court makes
its findings of fact and legal analysis below.
Findings of Fact
findings are based upon the exhibits, Exhibits 1-10, and the
testimony of New Bedford Detective Jonathan Lagoa
(“Lagoa”), Detective Sergeant Evan Bielski
(“Bielski”) and Officer Carlos Depina
(“Officer Depina”) introduced at the suppression
hearing. D. 53, 56.
Information from the Confidential Informant
17, 2015, at approximately 10:30 a.m., a confidential
informant (“CI”) contacted Lagoa. D. 53 at 6, 9,
13. Lagoa had previously received information from this CI, a
heroin user, regarding three narcotics distributors in New
Bedford, including information about their locations and
vehicles. Id. at 8, 33, 35, 38. This CI had only be
activated by the police department sixteen days before
called Lagoa on June 17th. 8/2/16 Hearing Day 2
transcript at 9. Although the CI had previously provided
information, Lagoa had only recently begun to get information
from him and he had only been paid for information on this
one occasion. Id. at 35. Accordingly, the police
department log of information provided by an informant listed
only the information that the CI provided for the June 17,
2015 stop, but not any of information that the CI previously
provided. Exh. 10; 8/2/16 Hearing Day 2 transcript at 7. This
previous information had been corroborated by other members
of the New Bedford Organized Crime Intelligence Bureau who
had been conducting investigations of these distributors,
id. at 8, 36, but such prior information had never
been relied upon to obtain a search warrant, conduct a stop,
make a controlled buy of narcotics or make an arrest.
Id. at 35-36, 37; 8/2/16 Hearing Day 2 transcript at
8. To Lagoa's knowledge, the CI had not provided
information that was false. Id. at 8-9.
the call, that lasted approximately five minutes, the CI
informed Lagoa that a man known as “Carlos” had a
black firearm and ammunition. Id. at 9, 10, 11, 14.
Although he mentioned both firearm and ammunition, the CI did
not indicate whether the firearm was loaded. Id. at
45. The CI described Carlos as a thin Hispanic male wearing a
black T-shirt and a black hat backwards. Id. at 10.
The CI gave no further physical description and made no
mention of tattoos. Id. at 47-48. He noted that
Carlos was a known drug user and that he believed that he did
not have a license to carry a firearm. Id. at 10.
The CI further stated that Carlos was at 45 Nelson Street in
New Bedford, but did not indicate in which unit at the
multi-unit building there. Id. at 10, 41. The CI
indicated that he had seen the firearm in Carlos's
possession and had done so within the previous hour.
was familiar with the 45 Nelson Street address since the
police had received multiple tips from confidential
informants about drug activity there, although not associated
with any particular unit in the building, but with all of the
units there. Id. at 11, 40. From prior visits there,
Lagoa knew that there was a multi-unit dwelling at that
address and that it was located in the South End of the city.
Id. at 11-12. This area, approximately eight to ten
square miles in the city, is considered a high-crime area,
known for violent crimes, narcotics investigations and a gang
presence. Id. at 12-13, 39, 83. The day before
receiving the information from the CI regarding this matter,
there had been shots fired two blocks away, but an arrest
regarding that matter had been made already at the time of
the CI's call to Lagoa and he was not aware that the
police were looking for any other suspects in connection with
that matter. Id. at 13, 44-45.
Surveillance Around 45 Nelson Street
response to the CI's call, Lagoa contacted two uniformed
officers, Depina and Bielski, to, in Lagoa's words,
“assist in stopping Carlos, if he left the residence of
45 Nelson Street.” Id. at 15, 81-82, 108.
Lagoa wanted them to assist in this way since they were in
uniform and he was not. Id. Lagoa spoke first with
Depina, conveying the information from the CI including the
description of Carlos. Id. at 15-16; 139. He asked
the officer to stay off Nelson Street so that Carlos would
not be alerted to any police presence. Id. at 16.
Lagoa then had a similar conversation with Bielski.
Id. at 16, 81.
himself traveled to the area of 45 Nelson Street, arriving
approximately ten-twenty minutes after his call with the CI,
to begin surveillance. Id. at 14, 17, 18. He parked
on Nelson Street, east of County Road, a number of houses
down from 45 Nelson Street. Id. at 18, 49-50;
Exhibits 1-3. Lagoa was not sure how long he conducted
surveillance, but estimated that it was longer than fifteen
minutes, but less than thirty minutes. Id. at 62.
From this location, he observed a male of thin build wearing
a black T-shirt and black hat. Id. at 18, 55. This
individual appeared on the porch of 45 Nelson Street for a
short time and then began to walk down Nelson Street, away
from the area in which Lagoa was parked. Id. at 18.
Upon this observation, Lagoa radioed Depina and Bielski to
report his observations and the fact that the male was
walking west on Nelson Street so that they could proceed in
that direction. Id. at 18, 63. Lagoa began to drive
west as well, slowly approaching and then passing the male
and observing that his appearance appeared consistent with
the information that the CI had provided. Id. at
19-20, 55. Upon such further observation, Lagoa again radioed
the other officers to indicate that this was probably the
individual that the CI had described. Id. at 19. As
Lagoa passed the male and turned on Crapo Street, he saw his
two fellow officers approaching the corner. Id. at
67; Exhibit 6. Lagoa did not stop at that point, but circled
around the block. Id. at 20-21. Upon doing so, which
took approximately two minutes, he saw that the other two
officers had stopped the male, later identified as Bonilla,
near the corner and were lifting him off the ground in
handcuffs. Id. at 21, 69-70, 77. Lagoa, who was
driving an undercover vehicle, did not stop at the scene, but
instead headed back the police station. Id. at 21,
Stop of Bonilla
and Depina, at Lagoa's request, had set up surveillance
in the vicinity, near Jouvette and Crapo Streets.
Id. at 86. Approximately ten minutes after arriving,
Bielski received a transmission from Lagoa that he had
observed a male fitting the CI's description walking out
of 45 Nelson Street, heading west. Id. at 87.
Following this call, Bielski and Depina, who were in separate
marked cruisers, met up near Crapo Street and began walking
down Nelson Street. Id. at 88-89, 92, 141; Exhibit
7. Both officers had firearms; as the two walked toward
Nelson Street, Officer Depina unholstered his firearm and was
carrying it at his left side. Id. at 92-93, 143-45.
As the officers got to the corner of Crapo and Nelson
Streets, a Hispanic male, wearing a black shirt and black
hat, later identified as Bonilla, came around the corner.
Id. 93-94; Exhibit 6. Depina indicated that Bonilla
appeared “nervous and stunned.” Id. at
147. He was concerned about Bonilla pulling a firearm on the
officers. D. 53 at 177. The two uniformed officers were
walking shoulder to shoulder. Id. at 113-14, 160.
The officers' first exchange with Bonilla was Depina
immediately ordering him to get down on the ground.
Id. at 94, 114, 148, 160. Depina still had his
firearm out, down at his side. Id. at 161. After
Bonilla complied, Depina holstered his firearm and put him in
handcuffs and Bielski turned him on his right side.
Id. at 94, 97, 148. As Bielski rolled him on to his
right side, he observed a firearm tucked into his waistband.
Id. at 98, 149. Bielski alerted Depina to the
presence of the firearm and removed it from Bonilla's
person. Id. at 99, 172. Bielski then informed him of
his Miranda rights. Id. Once they discovered the
firearm, they called Lagoa to inform him of this discovery.
Id. at 131. The officers then stood the handcuffed
Bonilla up and conduct ...