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United States v. Bonilla

United States District Court, D. Massachusetts

September 22, 2016



          Denise J. Casper United States District Judge

         I. Introduction

         Defendant 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.

         II. Findings of Fact

         These 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.

         A. Information from the Confidential Informant

         On June 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 he[1] 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.

         During 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. Id.

         Lagoa 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.

         B. Surveillance Around 45 Nelson Street

         In 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.

         Lagoa 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, 72.

         C. Stop of Bonilla

         Bielski 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 ...

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