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United States v. Silva

United States District Court, D. Massachusetts

April 6, 2017

UNITED STATES OF AMERICA
v.
ARCELINO SILVA, Defendant.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         Defendant Arcelino Silva stands indicted on one count of Possession with Intent to Distribute Heroin, Fentanyl, and Cocaine, in violation of 21 U.S.C. § 841(a)(1). He seeks to suppress all statements he made to police and all evidence seized on May 1, 2016. For the reasons set forth below, Defendant's Motion to Suppress Statements and Evidence [#55] is DENIED.

         I. Background[1]

         On the morning of May 1, 2016, two police officers were dispatched to an apartment complex in Holbrook, Massachusetts, for a reported assault and threats, including the threat from one individual that he “was going to get his ‘piece.'” When the officers arrived, a tenant's houseguest (“Complainant #1”) reported that she and two tenants were outside when another tenant, Jennifer Andrade (Defendant's girlfriend), drove by in a Chevy Cruze (“the vehicle”) and made an obscene gesture. Complainant #1 reported further that a week earlier, she had seen Andrade's boyfriend counting money in the rear of the vehicle, with drugs in his lap, and she had complained to Andrade, and since then, whenever Andrade drove by, they had words. On this most recent occasion, following a verbal altercation between Complainant #1 and Andrade, Andrade spat in Complainant #1's face, while Andrade's boyfriend held Andrade back. A witness corroborated seeing Andrade spit in Complainant #1's face.

         Andrade denied spitting on Complainant #1, and her boyfriend, the Defendant, denied threatening anyone or referencing a gun. Andrade consented to a search of the vehicle. No firearm was found.

         While the officers were still on the scene, a male tenant (“Complainant #2”) reported that Defendant “told him he would see him at midnight and show him what a real n**** could do.” Complainant #2 expressed concern that Defendant would confront him when he arrived home from work that night. Complainant #2 also complained that Defendant had been selling drugs in the parking lot.

         The officers made no arrests but indicated in the police report that they would request hearings in the Quincy District Court. Shortly after the officers' departure, Complainant #2 telephoned the police to report that Defendant was attempting to engage him in a physical altercation. When the officers returned, neither Defendant nor Andrade could be found.

         An officer who had responded that morning relayed this information to Sgt. William D. Marble, Jr., when he arrived for his shift. She further informed Sgt. Marble that a Brockton Police detective stated that Defendant “was a known drug dealer and was believed to carry firearms.” Sgt. Marble drove through the apartment complex numerous times to view the vehicle, but it was not there.

         At approximately 10:50 p.m., Sgt. Marble located the vehicle parked in the fire lane of the parking lot. He observed a man, whom he recognized to be Defendant, sitting in the front passenger seat with the interior light on. Defendant did not appear to notice Sgt. Marble, even though the sergeant was standing near the passenger front door. Sgt. Marble wrote in the report that, as Defendant opened the door and began to exit the vehicle, Sgt. Marble watched Defendant's hands out of concern that he may be armed. According to the report, “in the spot just before the door handle, ” Sgt. Marble observed a plastic baggie containing pills that he believed, based on his training and experience, to be Suboxone. Just after Defendant realized Sgt. Marble's presence, an unidentified woman exited the building, and Defendant began to walk toward her. Sgt. Marble asked Defendant about the pills, and he replied, “[They're] not mine.” Sgt. Marble asked what they were, and Defendant responded, “[S]uboxone.” When Sgt. Marble inquired if Defendant had a prescription, Defendant repeated, “[They're] not mine.”

         When Defendant again began to walk away from the vehicle, Sgt. Marble “ordered him to sit back down, ” which he did. At that time, Sgt. Marble summoned at least one other officer to the scene. Defendant stated multiple times that neither the Suboxone nor the vehicle belonged to him. Sgt. Marble informed him he was under arrest. A pat down uncovered several thousand dollars in cash. After Defendant was transported to the police station for booking, officers searched the vehicle, including its middle console, and uncovered bags of powdered substances later confirmed to be cocaine and heroin, several thousand dollars in cash, and additional evidence.

         II. Analysis

         Defendant now seeks to suppress his statements to Sgt. Marble and the evidence seized during the search of the vehicle and his person.

         A. The Statements

         Defendant contends that his statements must be suppressed because he was arrested without probable ...


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