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Commonwealth v. Barbosa

Appeals Court of Massachusetts, Suffolk

January 3, 2018


          Heard: September 8, 2017.

         Indictments found and returned in the Superior Court Department on June 30, 2015. A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Fernande R.V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.

          Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.

          Michael P. Doolin for the defendant.

          Present: Rubin, Neyman, & Henry, JJ.

          NEYMAN, J.

         After an evidentiary hearing, a Superior Court judge allowed, in part, the defendant's motion to suppress evidence. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to file an interlocutory appeal, and reported the matter to this court. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The sole issue is whether the judge erred in suppressing a statement made by the defendant based on limitations set forth in G. L. c. 276, § 1, and Commonwealth v. Blevines, 438 Mass. 604 (2003), regarding the use of evidence seized incident to an arrest. We reverse.


         The parties do not contest the judge's comprehensive findings of fact, which we summarize, supplemented where appropriate by the testimony from the motion hearing.[1] See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). This case stems from an investigation into the crime of trafficking of persons for sexual servitude, G. L. c. 265, § 50 (human trafficking), [2] which was prompted by an illicit online advertisement on the Web site (Backpage). On May 7, 2015, as part of that investigation, Detective Ludwik Bartkiewicz, along with State and Federal law enforcement officers, went to the Park Plaza Hotel (hotel) in Boston to locate the person who had posted the advertisement on Backpage.[3]Around 10:00 A.M., the officers met the hotel's head of security on the first floor of the hotel. One of the officers, Agent Tony Freitas, telephoned the number listed in the Backpage advertisement. A woman answered and told him to come to the fifth floor via the service elevator. Agent Freitas stayed behind while the other officers followed her direction by taking the service elevator to the fifth floor. Agent Freitas then telephoned the number again. The woman told him to come to room 540. Agent Freitas relayed this information to Detective Bartkiewicz, who was among the officers on the fifth floor. The officers proceeded to room 540, knocked on the door, identified themselves as law enforcement to the woman who answered, and asked to speak with her. The woman invited them into the room. Upon learning that she was speaking with law enforcement officers, she "became very agitated." She "was visibly crying and shaking." She told the officers, "You guys can't be here. He's coming." Detective Bartkiewicz observed that the room was "sort of disheveled." He also noticed that the woman had a telephone in her hand that was continuously ringing.

         Agent Freitas then contacted Detective Bartkiewicz and advised that the defendant, who was the target of the investigation, [4] was heading upstairs. Detective Bartkiewicz observed the defendant and Agent Freitas step out of the elevator onto the fifth floor. Agent Freitas nodded toward the defendant "to confirm for Bartkiewicz that [the defendant] was the man Freitas had been waiting for." The defendant walked from the elevator toward room 540. After the defendant walked past him, Detective Bartkiewicz stated that he was a police officer and asked to speak with the defendant. The defendant was approximately eight to ten feet from room 540 at this time. Next, the following occurred:

"[The defendant] stopped walking, turned toward Bartkiewicz, and said[, ] 'No.' [The defendant] then started to put his right hand, the one holding the cell phone, in his pocket. So Bartkiewicz took a few steps forward, told [the defendant] to keep his hands [out of] his pocket, and put his own hand on [the defendant's] right hand, to ensure that [the defendant] kept it in sight. Bartkiewicz then reiterated, '[W]e just want to talk to you.[']
"In response, [the defendant] said[, ] 'No, I don't need to talk to you.' [The defendant] then put his hands on Bartkiewicz's shoulders, pushed Bartkiewicz out of his way, and started to run back toward the elevators. [The hotel's head of security], who was also in the hallway, blocked [the defendant's] path and pushed [him] into a door. [The defendant] fell, got back up, and ran toward the elevators. Agt. Freitas and Agt. [Peter] Darling grabbed, subdued, and eventually handcuffed [the defendant]. By this point [the defendant] was lying face down on the floor. The officers put [the defendant] in a sitting position.
"Det. Bartkiewicz informed [the defendant] of his Miranda rights. . . . Bartkiewicz patted [the defendant] down and searched his pockets. [Bartkiewicz] found and removed a hotel room key, a knife, about $500 in cash, and some prepaid credit cards from [the defendant's] pants pockets. Bartkiewicz asked [the defendant] what room the key was for. [The defendant] said it was Room 540. . . . Bartkiewicz ...

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